The Inheritance of the Imaginary: Martial Law’s Rhetoric in Twentieth Century Northern Ireland

3. In Coke’s Image

The starting point for any consideration of martial law ought to be with the Petition of Right, adopted by parliament in 1628. Irrespective of what the position on martial law was prior – whether it was an example of permitted illegality, or it was in fact a prerogative of the crown – this point marked a rupture. After the Petition of Right, one is forced to consider martial law as existing, to the extent it did exist, in Sir Edward Coke’s vision. ³⁵ To this end, Parliament petitioned the King that:

the aforesaid Comissions for proceeding by Martiall Lawe may be revoked and annulled. And that hereafter no Comissions of like nature may issue forth to any person or persons whatsoever to be executed as aforesaid, lest by colour of them any of your Majesties Subjects be destroyed or put to death contrary to the Lawes and Franchise of the Land. ³⁶

It ought to be noted that this was not an outright prohibition of martial law; for it provides two exceptions. The first has been given considerably more attention, namely the legitimacy of martial law in times of war. ³⁷ The petition provides a narrow, albeit often returned to qualification: martial law may arise when the common law ceases to operate. More specifically, recourse to martial law may exist where – due to their disruption – the common law courts are unable to interfere. ³⁸ This is a most particular qualification: it is one of fact and not law. It is premised on the notion that if the common law courts were able to intervene then they would do so. The second qualification, one ought to note, is that martial law remained legitimate outside of the Kingdom: outside of the scope of the common law. ³⁹ Where the common law was territorially bound, the power of the crown was not. The crown, in its foreign conflicts, was entitled to govern as it saw fit, without the limitations placed on it by the common law.

The relationship between the material existence of martial law and Coke’s own image of it has been central to the reconstruction of martial law: external from the common law, although only existing in its relationship to it. Blackstone, in an oft-cited passage, that captures the sentiments expressed in the Petition of Rights, sets out that:

For martial law, which is built upon no settled principles, but is entirely arbitrary in its decisions, is [. . .] in truth and reality no law, but something indulged, rather than allowed as a law: the necessity of order and discipline in an army is the only thing which can give it countenance, and therefore it ought not to be permitted in time of peace, when the king’s courts are open for all persons to receive justice according to the laws of the land. ⁴⁰

Blackstone manages to ascertain the contradiction inherent to martial law: it is not law and yet deeply rooted in the language of law. In this way, it is the very epitome of law’s imaginary capacity. Each invocation of martial law was unique because it was, and must be, born out of necessity. In this, there can be no overarching principles (other than that of necessity), nor any conception of law for that matter. Martial law could only arise with the closure of the common law courts, because it could only be justified by necessity when no competent court could fulfil this need. The willingness to indulge, instead of allow, captures much of Blackstone’s thought: martial law could not be condoned by the common law, even if the common law historically depended on the very existence of martial law.

Blackstone, so much as he recognises the possibility for martial law to exist within the common law, conceives of it as a product of necessity. However, he concedes, in Coke’s own vision, that martial law can only come into being when the courts are unable to intervene; thereby in the same breath casting it to the periphery of the common law: both within it and outside of it. It is within this where one can begin to see the construction of the imaginary at work: it is no law, and yet it is the law when there is no other.

3.1. Re-Imagining Martial Law

Dicey adopts a considerably more forceful position against the existence of martial law. In doing so, Dicey quite likely also presents the most coherent argument against the existence of martial law. He writes that:

‘Martial law,’ in the proper sense of that term, in which it means the suspension of ordinary law and the temporary government of a country or parts of it by military tribunals, is unknown to the law of England. ⁴¹

