The jurisprudence of emergency: Sovereignty and the rule of law in British India

This dissertation is a study of one important aspect of British ideologies of rule in colonial India: the emphasis on a rule of law. It focuses in particular on the ways in which such an emphasis on a rule of law was reconciled with the political exigencies of a regime of conquest. This tension between the legal rights of the subject and the political needs of colonial government marks the entire history of British India. Such a history, however, only represents a more stark and better documented example of what has been perceived by many as a central conflict in western legal systems since the 18th century: the conflict between the operation of law as universal, formal and rational and the absolute sovereignty of the state. This study, therefore, is equally interested in the role of the colonies in the development of law and legal theory in the west.; The first two chapters are concerned with understanding different conceptions of law and authority. Chapter One focuses on the effects of the colonies on domestic legal and constitutional debates. It argues that these debates are animated by a fear that the efforts to constitutionally limit the monarch's power at home will be thwarted by the amplification of such power abroad. Chapter Two takes a closer look at the shape of a rule of law in colonial India. Given that the British did not wish to import all of English law into the colony and found the native form of rule to be objectionable, this chapter asks what the sources of law were in colonial India.; The next two chapters are more directly concerned with the question of emergency. Chapter Three examines the relation between the executive and judiciary, and focuses upon executive claims of discretionary power over matters of state and the efforts of the courts to offer legal protections such as habeas corpus. Chapter Four partly moves away from legal interpretations of emergency power to the administration of emergency rule in declarations of martial law. The Conclusion examines the effects of this history in postcolonial states.