Jurisprudence of Successful Treason: Coup d\u27Etat & Common Law

The first part of this article is a survey of all known judicial responses to coups d\u27etat in post colonial common law settings. Although these different coups unfolded in diverse contexts the courts validated all incumbent usurper regimes with one exception. Kelsen\u27s theory of revolutionary legality furnished the primary doctrinal vehicle to reach this result. While some courts adopted Kelsen\u27s proposition that efficacy of a coup bestows validity in an unadulterated form, others modified this with or substituted it by doctrines of state necessity, implied mandate, and public policy. Following Kelsen, they fail to distinguish between legitimacy and validity of a legal order, using the terms interchangeably. The second part of the article evaluates the four possible judicial responses: validation and legitimation of usurpation, strict constitutionalism, resignation of office, and declaration of the issue to be a nonjusticiable political question. It is proposed that declaring the validity and legitimacy of a regime born of a coup d\u27etat a nonjusticiable political question is the most appropriate judicial response because it is doctrinally consistent and principled, morally sound, politically neutral, and institutionally prudent. The article argues that the legitimacy of a usurper regime is a political and moral issue to be resolved through the political processes of a society, and that the validity of a successful coup d\u27etat is a meta legal question which belongs to the province of legal theory. As such, both the legitimacy and validity of a regime born of a successful coup d\u27etat fall outside the jurisdiction and competence of the courts. Designation of these as nonjusticiable political questions will insulate the courts from turbulent politics, deny the usurpers judicially pronounced validity and legitimacy, and facilitate the survival of the courts and the rule of law

Precarious Existence and Capitalism: A Permanent State of Exception

The contemporary neoliberal era is marked by an exponential expansion of contingent and precarious labor markets. In this context, the construct of precarity emerged to signify labor conditions of permanent insecurity and precariousness. Coming at the heels of the era of Keynesian welfare, precarity is mostly seen as an exception to the normal trajectory of capitalist formations. The basic argument of this paper is that under capitalism, for the working classes precarious existence is the norm rather than the exception. Precarity is the outcome not only of insecurities of labor markets but also of capital’s capture and colonization of life within and beyond the workplace. Commodification, the primary logic of capitalism, unavoidably engenders destruction, disruption, dislocation, insecurity, vulnerability, susceptibility to injury and exploitation. For non-capital-owning classes, precarious existence, both as condition of labor and as ontological experience, is the natural and enduring result. Precarity, like capitalism, unfolds on different spatial, temporal and embodied registers differentially. Consequently, the scope and quantum of precarity engendered by capitalism varies across space and time. This differential and variation result from differing levels of commodification, exploitation and colonization of life by capital. While precarity is an unavoidable historical and structural feature of capitalism, neoliberalism has expanded and deepened it. Along the scale of precarity in the era of neoliberal globalization, undocumented immigrant labor represents the condition of hyper-precarity

Debt and Discipline: Neoliberal Political Economy and the Working Classes

Over the last three decades, neoliberal restructuring of the economy created a symbiosis of debt and discipline. New legal regimes and strategic use of monetary policy displaced Keynesian welfare, facilitated financialization of the economy, broke the power of organized labor, and expanded debt to sustain aggregate demand. Public laws and policies created afield of possibility within which financial markets extended their reach and brought ever-increasing sections of the working classes and the marginalized within the ambit of the credit economy. Reordered public policies and new norms of personal responsibility demarcated the horizon within which the economically vulnerable pursued strategies of economic survival and security. Neoliberalism deployed refashioned concepts of individual responsibility and human capital to facilitate the assemblage of subjects who would engage the financialized economy as risk-taking entrepreneurs. Faced with restructured labor markets, wage pressures, and shrinking welfare, working classes found themselves with little choice but to pay for their basic needs through debt. Engulfment in debt, in turn, induced self-discipline and conformity with the logic of the financialized economy and precarious labor markets. This ensemble sutured debt with discipline

Cheaper Than a Slave: Indentured Labor, Colonialism and Capitalism

The construct of free wage-labor, envisaged as consensual sale of labor-power by an autonomous and unencumbered individual in a market of juridical equals governed strictly by economic laws of supply and demand, is the bedrock of the purportedly universal category of labor under capitalism. However, this conceptual ensemble is an instance, yet again, of a particular masquerading as the universal – Europe’s autobiography passing for world history. It also underscores the divergence between mythologies and historical operations of capitalism. This article takes up the deployment of indentured labor from colonial India in plantation colonies across the globe for over a century following abolition of slavery in the British Empire. This story locates modern law within the spatial and temporal matrix of colonialism and empire. It also finds modern law unavoidably entangled with hierarchical positionings of bodies and spaces by global operations of capitalism

