The Law of Rules: Hyperlegalism,Emergency and the Violence of Procedure

I. Introduction

It may seem surprising that after some hundred and fifty years of regularly invoking the concept, scholars are still unclear about the meaning of the term “rule of law.” ¹ Or, perhaps more accurately, a perceived clarity that reigned for much of that period has come into question so that assumptions and presuppositions have been increasingly overturned, allowing new insights and new questions about this concept. In my opinion, one of the most important thinkers to call this concept into question is Nasser Hussain. ² It is not that Hussain doubts the efficacy or the power that comes from the idea of the rule of law; indeed, he recognizes it as a bastion of two global empires, first the British and then the American. The idea of rule of law, proclaimed by avid imperialists like the English jurist A.V. Dicey, was used to justify the domination of huge swaths of the earth first by one fairly small island and its people, and, more recently by a much bigger (but not ultimately that big) country.

As Dicey put it in his 1915 Introduction to the Study of the Law of the Constitution:

England, with the fervent consent of the people of every land subject to the rule of our King, has thus exchanged the prosperity of peace for the dangers and labours of war, not for the sake of acquiring new territory or of gaining additional military glory, for of those things she has enough and more than enough already, but for the sake of enforcing the plainest rules of international justice and the plainest dictates of common humanity. This is a matter of good omen for the happy development of popular government and for the progress, slow though it be, of mankind along the path of true fortitude and of real righteousness. ³

Here, we see the almost perfect marriage of British imperialism and the rule of law, firmly based on an idea of British – but really English – exceptionalism. The beauty of the English (and then later Anglo-American) practice of rule of law, Dicey boasted, was that, unlike its continental competitors (not to mention the rest of the world) the British legal system put strict limits on martial law. In this view, the heart and soul of the idea of rule and law has to do with emergency; in Anglo-American law, Dicey claims, emergency is always something separate from regular law. Accordingly, it is kept away, limited and held accountable to public institutions like the courts and congress or parliament (Dicey was quick to compare this British practice to practices on the European mainland where the strict separation from and limitations on martial law were – he said – far thinner and fewer). Yet one of Hussain’s key insights is that emergency is not what we think it to be. Far from being a zone of exception, a kind of lawless space that periodically emerges during times of crisis, emergency offers us just more of the same: the application of ordinary law into new and extraordinary contexts. And so, from Hussain’s perspective, the all-important distinctions that Dicey (and of course many other legal theorists as well) makes is based on a false dichotomy, one that serves to permit violence to disguise itself by contrasting itself to a state of emergency that is always being projected somewhere else.

One of Hussain’s most important ideas that helps to demystify the rule of law is his notion of hyperlegality. ⁴ Hyperlegality refers to zones of exception (such as Guantánamo) which, far from being free of law, are rather areas that have perhaps more law than anywhere else. What distinguishes such places, he tells us, “is not the use of an exceptional measure but the multiple use of an everyday measure.” ⁵ In this way, the rule of law cannot hide behind the pretense that it is holding back some kind of lawless monstrosity at the heart of politics as Schmitt would have us believe. Instead, under Hussain’s clear and firm gaze, we see something quite different. In his view, the law itself – very much including, perhaps even especially, its seemingly benign manifestation as “regular” or ordinary law – is the source of the very violence it is meant to dispel. Instead of a rule of law, I think it might make more sense to speak of a “law of rules,” that is a law that is manifestly violent in the way it codifies, orders and submits everything to its demand for procedure (and of which hyperlegality is just one of its many forms).

In this way, the banal and everyday quality of rule of law, far from being a source of comfort and protection, should instead show us the way that law is, as Walter Benjamin always tells us, violent (and rotten) to the core, how the normality of law is in a sense its most violent and dangerous feature exactly because of the way it disguises both its own violence and the violence of the law more generally. While I do not think that Hussain is as deeply critical of law as I am myself – his criticisms of law are based more on their internal dysfunction and actual applications, particularly in terms of colonialism and post-colonialism, while my critique is more wholesale – his work helps me to see one of the law’s more pernicious features: the way that the very bifurcation between law and emergency is a kind of hoax that seemingly domesticates law and brings us to trust the veritable fox guarding the henhouse.

In particular, this article will make the claim that the heart of legal violence actually lays in what usually is taken as its most inoffensive and neutral (i.e. nonviolent) feature, namely procedure. I will argue that the way that law expresses itself through procedure is a central manifestation of what Walter Benjamin calls mythic violence. Although the frequent displays of actual violence by the law, taken in its broader sense, are often quite spectacular, I will claim that the heart of the force of law is not the law’s actual physical violence per se but rather inheres in the way it pursues procedure. Procedure, I will argue, is the means by which the law announces and performs its separation from and superiority to its own (physically) violent acts – thus producing the law of rules – even as it constitutes a form of violence (taken in the Benjaminian sense) in its own right.

To make these arguments, I will look at a few of Hussain’s writings, especially his book The Jurisprudence of Emergency and his essay entitled “Between Norm and Exception: Guantánamo.” In those two works, along with his essay “Hyperlegality,” we see an indictment of the notion of law as a benign and protective force. I will also look at another set of related arguments about the rule of law and procedure and codification by Keally McBride in her recently published book Mr. Mothercountry. Both Hussain and McBride offer ways to recognize the way procedure operates and the way it can be understood as being a central and critical component of mythic violence.

