The Jurisprudence of Emergency: Colonialism and the Rule of Law

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University of Michigan Press, 11 նոյ, 2009 թ. - 192 էջ

Ever-more-frequent calls for the establishment of a rule of law in the developing world have been oddly paralleled by the increasing use of "exceptional" measures to deal with political crises. To untangle this apparent contradiction, The Jurisprudence of Emergency analyzes the historical uses of a range of emergency powers, such as the suspension of habeas corpus and the use of military tribunals. Nasser Hussain focuses on the relationship between "emergency" and the law to develop a subtle new theory of those moments in which the normative rule of law is suspended.

The Jurisprudence of Emergency examines British colonial rule in India from the late eighteenth to the early twentieth century in order to trace tensions between the ideology of liberty and government by law, which was used to justify the British presence, and the colonizing power's concurrent insistence on a regime of conquest. Hussain argues that the interaction of these competing ideologies exemplifies a conflict central to all Western legal systems—between the universal, rational operation of law on the one hand and the absolute sovereignty of the state on the other. The author uses an impressive array of historical evidence to demonstrate how questions of law and emergency shaped colonial rule, which in turn affected the development of Western legality.

The pathbreaking insights developed in The Jurisprudence of Emergency reevaluate the place of colonialism in modern law by depicting the colonies as influential agents in the interpretation and delineation of Western ideas and practices. Hussain's interdisciplinary approach and subtly shaded revelations will be of interest to historians as well as scholars of legal and political theory.

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The Historical and Theoretical Background
Chapter 2 The Colonial Concept of Law
Habeas Corpus and the Colonial Judiciary
Violence and the Limit
Conclusion A Postcolonial Postscript
Appendix A The Administrative Structure of Justice in British India
Appendix B The History of NineteenthCentury Legal Codification in British India
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Common terms and phrases

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Էջ 146 - WHEREAS it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law...
Էջ 124 - We must at present do our best to form a class who may be interpreters between us and the millions whom we govern ; a class of persons, Indian in blood and colour, but English in taste, in opinions, in morals, and in intellect.
Էջ 94 - ... affect any prerogative of the crown, or the authority of parliament, or the constitution or rights of the said company, or any part of the unwritten laws or constitution of the United Kingdom of Great Britain and Ireland, whereon may depend in any degree the allegiance of any person to the crown of the United Kingdom, or the sovereignty or dominion of the said crown over any part of the said territories.
Էջ 94 - ... to make laws and regulations for all persons, whether British or native, foreigners or others...
Էջ 67 - I believe that no country ever stood so much in need of a code of laws as India ; and I believe also that there never was a country in which the want might so easily be supplied.
Էջ 110 - Now a person, whether a magistrate, or peace-officer, who has the duty of suppressing a riot, is placed in a very difficult situation, for if, by his acts, he causes death, he is liable to be indicted for murder or manslaughter, and if he does not act, he is liable to an indictment on an information for neglect; he is, therefore, bound to hit the precise line of his duty...
Էջ 91 - O'Brien and the several exhibits therein referred to it is ordered that Monday the 23rd day of April instant be given to His Majesty's Secretary of State for Home Affairs to show cause why a writ of Habeas Corpus should not issue directed to...
Էջ 119 - Lordship, if you were to speak for six hundred years, instead of six hours, you would only prove the more to us that, unwritten if you will, but real and fundamental, anterior to all written laws and first making written laws possible, there must have been, and is, and will be, coeval with Human Society, from its first beginnings to its ultimate end, an actual Martial Law, of more validity than any other law whatever.

Հեղինակի մասին (2009)

Nasser Hussain was Professor of Law, Jurisprudence, and Social Thought at Amherst College.

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