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

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From the State of Emergency to the Rule of Law: the Evolution of Repressive Legality in the Nineteenth Century British Empire Chicago Journal of International Law Volume 20 Number 1 Article 1 1-1-2019 From the State of Emergency to the Rule of Law: The Evolution of Repressive Legality in the Nineteenth Century British Empire Christopher N.J. Roberts Follow this and additional works at: https://chicagounbound.uchicago.edu/cjil Part of the Law Commons Recommended Citation Roberts, Christopher N.J. (2019) "From the State of Emergency to the Rule of Law: The Evolution of Repressive Legality in the Nineteenth Century British Empire," Chicago Journal of International Law: Vol. 20: No. 1, Article 1. Available at: https://chicagounbound.uchicago.edu/cjil/vol20/iss1/1 This Article is brought to you for free and open access by Chicago Unbound. It has been accepted for inclusion in Chicago Journal of International Law by an authorized editor of Chicago Unbound. For more information, please contact [email protected]. From the State of Emergency to the Rule of Law: The Evolution of Repressive Legality in the Nineteenth Century British Empire Cover Page Footnote Max Weber Fellow, European University Institute. Thanks to the members of the European University Institute’s Legal and Political Theory and History of Ideas and Imperial History Working Groups. Thanks also to the editors of the Chicago Journal of International Law for their insightful comments and diligent support. This article is available in Chicago Journal of International Law: https://chicagounbound.uchicago.edu/cjil/vol20/ iss1/1 From the State of Emergency to the Rule of Law: The Evolution of Repressive Legality in the Nineteenth Century British Empire Christopher Roberts∗ Abstract Why are contemporary laws and techniques that state authorities use to crack down on political dissent so similar across countries? This Article argues that at least part of the answer may be found by turning to colonial history. The Article has two Parts. In the first Part, the Article explores the manner in which, over the course of the nineteenth century, the British deployed various different legal and institutional approaches in response to an Irish polity that consistently refused to submit to British authority. In the second Part, the Article examines the manner in which the approaches developed in Ireland were exported to other parts of the empire, in particular to India, South Africa, and Nigeria, over the course of the late nineteenth and early twentieth centuries. Along the way, the Article considers the big picture significance of such developments relative to the nature of the rule of law. While, over time, the deployment of increasingly legalized and formalized approaches may have played a positive role insofar as they served to soften and displace the potential for more direct violence, enabled by declarations of martial law, such developments came at the cost of the incorporation of much of the repressive approach employed in contexts of emergency rule into everyday legality. Far from conflicting with the rule of law, this development represented the form in which the expansion of the rule of law primarily occurred—serving to entrench and legitimize the repressive practices in question. ∗ Max Weber Fellow, European University Institute. Thanks to the members of the European University Institute’s Legal and Political Theory and History of Ideas and Imperial History Working Groups. Thanks also to the editors of the Chicago Journal of International Law for their insightful comments and diligent support. 1 Chicago Journal of International Law Table of Contents I. Introduction ................................................................................................................. 3 A. Theorizing Emergency Rule ................................................................................ 4 B. The Rule of Law .................................................................................................... 7 II. The Irish Laboratory................................................................................................. 9 A. Suppressing Popular Uprisings ......................................................................... 10 B. Preserving the Peace ........................................................................................... 14 C. Clamping Down on Unlawful Societies .......................................................... 16 D. Suppressing Tumultuous Disturbances .......................................................... 17 E. Combatting Crimes and Outrages .................................................................... 20 F. A Return to Outright Suppression ................................................................... 22 G. Protecting Life and Property ............................................................................ 23 H. Protecting Persons and Property ..................................................................... 25 I. Preventing Crimes, Controlling the Press ........................................................ 27 J. Conclusion: The Evolution of Repressive Legality in Nineteenth Century Ireland ........................................................................................................................ 29 III. Global Dissemination ........................................................................................... 33 A. India ...................................................................................................................... 35 1. Controlling Communications ........................................................................ 36 2. Preserving Order ............................................................................................. 38 3. Controlling the Press ...................................................................................... 40 4. Conclusion: Attempting to Prevent the Assembling of a National Consciousness ...................................................................................................... 42 B. South Africa ......................................................................................................... 43 1. Preserving the Peace ....................................................................................... 45 2. Establishing a Secure New Order ................................................................. 46 3. Controlling Labor Unrest .............................................................................. 48 4. Conclusion: Entrenching a Securitized Order ............................................ 48 C. Nigeria .................................................................................................................. 49 1. Clamping Down on the Press ....................................................................... 50 2. Legalizing Collective Punishment ................................................................. 51 3. Conclusion: Suppressing the Press, Punishing the People........................ 53 IV. Conclusion .............................................................................................................. 54 2 Vol. 20 No. 1 From the State of Emergency to the Rule of Law Roberts 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 over- militarized 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 1 See, for example, Media Rights Agenda v. Nigeria, Communication 224/98, AFRICAN COMMISSION ON HUMAN AND PEOPLES’ RIGHTS (Nov. 6, 2000), http://perma.cc/964X-SM2E; Centre for Free Speech v. Nigeria, Communication 206/97, AFRICAN COMMISSION ON HUMAN AND PEOPLES’ RIGHTS (Nov. 15, 1999), http://perma.cc/XE2F-N4KV; Egypt: 7,400 Civilians Tried in Military Courts: Torture, Disappearances Used to Elicit Confessions, HUMAN RIGHTS WATCH (Apr. 13, 2016), http://perma.cc/4DQ4-YH5X; The Military Courts, B’TSELEM (Nov. 11, 2017), http://perma.cc/9PZ5-FEQE. 2 See, for example, Meenakshi Ganguly, Security Forces in India Engage in Extrajudicial Killings, Then Are Protected: Protests against Shopian Encounter Killings Are a Reminder that Security Forces Need Deep Reforms, HUMAN RIGHTS WATCH (Mar. 20, 2018), http://perma.cc/C5PF-BXLD; Priscilla Nyagoah, Sudanese National Intelligence Service Empowered to Violate Human Rights, AMNESTY INTERNATIONAL (Mar. 19, 2015), http://perma.cc/5ZRL-5KWK. 3 See, for example, Israel: Surge in Unlawful Palestinian Home Demolitions: 126 in West Bank Left Homeless, HUMAN RIGHTS WATCH (Aug. 22, 2015), http://perma.cc/3GYC-P33L; Mass Trials and the Death Penalty in Egypt, REPRIEVE US (Apr. 4, 2018), http://perma.cc/C9CJ-SQG7; Nigeria: Military Massacres Unpunished: Obasanjo’s Human Rights Progress Called into Question, HUMAN RIGHTS WATCH (Apr. 1, 2002), http://perma.cc/96BM-8N7Z; Pakistan: End Collective Punishment in Swat: Forced Evictions, House Demolitions Undermine Fight against Taliban, HUMAN RIGHTS WATCH (July 22, 2010), http://perma.cc/DFZ2-RUAV. 4 See, for example, AFTE, EIPR, & CIHRS, THE RIGHT TO FREEDOM OF ASSEMBLY IN EGYPT (Mar. 15, 2014), http://perma.cc/T74F-Z7TP; Amnesty International Public Statement:
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