II. Martial Law and Rule of Law

To begin this discussion, let me first describe Hussain’s arguments about the rule of law and emergency. His argument proceeds in two steps, first, in The Jurisprudence of Emergency, Hussain demolishes the distinction between rule of law and emergency, then, in later works such as “Beyond Norm and Exception: Guantánamo,” and “Hyperlegalism,” he describes the way that law proliferates in so-called zones of exception. Although these writings were written across a significant span of time, I read them as being complementary rather than developmental arguments. Taken as a whole, they offer a powerful critique of legal procedure and the very notion of a “state of emergency.”

Let me begin by describing Hussain’s work in The Jurisprudence of Emergency.

In that book, he describes the nature of martial law in the British Empire, suggesting that its much-vaunted difference from “regular law” is highly overstated. In this regard, Hussain writes:

As we approach the definition of martial law, it may be noted at the outset that the category of martial law occupies a profoundly ambiguous place in jurisprudential writing. It is considered to be both a properly legal question and a marker of the law’s absence. On the other hand, there is recognition of the inevitability of martial law in certain situations. Here, it represents the force of the state at its purest, the necessary condition if both law and state are to survive. On the other hand, we find an insistence on rules that determine the moment of emergency – and insistence that the law shall appear at its own vanishing point to determine the rules of its own failure. Martial law, like other responses to emergency, simply rested not on the authorization of ordinary law but on the legal maxim Salus populi suprema est lex (safety of the people is the supreme law). Notice how in such a formulation martial law is the manifestation of both the highest law and of no law at all. ⁶

In this imprecision about both martial law and other manifestations of legal emergency Hussain finds a distinction that is, in a sense, no distinction at all. As previously noted, English jurisprudence is exemplified by the belief that martial law in England (or Great Britain more generally) only refers to actions taken to defend the nation from invasion or internal conflict and never refers to a situation – which jurists like Dicey held to be common elsewhere in the world – where “military tribunals supersede the civil judicature” (i.e. where law as such disappears and is replaced by something else). ⁷

Throughout modern English legal history, from the civil war forward, an attempt was made to achieve a balance between the ability of the police and soldiers to do whatever they felt was necessary to quash various insurrections (generally riots by certain sectors of the working class) and still leave the patina of the law (civil and domestic law, that is), intact. Hussain tells us that the idea of “rule of law” was one key way that this dual function was made possible insofar as it offered a benign face whose presence announced that whatever violent response to uprisings from below may have occurred, such actions were now “over” and law had resumed its nonviolent and orderly manner.

In the colonies, it was a different matter entirely, at least formally speaking. There, Hussain tells us the “entire operation of ordinary law in a given territory” is formally suspended. ⁸ There is no equivalent attempt in British colonial law to work with or remain inside a formal legal apparatus; in a very real sense the colonies were under a permanent state of emergency. More accurately, the disguise of normal law that one found in Britain itself was not engaged with in the colonies in part because it was felt that the perceived need to be continuously violent in the face of the ongoing resistance of local populations trumped any desire to promote the appearance of an orderly legal apparatus.

Even so, as Hussain tells us, there is a basic commonality between British law and colonial law insofar as in both cases, the ultimate desire is to protect the status and authority of (British) law and authority as such. A balancing act of sorts was required that involved the legal system as a whole. The “normal” state of ordinary law in Britain suggested that law could be benign, that it did have legitimacy, not just in Britain but in the colonies as well. At the same time, the fierce suppression of uprisings in the colonies helped to show that those who applied the law in the metropole were not entirely averse to turning to violence and that there was a credible state response to insurrection in the colonies and the metropole alike.

In this way, there was a strong and necessary set of interactions between ordinary English law and the more nakedly violent sorts of legal practices in the colonies whereby it becomes impossible to thoroughly separate the two legal systems. This connection is both performative and historical. Thus Hussain writes: “While it is true that martial law was proclaimed only in the colonies, its source remained the common law of England.” ⁹ Here, martial law is a form of law too; the careful way that martial law was codified, the balance between excess and insufficiency, and its connection to existing laws governing periods of non-emergency, all speak to the close connection between the demonstrations of “lawfulness” (i.e. the non-emergency in the metropole) and those times and places in which law is apparently (but not actually) suspended.

Hussain explains the apparent differences of legal practice between England and the colonies (as well as the differences between various colonial practices) as reflections of the adaptations of a common metropolitan law to the particular colonial situation. In all cases, the key discerning mechanism used to judge whether actions taken under conditions of martial law were warranted came via the notion of necessity but the application of this concept varied according to the particular local context.

Thus, for example, in his analysis of the brutal repression of the 1865 Morant Bay uprising in Jamaica and the legal issues that followed, Hussain shows how the criteria of necessity was applied differently between England and Jamaica given the critical sociological and racial differences between the two places. George William Gordon, a mixed-race man who had spoken against white rule, was tried under special circumstances dictated by martial law and executed for his alleged role in inciting the riots at Morant Bay. The problem with his prosecution was that at the time of the uprising, Gordon was not physically present at Morant Bay but rather was in Kingston, a district that was never placed under martial law. In this way, Gordon was not directly involved in the insurgency and not physically under martial jurisdiction until he was forcibly removed and taken to Morant Bay for trial. Although in England a chief justice ruled that this move was illegal, others, such as a jurist named Finlanson argued that, given the permanent threat the white minority faced in Jamaica, a state of “necessity” extended to virtually any situation in that particular context (and thus every colonial subject was de facto perpetually under martial law).

