The Jurisprudence of Emergency: Colonialism and the Rule of Law, by Nasser HussainA Jurisprudence of Power: Victorian Empire and the Rule of Law, by R. W. Kostal

Abstract

Reviewed by: The Jurisprudence of Emergency: Colonialism and the Rule of Law, and: A Jurisprudence of Power: Victorian Empire and the Rule of Law David Wayne Thomas (bio) The Jurisprudence of Emergency: Colonialism and the Rule of Law, by Nasser Hussain; pp. x + 194. Ann Arbor: University of Michigan Press, 2004, $65.00, £41.50. A Jurisprudence of Power: Victorian Empire and the Rule of Law, by R. W. Kostal; pp. xiii + 529. Oxford and New York: Oxford University Press, 2005, £84.00, £29.99 paper, $145.00. Although scholars have always viewed law as a key point of articulation for the British Empire at all its stages, the topic has been under intensive scrutiny in recent years and especially with regard to the administration of India. Radhika Singha’s important study A Despotism of Law: Crime and Justice in Early Colonial India (2000) examines administrative and policing developments under the British East India Company. Elizabeth Kolsky has done much the same with respect to a later context (“Codification and the Rule of Colonial Difference: Criminal Procedure in British India,” Law and History Review 23.3 [Fall 2005]: 631–83). And Sudipta Sen’s A Distant Sovereignty: National Imperialism and the Origins of British Difference (2002) invokes issues of law and empire in the context of a more generalized problematic of the colonial state’s claims of authority and legitimacy. In this critical landscape, the two works under review here stand out in both method and substance. Neither mainstream historians nor postcolonialist cultural critics, R. W. Kostal and Nasser Hussain are each academic specialists in law who bring uncommon detail to questions of law’s fashioning and its itinerary through judicial interpretation. That said, Kostal and Hussain also differ importantly from each other. Kostal’s approach to law privileges history, with a methodology drawn directly from the historian’s toolbox. Hussain’s work, meanwhile, privileges theory. His concern is to reflect on the conceptual nature and development of categories such as sovereignty and the rule of law. From different angles, then, these two works shed new light on how the context of empire came to stage a variety of limit cases and breaking points in questions of law. One such limit case—the issue of martial law—is central to each of these studies. With his focus on the Jamaica affair, Kostal spotlights the most prominent British imperial invocation of martial law in the nineteenth century. In 1865, the governor of Jamaica, Edward Eyre, responded to a violent uprising at Morant Bay with an overwhelming exercise of power, declaring martial law on the east side of the island and bringing about through suppression and punishment the deaths of almost 500 supposed rebels. After a brief spell of general support for Eyre in the British homeland, a polarizing public controversy soon developed there. As Kostal demonstrates, however, even when historians refer to the Jamaica affair as an exercise of martial law authority, they generally neglect or move quickly past the concrete dimensions of the legal questions. From the legal perspective, the question was much less one of race or even of some claim for justice in the Empire than it was a question of general legal legitimacy. Eyre had declared martial law in one part of Jamaica, but he arrested George William Gordon in a non-martial-law portion of Jamaica, removed him to the martial-law region, and had him tried and executed under the aegis of martial law. To be sure, concerns about race and justice were relevant both to supporters and accusers of Eyre’s conduct. For Kostal, however, the Jamaica affair was only very modestly a scene of the British Empire’s awakening conscience in matters of colonial excess and racism. What fired the engines for many of Eyre’s opponents was a sense that his martial-law actions with respect to dark-skinned British subjects in Jamaica might finally revise and restrict the liberties of European British subjects at home. [End Page 479] Kostal devotes more than 500 pages to a scrupulous mining of newspaper and periodical publications, private correspondence, and official documents. (Readers who seek only the gist will therefore welcome the study’s concluding...