As it will become quickly apparent, much of Dicey’s consideration of martial law is dependent on how one defines it. In as much, Dicey’s forceful criticism of martial law is not so much a criticism of military power, as it is a criticism of military justice. ⁴² However, what may appear as a very technical distinction does have quite profound implications for what one may consider the limit of the common law. He asserts Wolfe Tone’s Case to this end; where the King’s Bench in Éire intervened to prevent Tone’s execution by court martial. ⁴³ This intervention was premised on the ground that while the common law courts sat, they alone were competent to try such crimes. ⁴⁴

One ought to note that Dicey does also go to considerable lengths in defining the right of the civil authorities, and in particular the magistracy, to utilise force in quashing a breach of the peace. In doing so, he concedes the extensive powers to repress violent disturbance, considering it to be fundamental feature of orderly government. ⁴⁵ This is, according to Dicey, grounded in the fact that, ‘every subject, whether a civilian or a soldier [. . .] not only has the right, but is, as a matter of legal duty, bound to assist in putting down breaches of the peace’. ⁴⁶ In response to the position taken by Dicey, Townshend asserts that Dicey reduces martial law to the common law principle of necessity. ⁴⁷ This firstly mischaracterises Dicey’s entire thesis – namely that the conception of martial law does not exist in the common law – and neglects Dicey’s preoccupation with martial law being the execution of martial justice.

Townshend goes on to write that, ‘this elegant theory was sadly of little help – indeed it could be positively demoralizing – to the unfortunate peace officer faced with a riot or a potential insurrection’. ⁴⁸ However, Dicey was not seeking to theorise martial law, or even the law of necessity, he was presenting it as he interpreted it to be. Keane, by contrast, does conclude by asserting that martial law is:

the lawyer’s equivalent of the physicist’s anti-matter, a kind of juristic black hole, to shift the metaphor, into which are sucked all the cherished principles which normally guarantee life and liberty. It is only when all else has failed, including the law itself, that it becomes society’s last line of defence: salus populi suprema est lex. ⁴⁹

While Keane asserts that much of martial law is a product of the maxim salus populi suprema est lex, he also highlights the profound symbolic – and as I argue imaginary – capacity of martial law. Townshend fails, in any case, to make a convincing argument against this: he turns either to statue law or to instances where the legality of martial law was questioned by the very people charged with upholding it. ⁵⁰

One is therefore forced to consider with some degree of sincerity whether martial law could be conceived solely as a product of necessity. To this end, Law Officers posited that: ‘The great merit of the Common Law is that it will justify even an unprecedented course of action if it is fairly covered by the maxim salus rei publicae suprema lex’. ⁵¹ Conceding, however, that, should it be required, it would be preferable to adopt Acts of Indemnity, after the fact, than to attempt to bestow such powers on the executive in advance. In conclusion, they write that, ‘it is not possible to say in the abstract whether the powers suggested will be found to exist at Common Law but they certainly exist at Common Law if national necessity requires them to be exercised’. ⁵² In doing so they present a common law which is capable of responding to the needs of the civil authority, a law that can be rewritten and even, if truly necessary, imagined and re-imagined at will.

Writing, on the exercise of such powers in Tudor England, Keir writes that, ‘Salus populi suprema lex came to mean, as it generally does, no law at all’. ⁵³ It is clear that even under the common law, there are extensive powers afforded to the civil authority in times of crisis. Although his most damning condemnation comes when he writes that, ‘there was much bad law and worse history in the appeals which each side made to the constitutional practise of the past’. ⁵⁴ Any conception of martial law as law must be seen as the worst of all. Legal imaginaries depend on both bad law and worse history, to lend credibility to the imaginary, to provide the slippage necessary to extend symbolic power over it, to confer the imaginary with legitimacy.