In practice, these kinds of broadenings of the definition of necessity were often allowed, creating an effective division between English domestic law (where there were “mere riots” that were episodic and limited in nature, hence not invoking necessity per se) and the colonies (where the threat was seen as far graver and continuous). But such a broadening did not go so far as to suggest that there is one law for England and one law for the colonies or perhaps one law for English subjects wherever they lived and one law for everyone else (the Irish in particular resisted that double standard). Accordingly, in British law during the colonial period, Hussain shows that there is a double quality of the law wherein it is both everywhere a manifestation of English common law and at the same time manifested quite differently in different places according to local circumstances and the nature of the “emergency” in question.

For Hussain, ultimately there was never nor could there ever be a full break between metropolitan and colonial law nor an analogous break between ordinary and emergency law because in the end, the two work in tandem toward one common (and intertwined) effect. Hussain cites the work of Walter Benjamin whose theory of mythical violence offers that the purpose of state violence is not to establish justice and order so much as establish the law’s authority. In this way, legal violence is not so much instrumental for this or that purpose but rather serves the higher and only true purpose law has, to serve as the basis for its own legitimacy. To establish this legitimacy law has to return to its origins in bloody violence not just once but over and over again to perpetually maintain its own right to exist. Martial law is therefore not really an exception so much as it is a repetition of law’s founding violence that underlies all legal action no matter how benign or mundane they appear to be.

Martial law and emergency in general, for Hussain, do not therefore exist in a vacuum but are promulgated with an eye toward the common law tradition that it co-exists with (and are generated from). Citing General Dyer, whose direct orders led British troops to commit horrific and gratuitous acts of violence in Amritsar in 1919 (and generating many accusations of unlawful conduct), Hussain shows the logic of how martial law operates in this regard. Hussain speaks of Dyer’s stated desire to have a “moral effect throughout the Punjab” through his act of violent repression. ¹⁰ Here again, Hussain says this is “not so much about means and ends as it is about the manifestation of power,” a way to make the ghostly authority of the law suddenly all too real. ¹¹ Even as it is hotly disavowed and denounced (except by figures like Dyer himself who, being caught out using wanton violence, has nothing to lose in being honest), the violence that seems to threaten the total abandonment of law is actually its opposite; it is what makes law manifest and possible. Accordingly, Hussain defines emergency and martial law as “episodic and interruptive, contained and containable within the otherwise smooth functioning of regular law.” ¹²

III. Guantánamo and the Exception

If The Jurisprudence of Emergency establishes the undeniable link between martial and regular law, it remains focused on the question of legal violence as such. In this way, it gets to the commonality of law – its requirement in all cases to establish its own authority (so, in this way, the exception works no differently than the ordinary operations of law). Yet, this approach does not deal as much with the actual substance of law, that is, the materiality that connects various forms of law both in terms of its effects and its practice. It may be that the focus on actual violence and the spectacle that it produces draws our attention away from the more ordinary, but I would argue more fundamental, aspect of legal force and authority, namely the creation and implementation of procedures and rules that characterize the bulk of what law is and does. As Hussain points out in The Jurisprudence of Emergency, the German title of Benjamin’s “Critique of Violence” is “Kritik zur Gewalt” and Gewalt does not actually mean violence per se but something more like force or power. Thus, actual physical violence per se represents only the tip of the iceberg when it comes to law’s production of its own grounds for authority; its violent repetition of law’s origin may establish law’s presence but the day-to-day operations of law utilize a different kind of violence, the violence of procedure and the law of rules.

This fundamental quality of law is principally focused upon in a later set of Hussain’s writings. In “Beyond Norm and Exception: Guantánamo,” Hussain describes the legal landscape of our contemporary period, shifting focus from the British Empire to the American. Despite this shift in time and place, we see the same mechanisms at work in the promulgation of an American empire as we do with the British. We also see the same need for law to be at once violent (to serve as the basis for its own authority) even as it both couches and actually produces that violence through a turn to procedure.

In a sense, the use of procedure as a way to mask legal violence is even more fraught in the American empire than it was during the British. In the still current period of American imperialism, as is well known, we live in a time marked by what seems to be a permanent emergency, namely the war on terror (immediately preceded by another seemingly “endless” war, the cold war against communism and the Soviet Union). Yet, Hussain reminds us that no emergency comes without recourse to law, nor does it escape a set of limitations – however symbolic and marginal they may be – to its authority and scope. Indeed, as Hussain shows through an analysis of Guantánamo, far from being a lawless “black hole,” this supposedly extrajudicial site is awash in legal excess; it is marked by a surfeit of legal decisions that come from ordinary and regular legal practices that precede the war on terror itself but definitively shape the way law is practiced even when it appears to be largely absent.

