The Jurisprudence of Emergency

The Jurisprudence of Emergency

Law, Meaning, and Violence The scope of Law, Meaning, and Violence is defined by the wide-ranging scholarly debates signaled by each of the words in the title. Those debates have taken place among and between lawyers, anthropologists, political theorists, sociologists, and historians, as well as literary and cultural critics. This series is intended to recognize the importance of such ongoing conversations about law, meaning, and violence as well as to encourage and further them. Series Editors: Martha Minow, Harvard Law School Elaine Scarry, Harvard University Austin Sarat, Amherst College Narrative, Violence, and the Law: The Essays of Robert Cover, edited by Martha Minow, Michael Ryan, and Austin Sarat Narrative, Authority, and Law, by Robin West The Possibility of Popular Justice: A Case Study of Community Mediation in the United States, edited by Sally Engle Merry and Neal Milner Legal Modernism, by David Luban Surveillance, Privacy, and the Law: Employee Drug Testing and the Politics of Social Control, by John Gilliom Lives of Lawyers: Journeys in the Organizations of Practice, by Michael J. Kelly Unleashing Rights: Law, Meaning, and the Animal Rights Movement, by Helena Silverstein Law Stories, edited by Gary Bellow and Martha Minow The Powers That Punish: Prison and Politics in the Era of the Big House, 1920 1955, by Charles Bright Law and the Postmodern Mind: Essays on Psychoanalysis and Jurisprudence, edited by Peter Goodrich and David Gray Carlson Russia s Legal Fictions, by Harriet Murav Strangers to the Law: Gay People on Trial, by Lisa Keen and Suzanne B. Goldberg Butterfly, the Bride: Essays on Law, Narrative, and the Family, by Carol Weisbrod The Politics of Community Policing: Rearranging the Power to Punish, by William Lyons Laws of the Postcolonial, edited by Eve Darian-Smith and Peter Fitzpatrick Whispered Consolations: Law and Narrative in African American Life, by Jon-Christian Suggs Bad Boys: Public Schools in the Making of Black Masculinity, by Ann Arnett Ferguson Pain, Death, and the Law, edited by Austin Sarat The Limits to Union: Same-Sex Marriage and the Politics of Civil Rights, by Jonathan Goldberg-Hiller From Noose to Needle: Capital Punishment and the Late Liberal State, by Timothy V. Kaufman-Osborn Communities and Law: Politics and Cultures of Legal Identities, by Gad Barzilai The Jurisprudence of Emergency: Colonialism and the Rule of Law, by Nasser Hussain

The Jurisprudence of Emergency Colonialism and the Rule of Law Nasser Hussain The University of Michigan Press Ann Arbor

Copyright by the University of Michigan 2003 All rights reserved Published in the United States of America by The University of Michigan Press Manufactured in the United States of America c Printed on acid-free paper 2006 2005 2004 2003 4 3 2 1 No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, or otherwise, without the written permission of the publisher. A CIP catalog record for this book is available from the British Library. Library of Congress Cataloging-in-Publication Data Hussain, Nasser, 1965 The jurisprudence of emergency : colonialism and the rule of law / Nasser Hussain. p. cm. (Law, meaning, and violence) Includes bibliographical references and index. isbn 0-472-11328-3 (cloth : acid-free paper) 1. War and emergency legislation. 2. Sovereignty. 3. Rule of law. 4. Colonies Law and legislation. I. Title. II. Series. k3344.h87 2003 340'.11 dc21 2003005027

To my parents and Omar

Contents Chapter 1. Acknowledgments Introduction: The Historical and Theoretical Background 1 Chapter 2. The Colonial Concept of Law 35 Chapter 3. Chapter 4. The Writ of Liberty in a Regime of Conquest: Habeas Corpus and the Colonial Judiciary 69 Martial Law and Massacre: Violence and the Limit 99 Conclusion A Postcolonial Postscript 133 Appendix A Appendix B The Administrative Structure of Justice in British India 145 The History of Nineteenth-Century Legal Codification in British India 149 Notes 153 Bibliography 175 Index 185 ix

Acknowledgments This book began as a dissertation at the University of California, Berkeley. My thanks to all of my teachers there: Tom and Barbara Metcalf, Tom Laqueur, David Lieberman, David Lloyd, Eugene Irschick, and Martin Jay. Thank you to the Harvard Society of Fellows, and in particular Amartya Sen, for offering me time and space to work. I completed this manuscript at Amherst College, and I thank my colleagues in the Department of History and the Department of Law, Jurisprudence, and Social Thought. My colleagues and dear friends in the latter department, Lawrence Douglas and Martha Umphrey, read and commented on the manuscript, and I thank them both. In particular, I would like to express my great gratitude to Austin Sarat for his constant support and his dedication to nurturing the work of junior scholars. The Henry R. Luce Foundation not only underwrote my position at Amherst College but also was generous in support of further research. Thank you also to Lisa Raskin, the Dean of Faculty at Amherst College. Melissa Ptacek and James Martel have been constant interlocutors throughout this undertaking and I thank them for their intellectual and emotional support. Thanks to many other friends: Dipesh Chakrabarty, Jennifer Culbert, Faisal Devji, Tom Dumm, Peter Goodrich, Piyel Haldar, Uday Mehta, Peter Rush, and Alison Young. An earlier version of parts of chapters 1 and 4 appeared in Law and Critique 10 (1999). Thank you to that journal and to Kluwer Academic Publishers for permission to reprint.