Abstract
This chapter discusses the three historical paradigms that provide much needed theoretical basis for a discussion of various facets of emergency powers that follow in remaining chapters. Whereas the Greek and Roman perspectives on emergency powers have been, and almost always are, dutifully discussed by several writers and commentators on emergency powers, the uniqueness of this chapter lies in the focus that the authors provide on “Ancient and Medieval India.” There is hardly any scholarly discussion available on the ancient Indian thought on emergency powers. Chapter 5, in its first part, also takes forward this discussion. This work thus holistically centers emergency powers not only in Western philosophical thought but also in Indian literature, ancient and medieval, the latter supplying a glaring omission of existing scholarship.
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Notes
- 1.
See O’Donnell [1].
- 2.
Questiaux [2]. For a different approach in the American context, see Miller [3] who defines emergencies as “not only the conditions suggested above—those of an urgent nature—but also perceptions by political (and group) officers of actions necessary for the well-being of the entity (that means the well-being of the state broadly defined).” Later, he refers to emergencies as “that set of conditions perceived by political officers, frequently the executive acting alone but often in concert, actual or tacit, with the Congress to require actions which under basic constitutional theory are extraordinary, even extra-constitutional,” id. at 48. See also Jenkins [4] (reviewing Miller’s book).
- 3.
Nicolay and Hay [5] (writing particularly of the power to emancipate).
- 4.
Aristotle, Politics 196 (Benjamin Jowett trans., Oxford Univ. Press 1885). In book 6, Aristotle notes—
The mere establishment of a democracy is not the only or principal business of the legislator, or of those who wish to create such a state, for any state, however badly constituted, may last one, two, or three days; a far greater difficulty is the preservation of it. The legislator should therefore endeavour to have a firm foundation according to the principles already laid down concerning the preservation and destruction of states; he should guard against the destructive elements, and should make laws, whether written or unwritten, which will contain all the preservatives of states. He must not think the truly democratical or oligarchical measure to be that which will give the greatest amount of democracy or oligarchy, but that which will make them last longest.
- 5.
Machiavelli [6, pp. 19–22].
- 6.
Machiavelli [7].
- 7.
Gewrith [8].
- 8.
Hobbes [9].
- 9.
Locke [10, p. 80]. In Chap. XIV of his treatise, on prerogative powers, Locke observes—
Nay, it is fit that the laws themselves should in some cases give way to the executive power, or rather to this fundamental law of nature and government, viz., that as much as may be all the members of the society are to be preserved.
- 10.
Rousseau [11, p. 109].
- 11.
Spinoza [12].
- 12.
Hobbes [13, p. 163]. See also Calvin’s Case (1608) 1 St. Tr. 659, where Coke, C.J., states that allegiance and protection are two sides of the same coin.
- 13.
Locke [10, p. 80].
- 14.
Hobbes [13, p. 239].
- 15.
Hobbes [13, p. 232].
- 16.
Cicero [14] (circa 52 B.C.).
- 17.
Mill [15]. See essay titled Considerations on Representative Government id. at 371.
- 18.
Machiavelli [16, p. 203].
- 19.
Locke [10, pp. 80–81].
…[A]nd because also it is impossible to foresee, and so by laws to provide for all accidents and necessities that may concern the public, or make such laws as will do no harm if they are executed with an inflexible rigour on all occasions and upon all persons…therefore there is a latitude left to the executive power to do many things of choice which the laws do not prescribe.
See also, Rousseau [11, p. 108]
The inflexibility of the laws, which prevents them from being adapted to emergencies, may in certain cases render them pernicious, and thereby cause the ruin of the State in a time of crisis…A thousand cases may arise for which the legislation has not provided and to perceive that everything cannot be foreseen is a needful kind of foresight.
- 20.
Aristotle, Politics 190, 195, 198 (Jowett trans., 1985); 1 Dialogues of Plato 325 (Jowett trans., Oxford University Press, 1871) (circa 387 B.C.).
- 21.
Aristotle, Politics 246–47 (Jowett trans., 1985); 1 Dialogues of Plato 421–24 (Jowett trans., Oxford University Press, 1871) (circa 387 B.C.).
- 22.
- 23.
Hammond [18].
- 24.
Aristotle, Constitution of Athens 70 (K.V. Fritz and E. Kapp trans., 1950).
- 25.
Id. at 93.
- 26.
Id. at 100, 173–74.
- 27.
Id. at 101.
- 28.
- 29.