As the firewall between emergency and normal law erodes both in the American metropole and its own colonies (Guantánamo being a key example), the violence of procedure becomes especially legible. For Hussain, if there was ever such a thing as a zone of exception,

[the] exception as it has historically and theoretically been understood, as a suspension of regular law, even a space of nonlaw, no longer exists. That is, traditionally an emergency or exception, at least as an ideal type, operated by suspending regular law and utilizing a range of maneuvers that were both temporary and specific in order to confront a given situation. Today most emergency laws are neither temporary nor categorically distinct from a larger set of state practices. ¹³

Just as with the legal proceedings that followed after Morant Bay and the Amritsar massacre, there was a great deal of debate and tension over the justifications and legalities of various actions taken, first by the Bush administration and then by the Obama administration over the legality of places like Guantánamo. The U.S. Supreme Court case Rasul v. Bush, for example, dealt with a challenge to the administration’s claim that in Guantánamo, the writ of habeas corpus did not apply. The amicus briefs filed in that case, Hussain tells us, cited British colonial law to show that there could be no general suspension of habeas even beyond the shores of the metropole.

As Hussain points out, British law had already established a general rule of thumb for when ordinary law could be “lawfully” suspended, namely if the civilian courts were unable to operate. ¹⁴ Since this was not the case during any period of the war on terror (nor the cold war for that matter), there was no recourse to a suspension of law but rather a piling on of legalisms, resulting in the condition that Hussain calls “hyperlegalism.” ¹⁵

In describing this situation, Hussain examines the many ways that White House counsel, US courts and other institutional sources of law sought to deal with the nature and limitations of Guantánamo’s legal circumstances. He cites John Yoo’s notorious torture memos, as well as connections to correctional law, the use of pre-9/11 immigration law (concerning mass roundups), as well as other ordinary legal sources as all serving as the basis of and justification for what could happen at Guantánamo. He also tells us that even the basis for the war on terror, the 9/11 attacks by Al Qaeda did not constitute an extra-legal emergency. Thus,

The 9/11 events did not create a state of exception, not a suspension of law but merely the activation of certain statutory powers for the calling up of military and coast guard reserves. ¹⁶

Hussain also cites then US Attorney General John Ashcroft’s October 2001 speech favorably describing his predecessor Robert Kennedy’s tactic of arresting mobsters for “spitting on the sidewalk,” as a basis for establishing law during the war on terror. ¹⁷ The amalgamation of small laws collectively produced a force, he argued, that was capable of defeating the bitterest enemy without violating the rule of law itself.

Perhaps most pertinent for my own arguments are the ways that the state uses classifications such as “enemy combatant” or “alien combatant,” not so much as a way to escape US law as to entangle the subject in question into a network of preexisting laws governing piracy, criminality and other forms of jurisprudential categorization. Of these categorizations, Hussain writes:

What are we to make of such classifications? They are, of course, not just descriptions of a condition, as their application unleashes immediate and terrible consequences. To that extent, they are performative speech acts, as when a judge pronounces an individual guilty. But neither are they judgments. Indeed, the term preferred by those who implement it is determination. These determinations lie somewhere between a categorization and a judgment. To call them lawless is, I think, not quite accurate, as that term overlooks the way in which such administrative determinations saturate contemporary legal life. For example, inmates in prisons who allegedly belong to gangs are classified as “security-threat groups.” Such a classification can produce the horrible result of solitary confinement for up to twenty-three hours a day in a windowless cell. ¹⁸

These systems of classification permit us to have a better understanding of the violence of procedure. It is true that the bureaucrats who create and apply these distinctions do not themselves engage in any acts of physical violence; that is left to their underlings, the security guards, soldiers and police officers who actually execute legal decisions. But the immediate physical violence that is committed by these underlings is a reflection of this prior violence or force (in the sense of Gewalt). The application of law as determination, of viewing which prior legal set of orders and procedures is to be applied to which situation determines how the law is actually made manifest.

Consistent with his arguments in The Jurisprudence of Emergency, Hussain points out that punishment and surveillance per se are not the point of the law as it is practiced at Guantánamo. He shows how the claim, for example, that the prisoners at Guantánamo should be held because they constitute a permanent source of information about Al Qaeda’s operations, even as these prisoner’s have been removed from any connection to Al Qaeda for over a decade now (even assuming they ever originally had such a connection), reveals a particular and punitive mindset on the part of the administrators.

The upshot of these arguments is that procedure is not a bulwark against legal chaos and violence but one of its chief sources. Rather than conclude that such procedures therefore serve as instruments for the larger purposes of the law, I would conclude, via Hussain’s arguments that perhaps the opposite is true: the law as such is a reflection of – is instrumentalized by – its own structures and procedures. Procedure simultaneously hides and constitutes the violence of the law; it is for this reason that I think it makes sense to speak of a “law of rules.”

IV. The True Believer: Mr. Mothercountry

In order to better understand how procedure could itself be not only violent but a central source of all legal violence, it is helpful to leave Hussain’s work for a moment and turn to another thinker and writer who focuses on the relationship between imperialism and the rule of law, Keally McBride. In doing so, we turn back to the prior century and the prior global hegemon, Great Britain but once again I would like to stress that the fundamentals of the formations of law and its applications – as Hussain shows us – remain effectively the same.