3.2. The Colonial Terror: Coercion and Martial Law in the Service of Empire

The traditional view of Coke and Blackstone, the one maintained, if not expanded upon by, Dicey depends both on a highly formalistic reading of the history of martial law and on a history of the application of martial law in Great Britain. In many respects, it reflects an aspiration. The material reality was, in many contexts, fundamentally in opposition to the position that was espoused by Coke, Blackstone and Dicey. This is despite the application of a supposedly common law and the recourse that was pursued before British courts. If one were to consider the existence of martial law across the British Empire, it becomes more vivid: it becomes almost life-like. However, it still retained a strong element of the imaginary capacity with which it was imbued and, at least in its purest form, it retained a quality – a logic – that was antithetical to law. Equally, and of particular relevance for the matter under consideration, one must contend with that fact that it was through recourse to martial law as a technique of colonial oppression that such a technique became more acceptable in general: considerable effort was dedicated by several scholars and politicians to legitimising martial law as a means of governing.

In considering the historic deployment of martial law in the aid of the Imperial project, one must draw together from different (parallel) epistemic traditions. This must not only situate the development of martial law within the different geographic contexts; this must also consider the temporal contexts in which recourse to martial law was made. All of this contributed to the creation of a distinct colonial knowledge: colonial administrations and police forces trained in the same manner and under the supervision of the same political apparatus. ⁵⁵ Administrators, the police and the armed forces were deployed and redeployed; alongside the more formal mechanisms that maintained a colonial knowledge, these people carried a subset of this knowledge and continued to contribute to its development. ⁵⁶ They constituted an imperial apparatus that would be called on to deploy the same techniques across these contexts. However, this knowledge was incomplete: intelligence repeatedly gave way to rumour fuelled by anxiety. ⁵⁷ Martial law, or in many instances simply the spectre of it that was offered through the threat of its imposition, loomed over colonial governance. ⁵⁸ The possibilities that martial law could give rise to were returned to regularly: as a mechanism through which order could allegedly be both created and maintained. Ryan concludes that, ‘the declaration of martial law in this period was a means both of asserting the rule of law and simultaneously of placing it under suspension’. ⁵⁹ This, to an extent, captures the earlier sentiment expressed by Blackstone: being embellished in the language of law, although not law. However, it also goes beyond this, Ryan, in writing specifically about martial law at the colonial frontier and as a technique deployed against indigenous people in the dispossession of their lands, demonstrated the utilisation of martial law as a tool through which legality – or at least the precursor to it – could be constructed at the frontier of Empire. ⁶⁰

Over the course of the nineteenth century, martial law was invoked, among other instances, against indigenous people in Aotearoa me Te Waipounamu, in Lakdiva and in iMpuma-Koloni. ⁶¹ This deployment of martial law against indigenous peoples is particularly pertinent to the nature of martial law, and the acceptability of its use at the periphery of the common law. In some respects, the operation of martial law against indigenous peoples constructs itself as existing outside of the common law, as a tool through which imperial power could be asserted and expanded. ⁶² On the one hand, this leveraged the historic logic of martial law as being legitimate outside the scope of the common law. On the other hand, it reflected a racialisation of martial law’s application. ⁶³ The application of martial law was largely unacceptable in Great Britain and even its application to settler colonial population was not without contention; in this way the subjection of indigenous populations to martial law reflected an othering by the colonial authorities, while also demanding the subjugation of these indigenous populations to the colonial terror. ⁶⁴

In 1865, the Colonial Governor of Xaymaca, Edward Eyre, declared martial law; this has become one of the most politically enduring instances of its invocation in modern history. ⁶⁵ Martial law was declared in response to riotous protest; a product of the dire subsistence experienced by many people in Xaymaca and the considerable land inequality. ⁶⁶ The deployment of the military was marked by death and destruction, this was compounded by the use of summary execution in a form of quasi-military justice. ⁶⁷ The ferocity with which the rioting was quelled became a point of considerable public concern, one that would animate the British political and legal establishment for many years thereafter. ⁶⁸ However, a great deal of the consideration afforded to the declaration of martial law was concerned not by the people of Xaymaca, it was focused on the risk of such techniques being turned on Great Britain. ⁶⁹ The violence that was meted out in response to the riots was not unique to Xaymaca and the elevation of this case, in particular, was more emblematic of the concern for unchecked military intervention then any sincere concern for the rights of individuals.

