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(i) What is Martial Law? It is difficult to define martial law, especially because of "the haze of uncertainty which envelops it. " 1 The expression is used to denote a variety of forms of government or law, such as military law governing soldiers in the service of the State, military govern ment in occupied areas, any kind of arbitrary government in which the military arm plays a dominant role, and the emergency ad ministration "which obtains in a domestic community when the military authority carries on the government, or at least some of its functions. " 2 It is in the sense indicated last that martial law is discussed in the following pages. In this sense, it is "the extension of military government to domestic areas and civil persons in case of invasion or rebellion. . . it is a suspension of normal civil government in order to restore it and has civilians for its subjects and civil areas for its loci of operation. " 3 Thus martial law has to be clearly distinguished from military law and military government, though 4 all these have common roots in history and logic. The term 'martial law' was originally applied to the law ad ministered by the court of the Marshal and the Constable of England. There are two theories about the source of the word 'martial' in the expression. One theory is that the term 'martial 1 C. Fairman, The Law of Martial Rule, page 19. 2 idem, page 30.
John M. Collins presents the first comprehensive history of martial law in the early modern period. He argues that rather than being a state of exception from law, martial law was understood and practiced as one of the King's laws. Further, it was a vital component of both England's domestic and imperial legal order. It was used to quell rebellions during the Reformation, to subdue Ireland, to regulate English plantations like Jamestown, to punish spies and traitors in the English Civil War, and to build forts on Jamaica. Through outlining the history of martial law, Collins reinterprets English legal culture as dynamic, politicized, and creative, where jurists were inspired by past practices to generate new law rather than being restrained by it. This work asks that legal history once again be re-integrated into the cultural and political histories of early modern England and its empire.
This book presents a comprehensive legal and constitutional study of emergency powers from a comparative common law perspective. It is one of very few comparative studies on three jurisdictions and arguably the first one to explore in detail various emergency powers, statutory and common law, constitutional and statutory law, martial law and military acting-in-aid of civil authority, wartime and peacetime invocations, and several related and vital themes like judicial review of emergency powers (existence, scope and degree). The three jurisdictions compared here are: the pure implied common law model (employed by the UK), implied constitutional model (employed by the USA) and the explicit constitutional model (employed by India). The book’s content has important implications, as these three jurisdictions collectively cover the largest population within the common law world, and also provide maximum representative diversity. The book covers the various positions on external emergencies as opposed to internal emergencies, economic/financial emergencies, and emergent inroads being made into state autonomy by the central or federal governments, through use of powers like Article 356 of the Indian Constitution. By providing a detailed examination of the law and practice of emergency powers, the book shares a wealth of valuable insights. Specific sub-chapters address questions like – what is the true meaning of ‘martial law’; who can invoke ‘martial law’; when can it be invoked and suspended; what happens when the military is called in to aid civilian authorities; can martial law be deemed to exist or coexist when this happens; what are the limits on state powers when an economic emergency is declared; and, above all, can, and if so, when and how should courts judicially review emergency powers? These and several other questions are asked and answered in this study. Though several checks and constraints have been devised regarding the scope and extent of ‘emergency powers,’ these powers are still prone to misuse, as all vast powers are. A study of the legal propositions on this subject, especially from a comparative perspective, is valuable for any body politic that aspires to practice democracy, while also allowing constitutionally controlled aberrations to protect that democracy.
This book is a volume in the Penn Press Anniversary Collection. To mark its 125th anniversary in 2015, the University of Pennsylvania Press rereleased more than 1,100 titles from Penn Press's distinguished backlist from 1899-1999 that had fallen out of print. Spanning an entire century, the Anniversary Collection offers peer-reviewed scholarship in a wide range of subject areas.
The Armed Forces Special Powers Act (AFSPA) has become one of the most controversial laws, both in India and the world. A few NGOs and human rights activists have described it as draconian, alleging that it gives the armed forces unrestricted power to ‘arrest’ without warrant, ‘destroy property’ and ‘shoot to kill’, besides providing them with complete immunity. The loud and continuous clamour against the Act has drawn the attention of various international organizations. The UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Christof Heyns, has recently called for the repeal of the law, stating: “AFSPA allows the state to override rights. Such a law has no role in a democracy and should be scrapped.” On the other hand, the armed forces hold that the AFSPA is necessary for tackling the growing menace of militancy and protecting their men from the unnecessary harassment caused by litigation. General V K Singh, the former chief of army staff and now a cabinet minister, has emphasized that the AFSPA is a ‘functional requirement’ of the armed forces. This is the first book in India not only to attempt a complete analysis of the various provisions of the AFSPA, but also to provide an insight into the legislative efforts of other democracies to meet the challenges of growing terrorism. It delves into cases of human rights violations in which members of the armed forces have been implicated, and at the same time, argues that it is equally important to safeguard the human rights of the members of the armed forces. In order to help find an amicable solution, the author makes a few recommendations for the consideration of the government and armed forces.
This book shows how emergency powers can be justifiable in liberal democracies without suspending liberal norms.
A pioneering venture, this book is the first major effort toward a valid comparison of the political systems of Asia, Africa, the Near East, and Latin America. After establishing a theoretical framework based on a functional approach to comparative politics, the authors apply their scheme to Southeast Asia (Lucian W. Pye), South Asia (Myron Weiner), SubSaharan Africa (James S. Coleman), the Near East (Dankwart Rustow), and Latin America (George I. Blanksten). In each area they survey the political background, the nature and function of political, governmental, and authoritative structures, the processes of change and means of political integration. The contributors have performed an extraordinarily difficult feat of classification, description, synthesis, and analysis in what promises to be a book of seminal importance in comparative politics. Originally published in 1960. The Princeton Legacy Library uses the latest print-on-demand technology to again make available previously out-of-print books from the distinguished backlist of Princeton University Press. These editions preserve the original texts of these important books while presenting them in durable paperback and hardcover editions. The goal of the Princeton Legacy Library is to vastly increase access to the rich scholarly heritage found in the thousands of books published by Princeton University Press since its founding in 1905.

Appendices

United States. Commission on the Organization of the Government for the Conduct of Foreign Policy

Published: 1975

Total Pages: 828


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