In Mr. Mothercountry, her recent book on the rule of law and its practice under the British Empire, McBride writes about the reign of procedure and, in particular, what she calls codification, as a critical component of maintaining and expanding the British Empire. McBride writes:

Codification turns the process of making legal decisions – as opposed to the substance and effect of them – the sign of whether the rule of law has been implemented. For instance an election may only have one candidate but if proper procedure allow the voting and nomination process, then the election would meet the standards of the rule of law. One race or an impoverished population in a country may suffer disproportionally in the administration of justice, yet if the proper procedures are followed, then this too falls within the purview of the rule of law. ¹⁹

Codification, which is similar to what Hussain calls classification, may be considered as a subset of (or perhaps more accurately a necessary predecessor to) procedure; it is the process by which empirical acts, people, things and the like are reinterpreted as legally bound subjects and objects. Once codified, these real-life situations and entities become available and legible as moments of law and hence subject to law itself, to its procedures and rules for how law ought to be applied and how the world ought to reflect that application.

One unexpected result of McBride’s inquiry is to show that codification, far from taming the phenomena of the world into a legally discernible order, actually allows for quite a bit of what would normally be considered “lawless” behavior. If a particular behavior fits within the codified standards, if it can be ascribed to one category or another, then it can be “read” as being part of – and subject to – law. Just as with the debates on whether the practice of law under Nazi Germany was in fact lawful, here too codification and procedure allow for a great deal of violent and hegemonic behavior to be perfectly “normal” and part of the everyday operations of the British Empire.

Even so, this application was not uniform and not all agents of empire sought to use procedure in ways that could, in other contexts, be considered criminal or wantonly violent. McBride’s book focuses on Sir James Stephen, nicknamed (and not in a kindly way) “Mr. Mothercountry.” Stephen was the legal counsel to the Colonial Office for several decades in the mid 1800s. McBride tells us that Stephen was a true believer in the moral possibilities of the rule of law. Not unlike Dicey, Stephen saw a kind of exceptionalism in the British rule of law. He writes for example that:

Throughout that long course of ages, those legal sanctuaries have been the bulwarks of order and the strongholds of liberty in England; and to them it is to be ascribed that the English Parliament have never fallen as the Cortes of Spain fell, and as the States-General of France silently disappeared. ²⁰

Stephen held that the British rule of law could bring peace and prosperity, not only to England itself but to its colonies (McBride speaks of his “theology of legal practice”). ²¹

What this means, in effect, is that, perhaps recognizing the way the two legal systems were mutually entangled, Stephen sought to bring to the colonies the same kind of principles and orders that he believed were to be found in England itself. Thus, for example, in commenting on a law proposed in the colony of Sierra Leone that he found unjustly penalized indigenous people, Stephen wrote:

It is easy to conceive a state of things in which justice and policy may alike require at least the temporary enactment of a law like the present, however widely it departs from European models of legislation and even from our own habitual views of Equity. In the absence of any such explanation, I am however of the opinion that the act is highly objectionable because apparently unjust. ²²

Note that Stephen here acknowledges the possibility of a different standard for the colonies under certain conditions (a reflection, once again, of the idea of “necessity”) but holds those cases to be truly exceptional (more in terms of being rare rather than being outside of the law).

Yet, for all of his allegiance to British common law, McBride paints Stephen as being a kind of legal particularist when it came to the various British colonies. She describes his desperate battle against the passage of the Foreign Jurisdiction Act of 1843, along with other similar laws that preceded it, whereby it was held that British subjects were held to a uniform legal standard even when they were outside of Britain or its colonies. As Britain became more of a global power, the need for such a law presented itself insofar as it was not possible for Britain to conquer every single territory. The French were making land grabs of their own and some other nations had settler colonies that didn’t welcome British law. Yet there was a need to police the British populations who were involved in trade in those territories that did not fall under British legal control. For McBride, the Foreign Jurisdiction Act sought to unify international law and it served, to some extent, as the basis for the international legal order that arose under the late British Empire and which still continues under the American empire as well. But Stephen himself was adamantly opposed to this law and his failure to stop it marked the end of his career; he went into early retirement soon after its passage.

For McBride, the upshot of Stephen’s career was that in this individual, we see a true believer in the rule of law as a virtuous and anti-violent system. Stephen, in McBride’s view, had the humility to recognize that he wasn’t an avatar of justice and that the law and ethics were not the same thing. Yet, he nonetheless served as a de facto legislator to half the world and he gave his best possible attempt to make rule of law serve as the antidote to the violence and disorder that he saw as marking most of the world and perhaps especially the colonies.

Even so, McBride shows that Stephen’s work largely ended in failure. From the outset, he saw the role of law as being more of a katechon, a preventer of disaster than the bringer of real justice. He sought to use law to curb the power and corruption of those who saw the colonies as sites for plunder and exploitation. This alone may explain why Stephen proved unable to make the rule of law a truly effective means of ordering the empire. Because Stephen was a true believer (McBride points out his involvement in the Clapham Sect, a group of powerful allied religious families who generally ran the administration of the British Empire for many years), he was reluctant to recognize the way that the very instruments that he was bringing to these territories were themselves replete with violence. Perhaps for this reason, he was usually outmatched and outfoxed by those who sought to use the empire in a way that was more in keeping with its original purpose of exploitation and enrichment.