See Mommsen [22] (arguing that the original title was probably “praetor” but that “dictator” was later adopted in deference to republican sentiment. One of the many meanings of the word is he who issues edicts.).
- 30.
Greenidge [20, p. 84].
- 31.
Id. See also, Mommsen [22].
- 32.
Greenidge [20, pp. 84–85].
- 33.
- 34.
Rossiter [21, p. 20]. He also appoints out that the power of appointment resided constitutionally in the two consuls, who might act jointly, in consultation with the praetor or separately, in which case the Consuls who made the appointment were chosen by lot.
- 35.
Greenidge [20, p. 192]. However, it is interesting to note that the various trivial needs and tasks of peacetime also led to the appointment of a bewildering variety of dictators; thus there were dictators appointed for holding elections, for making out the list of the Senate, for celebrations of games, for the ordering of festivals and for the ritual of driving the nail into the temple of Jupiter. (Id. at 193) As a writer on the subject puts it:
In each of these instances, an unusual act of state to which no official was considered competent or for which the regular official was temporarily incapacitated demanded performance…(and) the dictatorship was chosen to fill the breach.
See Rossiter [21, p. 23].
- 36.
Saint Augustine of Hippo, The City of God 118–19 (Marcus Dods ed. and trans.1948) (circa 426 A.D.).
- 37.
Rossiter [21, p. 19].
- 38.
Id.
- 39.
See Machiavelli [16, pp. 202–03]. See also Rousseau [11, pp. 110–11] (commenting on the Roman dictatorship, Rousseau opined that “only the greatest danger can outweigh that of changing the public order and the sacred power of the laws should never be interfered with except when the safety of the country is at stake.”).
- 40.
Id.
- 41.
Rossiter [21, p. 24]. However, Machiavelli refers to the case of Manlius Capitolinus who was angry at the honors bestowed upon Furius Camillus and alleged nepotism and maladministration. “These statements produced a great impression among the people …This greatly displeased the Senate, who, deeming the occasion momentous and perilous, created a dictator who should take cognizance of the facts and repress the audacity of Manlius.” See Machiavelli [16, p. 135]. (“In proportion as accusations are useful in the Republic, so are calumnies pernicious.”). The dictator summoned Capitolinus to a public peace, asked for details of the alleged misappropriation, and upon getting an inadequate and evasive reply “had him incarcerated.” Id.
- 42.
- 43.
Rossiter [21, p. 26].
- 44.
Saint Augustine of Hippo, The City of God 68 (Marcus Dods ed. and trans.1948) (circa 426 A.D.).
- 45.
Machiavelli [16, p. 202].
- 46.
Rousseau [11, pp. 110–11].
- 47.
Montesquieu [23].
- 48.
Id.
- 49.
Machiavelli [16, p. 195].
- 50.
Rossiter [21, pp. 23–24]. He gives the example of L. Manlius Imperiosus who, when called up in 363 B.C. clavi figendi causa (for “driving in the nail”), regarded his selection as due to military rather than religious reasons and assumed the role of a full-fledged dictator, but in the face of the unanimous opposition of the tribunes was forced to resign from his office.
- 51.
Machiavelli [16, p. 202].
- 52.
The theory of the “basic structure of the Constitution” enunciated by the Indian Supreme Court in Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461 states that while the amending power of the Parliament in its constituent capacity is wide and untrammeled and subject only to article 368 of the Indian Constitution, Parliament cannot, in the exercise of its amending powers, alter the basic structure of the Indian Constitution. Minerva Mills v. Union of India, AIR 1980 SC 1789 extended the doctrine by making judicial review an integral part of the basic structure. This has never been fully defined, although some elements of it like republican democratic nation and free and fair elections have been enumerated. See, Seervai [29], Palkhivala [30], Basu [31].
- 53.
Rousseau [11, p. 109].
- 54.
Locke [10, pp. 80–81].
- 55.
Machiavelli [16, p. 202].
- 56.
Rossiter [21, p. 24].
- 57.
Id. at 20.
- 58.
Id. at 24.
- 59.
Machiavelli [16, p. 202]. According to Rousseau, he could never “silence all the laws and suspend for a moment the sovereign authority.” Further, said Rousseau, the dictator could not be called to account or be reproached for what he had done, as could, for instance, be Cicero, who was a consul.
- 60.
- 61.
Greenidge [20, p. 194].
- 62.
Id. at 195.
- 63.
Rossiter [21, p. 28].
- 64.
