The Terrible Beauty of Dictatorship
By Colm Gillis
Martial law is the equivalent of the French state of siege in England and a form of martial law, even having the same name when translated directly into French, had existed in France from 1789-1793.  The strongest opinion holds that martial law originates in the common law and that means that either the government or citizens, i.e. any enfranchised member of the commonwealth, may take whatever action is necessary, spilling whatever blood and destroying whatever property as is required, to restore a normal situation. Pollock gives the quite sensible opinion that an office-holder of the State must have as his first priority the defence of the existing order as opposed to obeying the written law; since ‘common law’ is about ‘common sense’ as well as custom it would be ludicrous for public order to be ‘left out to dry’ in order to follow legal regulations during a crisis.  Necessity is the word that crops up time and again in the literature surrounding martial law and necessity justifies civic autonomy with regards to a martial law declaration. In other words, it would hardly be a situation of necessity if a good citizen had to go through a tedious and orderly procedure before dealing with a disturbance of an existential nature.
In 1780, the phrase ‘martial law’ cropped up during upheavals in London. Those insurgents who were armed were treated as if they were combatants but the area itself was not considered one of military jurisdiction. 
With respect to the course of action open to the executors of the British ‘state of emergency,’ Schmitt describes martial law thus:
It is a kind of situation outside the law, in which the executive … can act without paying heed to any legal limitations, doing whatever it takes to suppress the enemy in the given circumstance. 
While James Mackintosh states, with respect to the legal justification for martial law, that:
The only principle on which the law of England tolerates what is called Martial Law is necessity; its continuance requires precisely the same justification of necessity; and if it survives the necessity on which it alone rests for a single minute, it becomes instantly a mere exercise of lawless violence. 
Martial law suspends basic rights, placing a military, or para-military organization, in command over a civilian authority. There is a simple, defined aim; the restoration of the former order. England’s colonizing of other lands historically lead to ‘disturbances’ and often martial law was used in Ireland to suppress rebellion.
The cited insurgency of 1780 (where there was no area of military jurisdiction, as such) reveals the ambiguity when applying the adjective ‘martial’ to one of the most celebrated English crisis instruments. What is true of the adjective is also true of the noun. Mechanisms of martial law mean that, fundamentally, the phrase is not deserving of the name ‘law.’ Law is form put on known, defined, or theorized content. Martial law is more like a cocked gun, or a trap that is actuated when someone steps into it. Necessity, and the quasi-military nature of the process, means that precise measures taken during martial law fall outside of normal legislative and judicial process. Legality, or the fig-leaf thereof, is retrieved somewhat in the aftermath of the crisis. Judicially, circumstances have to be examined ‘after the fact’ and the ‘law,’ in the imprecise meaning of that word, must be applied at this ex post juncture. There may be some precedent to guide a judge who examines the facts of any martial law declaration but details of the emergency are likely to be sui generis in at least some regards. So, despite “its name, martial law … is not a right or a law at all, but rather a procedure.” Certain formalities have to be followed and some precedent must be taken on board but quashing of the disturbance determines the degree of action required. Therefore, martial law “is genuinely governed by a practical goal … in which the legal control limits itself to the conditions under which that procedure has come into effect.” 
It is crucial, if we are merely considering the jurisprudence of martial law, to clearly distinguish it from a state of siege. In France, the equivalent procedure is centralized and relies, when you get down to it, on decrees issued from a central core. This renders martial law slightly hard to pin down, in terms of its exact juristic nature.  However, the way in which martial law is applied makes it virtually identical to the French state of siege. Habeas corpus can be suspended, for example and for “the duration of a regime of martial law the ordinary citizen can consider himself practically a member of the armed forces.”  The effects of the state of siege or martial law are virtually identical while their historical origins, intent, place in the legal system, and respective sources of authority are completely dissimilar. Another way of characterizing the subtle but important differences between martial law and a state of siege is this: the law characterises the status of the judicial process during a state of siege, whereas during martial law proceedings, the nature of the specific emergency parameterizes to what degree due process may be suspended. 
 It was used to disperse crowds and for that reason met with the disapproval of the Jacobins who, of course, sought to incite the crowd. When they ascended to power, martial law was never seen again in France. Dictatorship: From the Origin of the Modern Concept of Sovereignty to Proletarian Class Struggle Carl Schmitt, Michael Hoelzl, Graham Ward (Trans.) (Polity Press, Malden, MA, Cambridge 2014); pp. 155-160.
 Constitutional Dictatorship: Constitutional Government in the Modern Democracies Clinton L. Rossitter (Princeton University Press, Princeton, 1948); p. 222.
 Dictatorship Schmitt; p. 149.
 Constitutional Dictatorship Rossitter; p. 227.
 Dictatorship Schmitt; p. 149. There are subtleties as to whether martial law can be declared only when the necessity has actually arrived ‘on the doorstep’ or whether it can operate when a necessity is ‘coming down the road.’ Most likely, with the invasion of a powerful force, the latter would be the default. Once more, this ambiguity demonstrates the flexibility of martial law and such context-dependent lawmaking is a feature of a common law jurisdiction like Britain.
 Introduction to the Study of the Law of the Constitution (8th Ed.) A.V. Dicey (Macmillan, London, 1927); pp. 283-284.
 Constitutional Dictatorship Rossitter; p. 225.
 Ibid.; pp. 228-231
Excerpted from The Terrible Beauty of Dictatorship by Colm Gillis. Copyright © 2016 by Colm Gillis. All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the author.