In this way, McBride’s book serves as a kind of case study to illuminate Hussain’s larger points about the nature of law and procedure. McBride’s challenge to us is to say that if even someone as well-meaning and fervidly believing in the value of the rule of law as James Stephen ultimately serves to promote more violence, more hegemony and more subordination, despite all of his will and efforts to the contrary, then we can more clearly see the violent nature of law and procedure as such. You might think that a figure with so much power, so much leeway in the functioning of the empire, would be especially able to use the law as a manifestation of his own will. ²³ Stephen’s ultimate failure to do so suggests the way that the violence of the law is endemic and furthermore how what appears to be the “mere” instruments of law (codification, procedure and the like) are perhaps more determinant – and more violent – than an initial survey of the sources and origins of such forms of law might indicate.

V. The Violence of Procedure: James Fitzjames Stephen’s “Grim Presents”

If James Stephen, “Mr Mothercountry,” was unable to recognize the law for what it is, it fell to his son, James Fitzjames Stephen, and others of his generation to make the rule of law more like what it is today (actually what it has always been minus the attempt to make it an instrument to fight rather than to foment oppression). The younger Stephen (henceforth J.F. Stephen), himself a principle colonial administrator, had a very different understanding than his father of the British colonies and the role that rule of law played in them. As McBride states, he was more of a “social scientist” than the elder Stephen. As she puts it:

Though his father had tried to export common-law tradition to the colonies, Stephen’s son, J.F. Stephen, saw what a jurisdictional mire this created, and determined that clarity of legal procedure should be the focus of the rule of law, both at home and abroad. ²⁴

J. F. Stephen saw a tradeoff between violence on the one hand and codification and procedure, on the other. McBride writes that:

[J.F.] Stephen’s self-appointed task was to build a framework for law whose exercise would be more tempered than the notorious oriental despots who preceded the British in India (and other colonial territories) but that would nonetheless recognize the character deficiencies of colonial subjects and their masters. Codification was his method. Colonial subjects would be rendered automatically suspect by the legal codes that separated Indo and European populations into different procedures; in exchange, they would experience a less violent colonial rule. ²⁵

Here again, it seems as if codification and procedure are intended as the means to control and ameliorate the negative aspects of law (and in particular to stave off any possible violent reaction by the colonial subjects). An attention to legalities – even racist ones that distributed people into categories that allowed a disparate treatment in a formally egalitarian system – was seen as the mark of English restraint.

Yet the contrast between force and codification is not quite that straightforward (the avoidance of a projected “oriental despotism” being a conveniently low bar). McBride quotes J.F. Stephen as writing that: “the difference between a rough and a civilised society is not that force is used in one case and persuasion in the other but that force is (or ought to be) guided with greater care in the second case than in the first.” ²⁶ He also says that “law is nothing but regulated force subjected to particular conditions and directed towards particular objects.” ²⁷

Such sentiments show that J.F. Stephen understands that rules themselves are a form of force (i.e. another example of the “law of rules”). The success of the British Empire, he reasoned, came, not from frequent displays of violence (although he was initially sympathetic to Governor Eyre and his role in crushing the Morant Bay uprising) but rather from having that violence redirected into a form that seemed less threatening, that was more amenable to coexistence but which achieved the same essential function (as Hussain also argues as well). In this way, codification and procedure serve to establish the authority of law above all, to produce de facto racial hierarchies in the colonies and to do so in a way that appeared to be the opposite of what it actually was: violent. This can perhaps be shown most clearly in a passage that McBride cites from J.F. Stephen where he writes:

Laws must be based on principles, and that it is impossible to lay down any principles of legislation at all unless you are prepared to say, I am right, and you are wrong, and your view shall give way to mine, quietly, gradually, and peaceably; but one of us two must rule and the other must obey, and I mean to rule. ²⁸

Here, one could argue that J.F. Stephen appears to be ventriloquizing the British Empire. On the other hand, as McBride shows, he is in effect, along with his father, a key source of the very “rule of law” that he is promoting so he is perhaps, at the same time, ventriloquizing himself.

Stephen calls the rules of procedure “grim presents” which he feels will “extort respect and enforce obedience.” ²⁹ Codification and procedure more generally become, in this way, not the means that allow British power but the actual manifestation of British power. Here again the would-be instrument (codification and procedure) instrumentalizes its would-be wielder. Only this time, rather than deny the violent basis of procedure as his father did, J.F. Stephen accepts and even seems to relish the ways that law can achieve its violent ends under the guise of orderly legal processes.

McBride outlines the ways this violent proceduralism worked in practice. For example, Europeans in India were never to be tried in courts by Indians but only by other Europeans. Categories of subjectivity were set up so that although the law applied to all, it had widely different impacts depending on which category one belonged to. With clearly racialized lines being not only condoned but produced by law, McBride tells us that “[J.F.] Stephen’s code ultimately reflected and reinscribed racial hierarchies and tensions within its clear procedures.” ³⁰

This then is the same kind of orchestrated, legal and procedural violence that Hussain describes at 21st century Guantánamo. Codification and categorization allow the efficient and legal control of whole sets of populations who fall under the law’s purview. As with Hussain’s discussion of classification previously discussed, here too the key to this power is to determine which laws will be applied to which persons and under what circumstances. The very idea of the neutrality of the law rests on the fact that the desires that the law makes possible, desires for control, for racial hierarchy, for domination, are built into the procedural practices of law so that, once embedded in this way, the law can appear to be what a more naked political form of domination could not be, blind to those differences that have been presupposed. (McBride quotes an Indian nationalist during the time of the Stephens as saying “The Goddess of British Justice, though blind, is able to distinguish unmistakably, black from white.”) ³¹