Compared by many to Machiavelli and by others to Aristotle and Plato, Kautilya is alternately praised for his sound political wisdom and knowledge of human nature and condemned for his ruthlessness and trickery. All, however, agree that it was because of Kautilya that the Mauryan Empire under Chandragupta (reign c. 321 B.C. to 297 B.C.), to whom Kautilya was advisor and counselor, became a model of efficient government. The best translation of Kautilya’s book is to be found in the book by Shamasastry, who discovered the lost treatise.
- 65.
Spellman [32]
The fear of anarchy was almost pathological. Underlying every concept of kingship was the doctrine of Matsya Nyaya, the analogy of the big fish eating up the little fish.
- 66.
Atharva Veda VI. 87–88. Also Rig Veda X. 173 (slightly codified).
[R]emain firmly without faltering… be you firm like the mountain and may you not come down. Be you firm here like India; remain you here and hold the state… firm as the heaven, firm as the earth, firm as the universe, firm as the mountains, let this raja of the people be firm … Vanquish you firmly, without failing, the enemies …. And for firmness the Assembly here creates (appoints) you.
See also Jayaswal [33, pp. 186–87], Prasad [34, p. 16]. The Vedas are the sacred hymns and oblational verses of Indo- European peoples on a pre-Sanskrit language and are widely regarded as the oldest literature in the history of mankind.
- 67.
- 68.
See, inter alia, Prasad [34, pp. 51–52] (“The … idea of protection as embodying the supreme function of royalty or government runs through the whole of Indian political speculation”). See also Jayaswal [33, p. 321]
The theory that taxes were wages to the king for protection was so ingrained in the constitution that even partial failure of protection was deemed to entitle the subject to claim refund of wages in proportion to loss.
The king has been described as “preeminently the protector of this people…”; i.e., “gopajanasya” (Rig Veda III. 43) and as “Dharampravartaka.” See Rao [35, p. 123]. See also, Pratap Chandra Ray, Mahabharata, Book XII Santi Parva, CXXXIX, 459 which states that according to Manu, one of the seven attributes of a king include “protection,” the other six being “mother, father, preceptor, fire, vaicravana and Yama.” It sanctions abandonment of a king who fails to protect, as a leaky ship is dangerous and ought to be abandoned. To the same effect is Hobbes. See Hobbes [13, pp. 169–70] (Leviathan, XXI).
- 69.
Prasad [34, p. 16].
- 70.
2 Beveridge [37]. There is the example of Akbar who, in 1564, wanted the slave Fulad put to death immediately for firing an arrow at him.
- 71.
Kautilya, Arthasastra, 294 (Rudrapatna Shamasastry ed., trans., 1915) (circa 300 B.C.).
- 72.
Yudhishtir uses graphic language in Mahabharata to describe seasons of distress:
When high righteousness suffers decay and is transgressed by all, when unrighteousness assumes the form of its reverse; when all wholesome restraints disappear, and all truths in respect of righteousness are disturbed and confounded; when people are oppressed by kings and robbers, when men of all the four modes of life become stupefied in respect of their duties, and all acts lose their consequence of lust and covetousness and folly, when one another in their mutual dealings, when houses are burnt down throughout the country, when the Brahmanas become exceedingly afflicted, when the clouds do not pour a drop of rain, when every one’s hand is turned against every one’s neighbor, when all the necessaries of life fall under the power of robbers, when, indeed such a season of terrible distress sets in, by what means should a Brahmin live who is unwilling to cast off compassion and his children?
How, indeed, should a Brahmin maintain himself at such a time? Tell me this, O grandsire? How also should the king live at such a time when sinfulness overtakes the world? How, O scorcher of foes, should the king live so that he might not fall away, from both righteousness and profit?
See Pratap Chandra Ray, Mahabharata, Book XII Santi Parva, CXLI, 467–68.
- 73.
Id. at 468. Described in the Mahabharata as follows:
[E]xtending for twelve years… (when) the thousand eyed deity of heaven poured no rain…(when) agriculture and keep of cattle were abandoned, stakes for teethering sarcrifical animals disappeared, … festivals and amusements perished… the cities and towns … became empty of inhabitants…. Brahmins began to die on all sides, protection was at an end; herbs and plants were dried up; the earth became shorn of all her beauty and exceedingly awful like trees in a crematorium; … when righteousness was nowhere… men in hunger lost their senses and began to eat one another….
- 74.
Indeed, the Arthasastra deals with “alasya” (laziness and inertia in the body politic) and “premada” (hedonism) as factors which undermine and subvert the foundation of the social and political order and must be combated. See Rao [35, p. 155].
- 75.
Prasad [34, p. 66].