One of the principle issues that arose pertained to the potential for Edward Eyre, among others, to be held accountable. Initially, this was attempted through private prosecutions in both Xaymaca and in Great Britain. ⁷⁰ However, it culminated in attempts to pursue civil remedies, most famously in the case of Phillips v. Eyre. ⁷¹ This was ultimately futile. Although, the attempts to claim that this was a product of martial law’s character have often neglected the broader legal machinations that were at play. ⁷² One of the final acts of the House of Assembly, prior to its cessation, was to grant indemnity to those involved in quelling the riots. ⁷³ Despite claims to the contrary, once again it was the classical doctrine – where Acts of Indemnity were required to reconcile the dissonance between the rhetoric of martial law and the reality of the common law – that persisted. ⁷⁴

Moreover, the Lord Chief Justice, Sir Alexander Cockburn, in instructing the jury in R v. Nelson and Brand – the culmination of an attempt to privately prosecute two of the officers before the British courts – asserted that:

these instances of the application of martial law were therefore either under statutory powers, with which no man, judicially speaking, has a right to quarrel, or when exercised by virtue of the prerogative of the Crown were followed by Acts of Indemnity; which, to say the least of it, sufficiently implies a doubt of the legality of the exercise of power. ⁷⁵

In doing so, he refuted any and all assertion as to the existence of martial law within the common law. It clearly illustrates the way in which martial law is constructed, within the imaginary, based on statutory provisions that acted to either confer powers in advance or to indemnify unlawful actions.

One must note that, despite the recurrent recourse to the rhetoric of martial law during this time, the nineteenth century was marked by an increasing dependence on statutory techniques of control. ⁷⁶ Across the British Empire legislative initiatives were taken to suppress vagrancy and to restrict political rights; the consequence of which was to afford colonial governments with a wide array of powers with which to govern. ⁷⁷ While some of these initiatives were initially presented as being extraordinary measures adopted in response to a specific threat, many were never understood as such. ⁷⁸ In this regard, these laws were fulfilling the function of maintaining order, although in a manner that rarely asserted this overtly.

Additionally, the increasing recourse that was made to ‘Coercion’ Acts is of particular relevance. The adoption of Coercion Acts is most famously associated with Éire, although similar regulatory frameworks were adopted in respect of Massachuset and Bhārat. ⁷⁹ These were statutes adopted to restore order and to quash dissent. To properly understand the significance of this development, one must clearly define the distinctive quality of martial law; thereby creating a demarcation from the broad common law powers that existed. While Dicey takes an overly formalistic position, one must concede that it is the subjection of civilians to military justice that most clearly exists in opposition to the powers to suppress riot or rebellion afforded by the common law. ⁸⁰ In drawing this distinction, one can begin to articulate the mechanisms through which Coercion Acts are not only distinct from martial law, but embodied a logic that was antithetical to that of martial law. At various points, Coercion Acts suspended habeas corpus and trial by jury; although, in doing so they maintained a dependence on common law courts and the broader structures of law. ⁸¹ These were amendments to the legal framework, not a suspension of it.

Moreover, the exercise of martial law approached a form more akin to statute: increasingly military authorities enumerated evermore complex regulations in their articulation of martial law. ⁸² There is a degree of unease with which the publication of martial law regulations ought to be viewed. The premise that a law born out of absolute necessity, without settled principle and responding to the needs of the immediate situation is justifiable is somewhat undermined when one can enumerate a regulatory framework through which to realise it. ⁸³ This is made all the more convoluted when one considers that while in some instances these regulations lacked normative effect, in other instances regulatory frameworks were presented as being a product of martial law, despite deriving their legitimacy from statutory law. ⁸⁴