In his own assessment of J.F. Stephen, Hussain echoes many of the ideas that McBride discusses. For Hussain, J.F. Stephen recognizes that the British had to have a rationale for their legal authority. Hussain tells us:

With characteristic candor, James Fitzjames Stephen captured the essence of the problem [of finding what was “particularly English” about the application of rule of law to India]. Why would those concerned with the moral legitimacy of colonial rule “take any interest in supporting a mere despotism, differing from those of the native rulers only in the fact that it was administered by Englishmen?” ³²

Hussain writes that in his attempt to turn to codification and procedure as a definitive answer to this question, Stephen noted that, the codes and procedures he was effectively replacing (that is, the pre-colonial statutes in various countries that were being overwritten by the English-imposed “rule of law”) were generally too vague and confused to stave off despotism. Hussain cites J.F. Stephen as writing, for example, that “The Mohammedan criminal law was open to every kind of objection. It was occasionally cruel. It was frequently technical and it often mitigated the extravagant harshness of its provisions by rules of evidence which practically excluded the possibility of carrying them into effect.” ³³ In other words, in J.F. Stephen’s view, the pre-colonial forms of procedure – often themselves a partial or wholesale invention of the British themselves – were both too weak and inchoate and, alternatively too forceful, too cruel. They didn’t succeed in producing, as English law would (at least in his eyes) a credible distance between the political whims of the state and the law itself. In this way, the pre-colonial forms of law were said to have failed to perform the function of appearing to hold back violence and so fell into the very “despotism” that Stephen saw the law as serving as the antidote for.

Yet once again this appearance does not preempt, for J.F. Stephen, the law’s own violence. For he also says (also in a moment of great candor) “the reason why village communities and other forms of joint property break up under our rule, is simply that the law permits no violence, and ultimately no coercive authority except its own.” ³⁴

Thinking about the transition between the two Stephens and their role in the development of rule of law in the British Empire, we see that the father’s dream of law as a tool of nonviolence gave way quite readily to the son’s engagement with law as a means of force (“Gewalt”) and control. Here once again, law is not the solution to the problem of violence but rather its source and succor; the turn to procedure is what allows this violence, the force of British imperialism to continue in disguise under another name.

VI. Violence and Law

As previously noted, in The Jurisprudence of Emergency, Hussain locates much of his argument about the violence of law in Benjamin’s “Critique of Violence.” If we return to that engagement, we can see further evidence that the greater violence of law lies not just in legally sanctified killing (although that plays a critical role) but also in the creation and codification of law, in legal procedure and the law of rules. If we turn to the “Critique” itself, we see that for Benjamin, killing is necessary for the law but that it is only, once again, the tip of the iceberg when it comes to the way that law establishes its authority in the world.

The connection between law and actual violence is clear, Benjamin tells us; the law operates from a position of extreme anxiety insofar as it has no actual ontological basis for its authority. Instead, it must assert itself by self-acclamation (an acclamation however that must be disguised as drawing on ancient rights and customs). It is for this reason that Benjamin tells us that the law engages in violence and, in particular, in capital punishment. Thus:

If violence, violence crowned by fate, is the origin of law, then it may be readily supposed that where the highest violence, that over life and death, occurs in the legal system, the origins of law jut manifestly and fearsomely into existence. [The purpose of capital punishment] is not to punish the infringement of law but to establish new law. ³⁵

Benjamin goes to write: “In the exercise of violence over life and death, more than in any other legal act, the law reaffirms itself. But in this very violence something rotten in the law is revealed.” ³⁶ Here, we see the basis for law’s anxiety and its corresponding violence, what Hussain describes in The Jurisprudence of Emergency as well. As previously noted, the law must kill and blood must be its sign because it needs to manifest evidence of its right to exist (or even of its existence at all). The law’s anxiety never ceases and its need for self-assertion never ends, hence the fact that the law is endlessly forceful and violent.

For all of this, at the same time, in the “Critique,” Benjamin recognizes that the law comes to this violence with some ambivalence. The agents of violence, the police, the army, or other enforcers of legal decision are not the entirety of the law. Instead, they represent the limits of the law’s power to enforce its views. Even if the state believes in the “rule of law” (however thin or strategic that belief may be or even, in the case of James Stephen if it is administered by true believers), when it comes to applying that rule, the law encounters its own arbitrariness. Thus, Benjamin writes:

the “law” of the police really marks the point at which the state, whether from impotence or because of the immanent connections within any legal system, can no longer guarantee through the legal system the empirical ends that it desires at any price to attain. Therefore, the police intervene “for security reasons” in countless cases where no clear legal situation exists, when they are not merely, without the slightest relation to legal ends, accompanying the citizen as a brutal encumbrance through a life regulated by ordinances, or simply supervising him … [the power of the police] is formless, like its nowhere-tangible, all-pervasive, ghostly presence in the life of civilized states. ³⁷

Here, we see that the “rule of law” cannot entirely rely on the police to enforce it (quite the contrary); this is a central – perhaps the central – paradox (part of what is “rotten”) at the heart of the law. Accordingly, procedure, which roughly corresponds to what Benjamin calls “law preserving violence” – as opposed to lawmaking violence which is actual physical violence as a repetition of the law’s original violent founding – is a critical and ongoing part of the law.