- 76.
Kautilya, Arthasastra, 449 (Rudrapatna Shamasastry ed., trans., 1915) (circa 300 B.C.). See also, Ramaswamy [38].
- 77.
Manusmriti, supra note 4, II. 40.
- 78.
Id. at II. 13.
- 79.
Id. at III. 14.
- 80.
Id. at V. 43.
- 81.
Id. at IX. 313.
- 82.
Pratap Chandra Ray, Mahabharata, Book XII Santi Parva, CXXXIT, 425.
- 83.
Id. at CXXXII, 423; CXXXII, 460; CLXVI, 531.
- 84.
Id. at CXXXVI, 431.
- 85.
Pratap Chandra Ray, Mahabharata, Book XII Santi Parva, CXLI, 468 et. seq.
- 86.
Id. at 470.
- 87.
Id. at 468.
- 88.
Id. See also Manusmriti X. 106 & 107, which tell of Vandeva and Bharadwaj, the former trying to eat dog’s flesh to save his life.
- 89.
Pratap Chandra Ray, Mahabharata, Book XII Santi Parva, CXLI, 473.
- 90.
Manusmriti X. 105.
- 91.
Pratap Chandra Ray, Mahabharata, Book XII Santi Parva, CXLI, 471. Cf. Hobbes [13, p. 232].
If a man, by terror of present death, be compelled to an act against the law, he is totally excused; because no law can oblige a man to abandon his own preservation…. When a man is destitute of food, or other thing necessary for his life, and cannot preserve himself in any other way but by some act against the law; as if in a great famine, he takes away the food by force or steals…or in defense of his life snatch away another man’s sword, he is totally excused.
- 92.
Pratap Chandra Ray, Mahabharata, Book XII Santi Parva, CXLI, 477.
- 93.
See Pratap Chandra Ray, Mahabharata, Book XII Santi Parva, CXXXVIII, 435 et seq, tells the story of a cat which was ensnared in a trap at the foot of a banyan tree. A mouse, who lived in a hole under the tree, one day found himself hunted by both a mongoose and an owl without any means of escape. “At such a season of great danger, when death itself was staring one in the face, when there is fear on every side” the mouse decided to befriend the trapped cat and hid under its belly on the condition that it (the mouse) would release the cat from the trap as soon as the danger to the mouse had passed away and before the hunter comes for the cat. The story ends by narrating how the mouse wisely refused to release the cat at any time prior to the arrival of the hunter; when released just as the hunter was approaching, the cat could only escape to safety without making a meal of the mouse.
- 94.
Manusmriti, X. 102.
- 95.
Id. at X. 113.
- 96.
Id. at X. 117.
- 97.
Id. at XI. 128.
- 98.
See, inter alia, Pratap Chandra Ray, Mahabharata, Book XII Santi Parva, CXL, 461; Prasad [34, pp. 60–61].
- 99.
Manusmriti, supra note 4, X. 118.
- 100.
Kautilya, Arthasastra, 341–42 (Rudrapatna Shamasastry ed., trans., 1915) (circa 300 B.C.).
- 101.
Pratap Chandra Ray, Mahabharata, Book XII Santi Parva, LXXXVII, 23–24.
- 102.
Kautilya, Arthasastra, 61 (Rudrapatna Shamasastry ed., trans., 1915) (circa 300 B.C.).
- 103.
Kautilya, Arthasastra, 139 (Rudrapatna Shamasastry ed., trans., 1915) (circa 300 B.C.).
- 104.
Kautilya, Arthasastra, 251 (Rudrapatna Shamasastry ed., trans., 1915) (circa 300 B.C.).
- 105.
Kautilya, Arthasastra, 255 (Rudrapatna Shamasastry ed., trans., 1915) (circa 300 B.C.).
- 106.
See, inter alia, Pratap Chandra Ray, Mahabharata, Book XII Santi Parva, CXXXII 423; id. at CXXXIII, 425; Kautilya, Arthasastra, 522 (Rudrapatna Shamasastry ed., trans., 1915) (circa 300 B.C.).
- 107.
Rao [35, p. 132].
- 108.
Id. at 131.
- 109.
Kautilya, Arthasastra, 336 (Rudrapatna Shamasastry ed., trans., 1915) (circa 300 B.C.).
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Singhvi, A., Gautam, K. (2020). The Concept of Emergency Powers in History and Political Thought: Greek, Roman and Indian Paradigms. In: The Law of Emergency Powers. Springer, Singapore. https://doi.org/10.1007/978-981-15-2997-9_1
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