1.1 A Working Definition

For the purposes of this volume, martial law shall denote the temporary substitution of military authority for civilian government, taking effect upon a formal proclamation by competent authority and operating under the constraint of an enumerated necessity. The phrase appears in three loose senses:

1. Military jurisdiction over enemies — the law applied to the armed forces of a foreign belligerent, more accurately termed the law of war.
2. Military government of occupied territory — rule by an occupying army, governed by international humanitarian law.
3. Domestic martial law — the displacement of a state's own civil administration by its own military forces, the chief subject of this work.

1.2 Distinct from State of Emergency

Many constitutional orders — France, Spain, Brazil, the Republic of Korea among them — distinguish a graded scale of crises. A state of emergency typically authorises augmented police powers while leaving civil courts intact; martial law goes further, transferring jurisdiction itself to military tribunals. The boundary is consequential: it determines whether judges, prosecutors, and the press continue under their accustomed liberties, or under the gun.

“The civil courts being open and in the unobstructed exercise of their jurisdiction, military commissions cannot try civilians.”

— Ex parte Milligan, 71 U.S. 2 (1866)

1.3 The Civil–Military Boundary

Every regime of martial law presupposes a line, drawn with greater or lesser precision, between the spheres proper to civilian and military authority. That line is rarely a tidy one. It is contested in theory by jurists, in practice by commanders, and in retrospect by the courts that adjudicate its excesses. The remainder of this volume traces the line as it has been drawn, redrawn, and erased across two thousand years of constitutional experience.

2.1 Roman iustitium

The Roman Senate's declaration of iustitium — literally, the standing-still of law — suspended the courts so that magistrates might attend to the defence of the city. It is the Western tradition's earliest formal articulation of the idea that ordinary law may be paused in the face of mortal threat. Agamben, in his State of Exception (2005), finds in iustitium the genealogical root of the modern suspension.

2.2 English Common Law Origins

English jurisprudence, suspicious of standing armies, treated martial law warily. The Petition of Right (1628) denounced the issuance of commissions of martial law against subjects in time of peace as contrary to the Great Charter. By the eighteenth century, Sir Matthew Hale could write that martial law “in truth and reality is no law, but something indulged rather than allowed as a law.”

2.3 19th-Century Codifications

The nineteenth century turned an indulgence into a regime. The French loi sur l'état de siège of 1849, the United States' war-time orders of President Lincoln, and the colonial ordinances of the British Empire each attempted to give the suspension a written form, an authorising procedure, and a temporal limit. The codification effort was uneven; the practice, abundant.

3.1 Executive Proclamation

In nearly every modern constitution the initial act is the executive's. The President, Prime Minister, or sovereign issues a proclamation invoking enumerated grounds — insurrection, invasion, public calamity — and identifying the territory affected and the duration intended. The proclamation is the public moment; what precedes it is, almost always, a privileged consultation between the executive and the chiefs of staff.

3.2 Legislative Concurrence

Few constitutions allow an indefinite executive declaration. Most require a vote of confirmation by the legislature within a short window — forty-eight hours in the French Fifth Republic, seventy-two in many Latin American constitutions, a simple majority of the National Assembly in the Republic of Korea (Const. art. 77 ¶5). The legislative check is the principal civilian instrument for terminating an unjust declaration before its damage is done.

3.3 Judicial Review

Whether the courts may second-guess a proclamation is the deepest question in the law of emergency. The orthodoxy of the political-question doctrine cedes the matter to the political branches; the dissenting tradition, traceable from Milligan through the German Bundesverfassungsgericht to the Korean Constitutional Court's 1996 jurisprudence, insists that the proclamation, like every public act, is judiciable on its face.

4.1 United States: Ex parte Milligan

In 1864 a civilian, Lambdin P. Milligan, was tried by a military commission in Indiana for conspiracy. The Supreme Court, in 1866, vacated the sentence: where the civil courts are open, military tribunals have no jurisdiction over civilians. 71 U.S. 2 (1866) remains the lodestar of the American doctrine and the most-cited single decision in this entire encyclopedia.

4.2 France: État de siège

The French état de siège, codified in 1849 and surviving through five republics, transfers police powers to the military and ordinary jurisdictions to military courts in respect of offences against the security of the state. It is invoked by Council of Ministers decree and may not exceed twelve days without parliamentary extension (Const. 1958 art. 36).

4.3 Republic of Korea, 1972–1980

The Yushin period in Korea offers the textbook example of martial law deployed not against external enemy but against constitutional opposition. Park Chung-hee's Yushin proclamation of 17 October 1972 dissolved the National Assembly, suspended portions of the Constitution, and centralised authority. The 1980 declaration following his assassination bridged the brief Seoul Spring to the new junta of Chun Doo-hwan. The Korean Constitutional Court has, since 1996, declared the underlying proclamations unconstitutional nunc pro tunc.

4.4 Philippines, 1972–1981

Ferdinand Marcos's Proclamation No. 1081 of 21 September 1972 enacted nine years of authoritarian rule under the colour of constitutional emergency. The Filipino case is instructive for the gap between the textual sufficiency of the proclamation and the lived reality of its enforcement — a gap which the present volume insists must be measured, not assumed.

5.1 Suspension of Habeas Corpus

The writ of habeas corpus — the order requiring the body of the detainee to be produced before a court — is the procedural keystone of personal liberty. Its suspension is the most consequential single power available within a martial-law regime. The American Constitution permits suspension only “when in cases of rebellion or invasion the public safety may require it” (U.S. Const. art. I §9 cl.2); most modern constitutions echo the formulation.

5.2 Non-Derogable Rights

International human-rights law has, since 1966, sought to identify a core of rights from which no derogation is permitted even in time of public emergency. The list, in ICCPR art. 4 ¶2, includes the right to life, the prohibition of torture, the prohibition of slavery, the principle of non-retroactivity in criminal law, and the freedom of thought, conscience, and religion. Whatever the proclamation says, these the proclamation cannot reach.

5.3 Sunset Provisions

Every well-drafted emergency clause contains its own end. A sunset is a date, a renewal requirement, or an event upon whose occurrence the proclamation lapses. The sunset is the difference between an emergency and an exception; without one, an emergency tends, by the gravitational logic of administrative habit, to become permanent.