But even if so, note that such a form of law is no less violent than lawmaking violence itself. It is “law preserving” because it advances the illusion that the law is above its own violence (and also that it is the antidote to any potential violence from would-be challengers to the state’s monopoly on violence). But it partakes in the very same violence that it is meant to assuage or prevent (or mask). Of these two forms of violence, Benjamin writes “All violence as a means is either lawmaking or law-preserving … It follows, however, that all violence as a means, even in the most favorable case, is implicated in the problematic nature of law itself.” ³⁸ Ultimately then even this “kinder, gentler” aspect of law remains thoroughly saturated with violence, indeed is a form of violence in the Benjaminian sense; as we have seen, it is something that instrumentalizes even its own would-be instrumentalizers.

Thus, for example, in speaking of what appears to be the eminently non-violent field of contract law, Benjamin writes:

A totally nonviolent resolution of conflict can never lead to a legal contract. For the latter, however peacefully it may have been entered into by the parties, leads finally to possible violence. It confers on each party the right to resort to violence in some form against the other, should he break the agreement. Not only that; like the outcome the origin of every contract also points toward violence. It need not be directly present in it as lawmaking violence, but is represented in it insofar as the power that guarantees a legal contract is, in turn, of violent origin even if violence is not introduced into the contract itself. When the consciousness of the latent presence of violence in a legal institution disappears, the institution falls into decay. ³⁹

We see here that even an aspect of civil procedure as seemingly benign as contracts is itself saturated with violence (an interesting point when you consider that the entirety of liberal political thought and social contract theory sees the contract as being the end of violence rather than its perpetuation). The fact that the ultimate basis of the law is violence can never be written out, never completely covered over by a “rule of law.”

As we see in McBride’s work too, both generations of Stephens engaged (the father much more reluctantly than the son) with violence. Turning specifically to J.F. Stephen, from a Benjaminian position, this meant that Stephen the son succeeded – paradoxically considering the degree to which he openly acknowledged the violence of his position – in disguising the violent nature of law by rendering that violence ordinary and impersonal. In this way, the state could continue to dominate and plunder even as it congratulated itself for its restraint. The suitably disguised despotism of the English rulers had both a lawmaking and a law preserving feature that allowed it to continue to dominate in the colonies for well over a century in many cases.

It is this thin disguise of procedure that Hussain’s work helps us to wipe away, with some important help in this case from McBride. Hussain’s work allows us to see procedure and codification for what they are, assertions of the law, not for the sake of the population it rules over, but for its own sake. Such assertions are, exactly like the violence of capital punishment, a manifestation of the law’s anxiety for its right to exist. In the case of colonialism perhaps in particular, as well as the neocolonialism of the current American empire, we see that anxiety manifested quite acutely insofar as the self-proclaimed “right” to rule over these other populations is on especially sketchy legal grounds and subject to endless challenge. If the law must resort to things other than killing to rule – if that killing itself is both the manifestation of and also the threat to law’s legitimacy – then the other forms that law takes serve no less as ways that the law can “jut manifestly and fearsomely into existence.”

Hussain is telling us that we do not need to resort to a theory of the “exception” to see law’s violence and cruelty. It is manifest in the most banal and mundane forms of procedure and codification. Indeed, when we resort to a more spectacular theory like the theory of the exception (one that Schmitt and then Agamben have done so much to popularize), we risk losing sight of the way that the law in its normal operations is just as pernicious, just as “exceptional.” In doing so, we actually give aid to the argument that ordinary law is fine, that it’s just zones of exception like Guantánamo that are a problem. Here, once again, the very contrast between norm and exception is part of what averts our eye from the violence of the norm. Hussain’s work gives the lie to this set of beliefs and, in turning to the “black holes” of the law, he actually manages to turn the spotlight onto the most basic and ordinary practices of law as the true and critical source of its violence.

Does this mean that the law is never anything but pernicious, or that law can’t ever be used for good and anti-violent purposes? This may be a place where Hussain and I begin to think differently about the law. I think that for Hussain, the law is not doomed to always be violent and can, at times be engaged with as a force to counter other forms of violence. In my own view, I think that the law is inevitably and always violent and that the “positive” manifestations of law (which admittedly are many) come, not from the law itself but from attempts to counter legal violence with acts of non- or anti-violence, including many forms that seem to come from within the practice of law itself. As I see it, this distinction is important because to argue that procedure as such can be helpful or protective is only to bolster the way the law disguises its own violence (that is to repeat the mistake of James Stephen and believe in the possibility of a non-violent law). ⁴⁰

To see, on the other hand, that when law appears to act against its own violence, the basis for such an action comes from beyond the confines of law itself, allows that we are not fated to be subjects of legal violence and that violence per se can be countered and subverted. Hussain’s work is critical for helping us to keep these kinds of distinctions in mind and furthermore it helps us to always be alert to the ways that the benign face of legal procedure is not merely a disguise for legal violence but that it in fact constitutes the very basis for that violence.