In many instances, there is little evidence to suggest that the rhetoric of martial law was anything more than illegality. This illegality may have been more broadly permitted within the context of the British Empire. However, there were limitations to what was accepted. The declaration of martial law in Xaymaca and the repression that ensued demonstrate the unease with which several prominent people saw an unfettered colonial administration and the risk that this posed to the rights of British subjects across the Empire and in the United Kingdom. Moreover, the reliance on Acts of Indemnity demonstrates the insincerity, or at the very least the scepticism, with which the colonial administration viewed the legality of their own actions. The threat of martial law may have been necessary to maintain an Empire; however, that threat was little more than lawlessness dressed up as law. Despite this, it is important to recognise that the process of imagining martial law as a technique of colonial oppression had a considerable impact on the position it held within the British legal imagination.

3.3. A Wandering Imagination: Reconsidering in re Marais

This fragmented colonial history of martial law – where martial law is perceived as more legitimate within the colonial context – has given rise to a body of case law that must be addressed. To this end, many have read the Privy Council’s ruling in re Marais as a considerable departure from the position adopted by Coke and Blackstone ⁸⁵ : in that it posed a considerable challenge to the principle that martial law could only exist when the common law courts could no longer sit. ⁸⁶ There should be little doubt that the ruling in re Marais is problematic, if not simply erroneous, though the statement of law is not necessarily in conflict with Blackstone. The issues in principle arise from the careless, if not erroneous, interpretation of that law, and in particular Elphinstone v. Bedreechund. ⁸⁷

Firstly, there is the issue of determining the ratio decidendi in Elphinstone v. Bedreechund, alongside the submissions of the parties, the Attorney-General put forward two claims: (i) that to allow for the continuance of courts (namely ancient tribunals of justice), to the extent determined by the military and colonial authorities, does not detract from the existence of martial law; and, (ii) that the person in question, as an enemy of the crown, was not entitled to the protections of the common law. ⁸⁸ The Privy Council in re Marais, only considered the former of the two, neglecting the implications of the latter. ⁸⁹ Though in Elphinstone v. Bedreechund, Privy Council held that:

We think the proper character of the transaction was that of hostile seizure made, if not flagrante, yet nondum cessante bello, regard being had both to the time, the place, and the person, and consequently that the Municipal Court had no jurisdiction to adjudge upon the subject; but that, if anything was done amiss, recourse could only be had to the Government for redress. ⁹⁰

The weight afforded to the law applicable to the specific individual in question lends considerable weight to the fact that the matter was non-justiciable, not because of the existence of martial law but as a consequence of them having taken up arms against the crown. ⁹¹ This is furthered by the claim that the only recourse that existed was to petition the government, because if it was a result of the existence of martial law, in abstract, the claim would have become justiciable on the cessation of martial law. ⁹² While the Privy Council gave little explanation as to the weighting of its decision in Elphinstone v. Bedreechund, it appears clear that the status of the individual as an enemy of the crown contributed to this, and that it was an oversight in re Marais to not consider this.

Secondly, the facts in re Marais are at considerable variance from Elphinstone v. Bedreechund, they differ to such an extent that one must question whether they ought not be considered distinguishable. ⁹³ Though one point, above all others, appears critical (on the reasoning of the Attorney General as discussed above): in Elphinstone v. Bedreechund, the courts in question were not common law courts and they only operated to the extent permitted by the military occupation; ⁹⁴ in re Marais, the courts are common law courts duly constituted in a territory that has been subject to the common law for the best part of a century. Even if in Elphinstone v. Bedreechund, the Privy Council could reasonably conclude that martial law existed, there was an absence of competent common law courts to adjudicate on the dispute and no mechanism to challenge it – that is, a state of war. This was not the case in re Marais. ⁹⁵ In applying Elphinstone v. Bedreechund, the Privy Council erred.

Finally, there is the application of the law, as determined by the Privy Council in re Marais, to the facts as they arose. The Privy Council held that:

Where actual war is raging, acts done by the military authorities are not justiciable by the ordinary tribunals.

