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Book Review
| Nasser Hussain, The Jurisprudence of Emergency: Colonialism and the Rule of Law, Ann Arbor: University of Michigan Press, 2003. Pp. 192. $59.50 (ISBN 0-472-11328-3).
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| This fascinating book is about law and emergency—the origins, timing, and significance of the state's periodic interruptions of ordinary law. The study is both a monograph and a work of theory. The main focus is the historical understanding of British colonial rule in India, and the larger aim is to reflect on the origins and symbolic constitution of the rule of law. |
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The central argument of the book builds upon Carl Schmitt's definition of the sovereign as "he who decides on the exception" (15). The jurisprudence of emergency—including martial law and the suspension of habeas corpus—helps to constitute the rule of law in part because defining ordinary law depends upon a description of its absence. Hussain's view is that this relation is true of all legal orders but is especially visible in colonial situations. |
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Hussain elaborates these points in an interesting, theoretical first chapter that also lays the groundwork for the study of legal change in British India. Assertions about the crucial role of emergency in the definition of sovereignty are original and compelling, and they are supported by a useful discussion of English perspectives on the law of conquest and colonization. In shifting his attention to colonial law, Hussain observes that representations of difference became inextricably tied with forms of colonial rule. |
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The introduction is followed by a series of chapters on English colonial law and on Indian practice. Chapter 2 proposes that English policies in India were shaped by a discourse about Oriental despotism that was not entirely novel but instead reflected the embeddedness in the English common law of the potential for "British despotism" (78). The contrast between the built-in possibility of interruptions of the rule of law and the deliberate construction and enforcement of legal rules gave the codification movement its emphasis on procedure as the core of English legal reform. Chapters 3 and 4 play out this contrast between exception and normalcy by treating, in turn, the uses and suspension of habeas corpus in British India and the manner and purpose of invoking martial law in British colonies. |
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The idea of "a writ of liberty in a regime of conquest" was contradictory, Hussain points out (72). Rather than simply restricting the right of habeas corpus, the British extended it and then suspended it, in moves that changed the underlying definition of "rights" by making them inseparable from colonial institutional forms. Hussain goes on to trace the overlapping nature of the history of the writ and of jurisdictional tensions within colonialism, arguing that jurisdictional confusion acted to support a new interventionist role for the state. In tracing a little studied but clearly important aspect of colonial law, the chapter also provides historical background to current legal debates surrounding the U.S. Supreme Court's deliberations about the right to habeas corpus of the detainees at Guantánamo Bay. |
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Martial law, Hussain argues in Chapter 4, was similarly fundamental to the construction of colonial sovereignty. The potential for martial law was not peculiar to the colonies but was inherent in the English common law. Yet in the colonies, the rationale for declaring martial law came to rest clearly on the perceived difference of colonial subjects and colonial conditions. Thus while the trend in English law was to broaden the definition of necessity, this tendency emerged more sharply in colonial settings, where racial differences were invoked to explain the need for emergency measures. A particular strength of this chapter is its inclusion of examples from other parts of empire, including Jamaica, South Africa, and Ireland. |
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Together these chapters provide the material for Hussain's reflections upon, as he puts it, the "fundamental relation between normativity of law and the singularity of the exception" (135). The last chapter argues that this relation continues to have determining force in postcolonial settings. While this assertion seems unobjectionable, the discussion of the literature on globalization does little to enhance Hussain's main points and shifts attention from his more interesting claims about the role of emergency. This dilution of the argument recalls a similar moment in the first chapter when Hussain borrows language from subaltern studies scholars to describe a blocked movement of the Indian state towards "modern completion." This framing seems unnecessary to the argument and is potentially at odds with the author's view of Indian state formation as multi-directional and shaped by the actions of both colonizers and colonized. Indeed, careful reading suggests that Hussain is questioning more than endorsing the views of Chatterjee and Guha, or Hardt and Negri, but one wishes for a bit more clarity about the ways in which ideas about emergency might modify or challenge their approaches. |
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Where the book remains focused on its themes, it is more tightly argued and also more original. Hussain does not repeat the mistakes of some scholars who, when drawing on Carl Schmitt's ideas to analyze the colonial world, rely on his formulation of a sharp division between a "lawless" zone outside Europe and the construction of Europe as the center of international law in the long nineteenth century. Hussain mines Schmitt's work judiciously and avoids representing the rule of law as the exclusive property of Europe. The result is a thought-provoking and important series of essays on the complex relation between emergency and the rule of law and on the mutual influence of law in Britain and law in empire. |
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| Lauren Benton
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| New York University |
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