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

Abstract

This article draws on the work of Nasser Hussain and Keally McBride to think about the way that law is violent. Hussain’s work shows that the law’s much vaunted distinction between ordinary law and the state of emergency is a false dichotomy, one that stems from Britain’s colonial legacy wherein only Britain was said to follow “the rule of law” and other parts of the world (including areas that it therefore got to colonize) were subject to a perpetual state of emergency. Hussain shows how this binary serves to make British rule seem benign and palatable even as it disguises the way that the British state was violent, not only in the colonies but also in the metropole. By looking further at the practices of “ordinary” law, I argue via Hussain and McBride that procedure and codification, nominally the benign and nonviolent practice of creating order and method in the practice of non-emergency law, are themselves thoroughly violent. Hussain shows this through his notion of hyperlegalism whereby places (such as Guantánamo) are said to be lawless but are actually suffused with various forms of ordinary law. McBride shows this through her study of the life work of James Stephen and James Fitzjames Stephen, a father and son who administered much of the legal practices of the British Empire in the mid 19th century and who were both essentially the embodiment of the rule of law in the colonies. In both cases, more for the father than for the son, any attempt to render the rule of law nonviolent met with failure. Codification became the way to formalize and disguise the degree to which the law perpetuates (rather than holds back) the violence and racism of empire. In this way procedure and codification are not just the means for state violence but are themselves a form of violence, a kind of “law of rules,” conforming to what Walter Benjamin calls “law preserving violence.”