The fact that for some purposes some tribunals have been permitted to pursue their ordinary course in a district in which martial law has been proclaimed is not conclusive that war is not raging. ⁹⁶

In applying the statement of law, one needs to consider why such a claim is not justiciable: it ought not be because it is legally not justiciable, but because there is no competent court to adjudicate on the matter. As such, the statement of law is not in conflict with the established law; though its interpretation, by the Privy Council, to create a legal bar to justice, is. Moreover, permitted could be interpreted in two different ways: firstly, it could be read as meaning that the conditions were such to allow the continuation of the courts; it could also be read as indicating that the military authorities had taken steps to enable the continued sitting of the courts. These different potential readings give rise to notedly different implications. Where the former would be almost certainly a marked departure from the law as it had stood, the latter might be more understandable. The issue arises in that, if one is to read the statement of law in light of Elphinstone v. Bedreechund – which one would assume logical given that the Privy Council asserts in re Marais to follow the precedent established by it – it becomes apparent that this interpretation would be fundamentally incompatible with the conclusions reached based on facts in re Marais. At the time of the facts in re Marais, there was a competent common law court capable of adjudicating on the matter: the functioning of these courts is attested to by the allocation of responsibilities for the administration of martial law. In ruling as they did, the Privy Council disregarded the established law and failed to apply the law, as they saw it, to the facts presented. ⁹⁷

The Privy Council’s ruling in re Marais emphasises the extent to which any attempt to theorise martial law comes up against, ‘the characteristic English device of studied indefinition [. . .] integral to the common law tradition. A mountain of individual case law suffocated general principles’. ⁹⁸ In re Marais departed considerably from the law, in a claim to be upholding it. It is in this studied indefinition that the necessary slippage can occur; that the legal imaginary can be constructed. Although this is also compounding: In re Marais, despite not technically binding on courts in Great Britain or Éire, became central in the way martial law was imagined. As such, despite considerable efforts by the greatest of British constitutionalists to ascertain the true nature of martial law, one can only conclude that ‘the subject is ruled by an imaginary, lived as even more real than the real, yet not known as such, precisely because it is not known as such’. ⁹⁹

3.4. Returning to Reality: The End of Martial Law

The manner in which the imaginary was constructed became most apparent at the point of its deconstruction: a moment where one would have thought it more important than at any previous moment. The First World War trigged a marked departure from the established modus operandi: where statute had previously been considered inappropriate within Great Britain, it was suddenly the only appropriate mechanism to address the exigencies of the conflict. At once, one was made to confront the inability of martial law to offer a sufficient basis through which to govern in conflict.

In 1914, days after the United Kingdom entered the First World War, Parliament adopted the Defence of the Realm Act (DORA). Parliament empowered the King-in-Council to take myriad measures; this included, under certain conditions, to try civilians by court marital. This was later amended such that it was only possible after a proclamation in response to a special military emergency. ¹⁰⁰ DORA, thereby, created a form of statutory martial law. ¹⁰¹ However, this was antithetical to the logic of martial law: namely that where martial law was without logic, without principle, DORA provided a statutory and regulatory framework. ¹⁰²

Two years later, DORA was utilised in the suppression of Éirí Amach na Cásca. It was thereby turned on Éire and went onto provide the inspiration for a plethora of laws that would be utilised in an attempt to suppress Republicanism. In fact, the DORA, provided a highly responsive framework through which to quell disorder. In 1920, the Restoration of Order in Ireland Act (ROIA) was adopted to respond to the inability to secure jury convictions, thereby prolonging the application of DORA in Éire. ¹⁰³ ROIA established its own justification in s. 1(1): the inadequacy of the ordinary law. It, therefore, much like martial law, placed itself in opposition to the broader legal system. Nowhere in DORA is it so explicit.

