Book NotesRecensions Simples

R.W. Kostal, A Jurisprudence of Power: Victorian Empire and the Rule of Law (Oxford and New York: Oxford University Press, 2008), pp. xiii, 529[Record]

  • Mark Antaki

First published in hardback in 2005, reprinted in 2006, and first published in paperback in 2008, R.W. Kostal’s A Jurisprudence of Power: Victorian Empire and the Rule of Law is usefully contrasted with other recent works on the rule of law such as Brian Z. Tamanaha’s On the Rule of Law: History, Politics, Theory. As opposed to covering thousands of years as well as the politics and theory of the rule of law in 180 pages, Kostal, a historian and professor of law at the University of Western Ontario, and author of Law and English Railway Capitalism, 1825–1875, spends 529 pages (comprising an introduction, seven chapters, an epilogue, a conclusion, and an appendix) focusing on one historical episode spanning less than a decade. Kostal devotes his efforts to attending to, mapping out, and thematizing the English preoccupation with legality as manifested in, but also as constitutive of, the Jamaica controversy. Throughout his book, Kostal aims “to show how legal ways of seeing and doing were central features of English political discourse and conflict.” He aims in part to provide a corrective to previous historical accounts of the Jamaica controversy which “failed to apprehend that the Jamaica affair was understood, described, and contested largely in terms of legal language and procedures.” Kostal’s book narrates and reconstructs one historical episode closely tied to what Judith N. Shklar has famously called legalism, “the ethical attitude that holds moral conduct to be a matter of rule following, and moral relationships to consist of duties and rights determined by rules” and of which “[t]he court of law and the trial according to law are the social paradigms, the perfection, the very epitome.” Kostal’s twenty-two page introduction sets forth the Morant Bay uprising, its suppression, and the formation of the Jamaica Committee. He ties the uprising at the courthouse to a racist local justice and situates it against British Jamaica’s history and constitution, particularly its history of slavery and slave insurrection. He also draws attention to the suppression’s most famous victim, a “coloured landowner-politician, George Gordon,” who had been a prominent advocate of reforms but of whom it had not been alleged that he “had been directly involved in acts of violence.” Even though he surrendered voluntarily when charged with high treason and sedition, he was removed “from the civilian jurisdiction of Kingston for trial by a military tribunal at Morant Bay.” He was “[d]enied access to a lawyer, and most other vestiges of civilian criminal justice,” and was ultimately sentenced to execution and hanged. Kostal finds “unremarkable” that “[t]he insecurity of whites had always been the central premiss of public law and planning in the colony” but finds “[m]ore intriguing” that “Jamaica’s colonial officials ... in the face of dire public emergency, were also preoccupied with legality.” This preoccupation, Kostal explains, also characterized Eyre’s response to the rebellion and his turn to legal advice and to martial law. Nevertheless, “[t]he definition of martial law was one vexed question, the nature of the legal authority to proclaim martial law another.” The preoccupation with legality coupled with martial law’s unsettled character are inseparable and dominant themes in Kostal’s account and reflect the title of his work. Kostal begins the principal part of his narrative by tracing the transformation of the Jamaica affair into a historical episode of legalism and ends by pointing to some of the limits of this legalism. The first chapter, “‘The Country of Law’: Reconstructing the Morant Bay Uprising in England”, shows how “[i]n the space of just more than two weeks,” beginning in the first week of November 1865, “the Jamaica …