THE PUZZLE OF MARTIAL LAW

Abstract

Martial law is thought to be not a complete absence of law, nor a special kind of law – a scheme of legal regulation – but, rather, an absence of law prescribed by law under the concept of necessity – a legal black hole, but one created, perhaps even in some sense bounded, by law. A.V. Dicey claimed that martial law in this sense is ‘unknown to the law of England,’ which is ‘unmistakable proof of the permanent supremacy of the law under our constitution.’ This article explores Dicey's claim against the backdrop of the legal events that followed Governor Edward John Eyre's proclamation of martial law in reaction to the Jamaica uprising of 1865 and his ruthless suppression of the uprising. It might seem that these events, as well as later experience, show that Dicey was naïvely wrong. But the article argues that a proper understanding of the jurisprudential issues and of that experience support his view.