The image of martial law, at least in the case of Éire, however, remained strong. Within days of Éirí Amach na Cásca, martial law had been declared. ¹⁰⁴ Townshend writes that, ‘martial law was not imposed because it was necessary; it had suddenly ceased to be politically odious and had become symbolically desirable’. ¹⁰⁵ In many respects, it was in its death, that martial law was most alive. For he quickly qualifies this, in his description of DORA, by writing that, ‘now they had to hand a modern instrument perfectly adapted to the war emergency, but actually preferred to pretend that they were using one which had previously been regarded as barbaric’. ¹⁰⁶ For, while the exact consequences of the declaration of martial law were dubious, many politicians recognised that in practise it was little more than grandstanding. ¹⁰⁷

DORA, following a proclamation suspending the effects of s. 1(1) of DORA (Amendment) 1915, enabled for the leaders of Éirí Amach na Cásca to be court-martialled. However, DORA also afforded certain procedural guarantees, which in several instances the military authorities disregarded. ¹⁰⁸ The most egregious being that they were held behind closed doors. As such, while the then Commander-in-Chief in Éire, General Maxwell, was empowered to resort to Courts Martial; in practice, they were impugned by various procedural deficiencies. ¹⁰⁹ The effect of these deficiencies, while in some cases negligible, most likely led people to the grave. ¹¹⁰ This contributed to the pressure which the Westminster Government put on General Maxwell to impose lesser sentences. ¹¹¹ In ex parte Doyle, two people who had been court-martialled challenged the judgement before the King’s Bench. ¹¹² However, in a highly contentious judgement the King’s Bench upheld the sentences, declining to pronounce on a range of issues pertaining to inter alia the proclamation to suspend jury trials. ¹¹³

This ought to be distinguished from the later imposition, during Cogadh na Saoirse, of military courts within the martial law area. Although much of Éire continued to be governed by ROIA, a quarter of the island was subjected to a state of lawlessness: with courts refusing to intervene against the will of the military authority. In both R v. Murphy and R v. Allen, the King’s Bench Division, in its application of in re Marais, denied petitions for habeas corpus against sentences of death. ¹¹⁴ The cases in question differ quite considerably: Murphy was tried, as a consequence of ROIA, by Court Martial; Allen was tried by a military court. Where the former was a court and a duly constituted one, the latter was little more than a committee of officers, lacking any power in either statute or common law. Kohn, widely considered the preeminent authority on the law of Saorstát Éireann, decried the ruling in R v. Allen as a ‘truly revolting decision’. ¹¹⁵ Kohn’s conclusion followed naturally from his belief that in re Marais represented an erroneous departure from the common law. ¹¹⁶

However, in Egan v. Macready, the Chancery Division was required to adjudicate on a writ of habeas corpus. The Master of the Rolls in Éire ruled that the adoption of ROIA, under conditions which were not dissimilar from the current conditions, precluded any recourse to martial law. ¹¹⁷ Despite expressing considerable disquiet, the Government deemed it politically expedient to comply. ¹¹⁸ While Justice O’Connor intervened, thereby preventing two executions, there was a presumption within the ruling that if not for ROIA, then there would have been no grounds for intervention. ¹¹⁹ This, therefore, remains a dangerous departure from the common law as it had been stated by Coke, Blackstone and Dicey.

The danger posed by such a departure is obvious, although it is somewhat easier to overlook how weak the theoretical grounding for such a departure is. If, hypothetically, one was to ground martial law in the common law doctrine of necessity, there would be no capacity to justify martial justice while common law courts could sit. It naturally follows that the legal basis for martial justice must be found elsewhere: either in statute, as in the case of DORA and ROIA, or in the imaginary. ¹²⁰ DORA and ROIA, both assigned the possibility for Courts Martial to try civilians, while the Civil Authorities (Special Powers) Acts (Northern Ireland) and the Northern Ireland (Emergency Provisions) Acts – which followed on from these earlier statutory interventions – enabled the radical amendment of procedural criminal law.

