From the State of Emergency to the Rule of Law: The Evolution of Repressive Legality in the Nineteenth Century British Empire

By Roberts, Christopher | Chicago Journal of International Law, Summer 2019 | Go to article overview

From the State of Emergency to the Rule of Law: The Evolution of Repressive Legality in the Nineteenth Century British Empire


Roberts, Christopher, Chicago Journal of International Law


I. Introduction

Across the former British Empire, human rights advocates encounter similar modes of rights violations in country after country. Among the repressive techniques encountered are declarations of states of emergency, often accompanied by the use of special and military tribunals;1 a reliance upon overmilitarized security services, generally operating with impunity;2 the imposition of collective punishments;3 limitations on and the use of excessive force against assemblies;4 controls on the press and trials of those mounting public criticisms on charges of sedition or libel;5 and sharp limits to the formation and operation of civil society associations.6

When, where, how and why did these techniques of repression arise, and how did they develop over time? The history of such measures is, needless to say, complex. One thing is clear however-the history of these measures cannot be recounted without considering the history of global empire. Inevitably, imperial rule was met with local resistance, though naturally the forms of that resistance varied from place to place and time to time. In response, imperial powers developed a new range of tools in order to suppress local resistance. Such new modes of repression, in turn, gave rise to new modes of resistance. Thus, resistance and repression quickly became locked in a cycle of mutually reinforcing coevolution.

This Article tracks the development of such repressive legal tools in the most extensive and powerful global empire, the British Empire, by examining the development of such tools in Ireland over the course of the nineteenth century and their subsequent dissemination across the empire in the years that followed. In most instances such measures were not adopted according to some grand scheme or design, but rather on an ad hoc basis in response to particular challenges and according to contingent features of local situations at different moments in time. Nonetheless, once new tools of repression were adopted, they had a tendency to become entrenched and to proliferate-testifying to the fact that repressive powers are much more readily agglomerated than they are stripped away.

A.Theorizing Emergency Rule

The repressive regimes in question bear a complex relationship to the idea of military or emergency rule.7 Emergency rule was seen as troubling in the British Empire both due to the conflict between the measures taken in such a situation and 'rule of law' norms,8 as well as due to the fact that declaring martial law was tantamount to admitting a particular situation had gotten out of control, an admission of failure on the part of the authorities. The repressive regimes examined in this Article were hence seen as superior to emergency rule, insofar as they replaced it with a more regularized legal order. At the same time, however, the repressive approaches adopted in such a context did not simply replace emergency rule with an entirely separate order. Rather, they invariably ended up incorporating various components of that rule into an increasingly standardized, routinized everyday legal practice.

A natural place one might look to obtain a better understanding of how and why this took place is the scholarly literature on states of exception and emergency rule more broadly. There are two prominent branches in this literature-one more theoretical, one more practical. On the theoretical side, three authors stand out. First, Carl Schmitt has been particularly influential. In simplest terms, Schmitt argues that exceptional situations will arise from time to time; that any attempt to limit by law the recourse to, and the boundaries of, exceptional measures will be doomed to failure; and that this is not a bad thing, as the ability to proceed through exceptional measures is necessary in order to meet the emergencies that will be faced.9 Schmitt's argument is hence open to challenge on numerous grounds. Normatively, his support of the state of exception is problematic given the political trajectory of his career. …

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