Martial Law and the Fight Against Terrorism: Discretion, Regulation, and Emergency Powers

Abstract

The paper examines a distinct mechanism - martial law - which was devised in the common law to deal with the need for greater scope of governmental powers in the face of exigencies while maintaining checks and limitations on the exercise of such powers. This, however, is not a mere historical study. As the paper shows, the story of martial law teaches us many valuable lessons that are still very relevant today in the post September 11th world. The paper starts by reviewing the debates concerning the legal basis for martial law. It seeks to situate the discussion within the parameters of a broader typology of emergency powers that distinguishes among three possible emergency regimes, i.e., business-as-usual, accommodation, and extra-legal. There are two traditional competing accounts of the legal foundations of martial law. According to the dominant view, martial law derives from a more general common law right to repel force by force. An alternative view locates the legal foundation for martial law in the Crown's prerogative. Whereas under the former approach there is one legal system that is applicable in normal times and in times of grave crises, the prerogative approach identifies emergency powers in general and martial law powers in particular as constituting a special system that is geared towards overcoming exigencies. However, that special emergency system is still part and parcel of the legal system and does not operate outside it. Emergencies may invoke the use of extraordinary powers that are not available in ordinary times, but such extraordinary powers are legal powers all the same. Thus, both approaches consider martial law to be a legal mechanism, operating within a broader constitutional framework. A third possible position views martial law as an extra-legal mechanism that is not linked to a common law right or to the prerogative. The paper than tracks the development of martial law in the United Kingdom and argues that it demonstrates the untenable nature of what I call the assumption of separation, which is based on the belief in our ability to separate emergencies and crises from normalcy. Specifically, the paper demonstrates the difficulties that plague attempts to maintain such separation between normalcy and emergency by relying on mechanisms that are designed to maintain temporal, spatial or communal distinctions. It focuses on the migration of emergency mechanisms not from one legal system to another, but among different territories that constitute a single control system.