One sees, therefore, in many respects, that the First World War, Éirí Amach na Cásca and Cogadh na Saoirse, mark the extinction of martial law. For, despite the claim to martial law, there was an ever increasing reliance on statute. This was in fundamental opposition to the logic of martial law. However, there remained a violent desire to be free from this: the disregard shown for the statutory framework emphasises the allure that the imaginary posed. It is in this vein, that Mbembe writes:

To be deprived of an enemy [. . .] means being deprived of the kind of relation of hatred that would authorize the free exercise of many otherwise forbidden desires. It means, in other words, to be deprived of that demon without which almost nothing is allowed, even at a time when calls for absolute licence, unbridling, and generalized disinhibition appear to ring out with great urgency. ¹²¹

It is in the construction of the enemy that the military authorities could be released from the confinement imposed by law. This is illustrated in the construction of military courts, as opposed to the Courts Martial: the imaginary of law constructed out of the language of law and only understood through its relationship, or lack thereof, to law.

As one turns to the latter part of the twentieth century, the reliance on statutory mechanisms becomes clearer; and, once again, one must distinguish between the true limit of the common law and that which exists beyond it. The ability to deploy the military in aid of the civil authority (MACA), especially in aid of the civil power (MACP) is understood clearly within powers found at common law. ¹²² Despite this, and the statutory bases – under which common law powers were supplemented with statutory ones – the idea of martial law retained some, albeit limited, support.

In a meeting between the Home Secretary and representatives of the Stormont government in 1969, the Northern Ireland Minister of Home Affairs suggested a distinction between the deployment of troops in aid of the civil authority and the imposition of martial law. ¹²³ There was, among some people, a persistent belief in the existence of martial law. The Home Secretary, however, voiced extensive criticisms to what was perceived as a cavalier attitude by the Government of Northern Ireland to the deployment of troops more broadly. ¹²⁴ The sentiment expressed, even if only in passing, that martial law could be theorised to exist where ‘there was armed resistance which could not be dealt with by troops acting merely in aid of the civil power’ had already been suggested in the latter part of the nineteenth century. ¹²⁵ Irrespective of the Home Secretary’s criticism, later contingency planning, on the eve of Stormont’s collapse, included the possibility to appoint Governor as Commander-in-Chief: this, however, with only the most cursory of considerations, was concluded to be neither militarily nor politically viable. ¹²⁶

Moreover, that which had historically been held as the truest domain of martial law had previously been codified, at least temporarily: the ability to court-martial civilians. It is, therefore, interesting to note that, at least when the armed forces were initially deployed in the late 1960s, where they affected arrests, the Royal Military Police – as opposed to the RUC – assumed the responsibility to prosecute. ¹²⁷ The desire to determine the charges and prosecute their own arrests is very logical; although, to some extent, it also harks back to that which Dicey found so repugnant, albeit within the confines of the common law courts. The modification of the judicial process remained a principle fixation of the military and civil authorities. ¹²⁸

DORA and ROIA afforded considerable discretion to both the civil authority, and the armed forces acting under their direction; and, encapsulated the essence that Dicey ascribed to martial law: that of military justice. Therefore, while MACP is grounded in the common law, it was brought to life in statutory provisions. In doing so, it was imbued with a rhetoric and with powers that leveraged the image of martial law. These statutory provisions remained firmly grounded in opposition to the ordinary law; as legislation asserted the rhetoric of martial law. Both the Northern Ireland (Emergency Provisions) Acts and, at least initially, the Civil Authorities (Special Powers) Acts were formally required to be prolonged or readopted. This transitory nature heavily contributed to the rhetorical construction of departing from the ordinary law. In a similar manner, ROIA, which by its scope admittedly could be considered temporary, explicitly situated itself in opposition to the ordinary law. The construction of these acts as an extraordinary law depended on remnants of the imaginary of martial law, which their provisions harked back to, through which it was able to ground this contestation.