Precarious Existence and Capitalism: A Permanent State of Exception

The contemporary neoliberal era is marked by an exponential expansion of contingent and precarious labor markets. In this context, the construct of precarity emerged to signify labor conditions of permanent insecurity and precariousness. Coming at the heels of the era of Keynesian welfare, precarity is mostly seen as an exception to the normal trajectory of capitalist formations. The basic argument of this paper is that under capitalism, for the working classes precarious existence is the norm rather than the exception. Precarity is the outcome not only of insecurities of labor markets but also of capital’s capture and colonization of life within and beyond the workplace. Commodification, the primary logic of capitalism, unavoidably engenders destruction, disruption, dislocation, insecurity, vulnerability, susceptibility to injury and exploitation. For non-capital-owning classes, precarious existence, both as condition of labor and as ontological experience, is the natural and enduring result. Precarity, like capitalism, unfolds on different spatial, temporal and embodied registers differentially. Consequently, the scope and quantum of precarity engendered by capitalism varies across space and time. This differential and variation result from differing levels of commodification, exploitation and colonization of life by capital. While precarity is an unavoidable historical and structural feature of capitalism, neoliberalism has expanded and deepened it. Along the scale of precarity in the era of neoliberal globalization, undocumented immigrant labor represents the condition of hyper-precarity

“Surplus Humanity and the Margins of Legality: Slums, Slumdogs, and Accumulation by Dispossession

Marooned on the outskirts of the law, more than one billion people worldwide live in urban slums and squatter settlements, mostly in the global South. Law, extra-legality, and illegality commingle in urban slums to produce spaces and subjects at the margins of legal orders and formal economies. Three enduring and inter-related features of capitalism-accumulation by dispossession, a reserve army of labor, and an informal sector of the economy-produce and sustain urban slums. The genesis and persistence of slums and slum-dwellers testify to the iron fist of the state working in concert with the hidden hand of the market in the service of accumulation of capital. Over the last thirty years, neoliberal restructuring of economies and reordering of the responsibilities of states have accentuated this process. As a result, slums in the global South have grown exponentially. An examination of public policy and pronouncements of the judiciary in India, as they related to slums and slum-dwellers, calls into question traditional understandings of the law, citizenship, and responsibilities of the state. Mainstream remedial prescriptions for housing for the urban poor increasingly rely on market forces, falling woefully short of their goal, and often accentuating the problem. The incipient right to the city provides a productive framework to re-imagine the concept of citizenship, and to guide public policy and popular action to ensure adequate housing with dignity for the urban poor and marginalized

Praetorianism & Common Law in Post-Colonial Settings: Judicial Responses to Constitutional Breakdowns in Pakistan

The successive constitutional crises that confronted the Pakistani courts were not of their own making. But the doctrinally inconsistent, judicially inappropriate, and politically timid responses fashioned by these courts ultimately undermined constitutional governance. When confronted with the question of the validity and scope of extra constitutional power, the courts vacillated between Hans Kelsen\u27s theory of revolutionary validity, Hugo Grotius\u27s theory of implied mandate, and an expansive construction of the doctrine of state necessity. A more principled and realistic response would have been to declare the validity of extra constitutional regimes a nonjusticiable political question. Besides ensuring doctrinal consistency, a refusal to furnish extra constitutional regimes with judicially pronounced validity may well have discouraged praetorian encroachment upon constitutional governance. A consistent refusal to pronounce upon nonjusticiable political questions might have promoted a democratic constitution building process by implicitly reminding the body politic of its primary responsibility to build and preserve constitutional orders. Furthermore, during the periods when these courts had the opportunity to exercise judicial review under a constitution, they failed to enunciate a consistent and coherent standard of review. By misapplying the political question doctrine, the courts implied that democratically elected legislatures possess unfettered legislative power. By refusing to fashion judicial checks against potential tyranny of the majority, the courts acquiesced in the contraction of fundamental rights and the diminution of federalism during the Fourth Republic. This facilitated the demise of the Fourth Republic following yet another military usurpation of power. A better approach would have been for the courts to invalidate any legislation which jeopardized the basic structure and essential features of the constitution