martial law

martial law, the supersession of ordinary legal process by military law, including courts martial, in times of war or rebellion. Originally based on the government's inherent right to repel attack, its evolution into an instrument of policy, adopted in conditions short of full‐scale military conflict, raised difficult constitutional issues.

Some 19th‐century Coercion Acts provided for trial by military courts. The provisions of the Defence of the Realm Acts (DORA) and the Restoration of Order in Ireland Act were also sometimes described as forms of martial law. However, martial law proper was introduced in Ireland on only three occasions during modern times: in March 1798, continuing until 1806, immediately after the rising of 1916, and from II December 1920, when it was proclaimed in Cos. Cork, Tipperary, Limerick, and Kerry, with Clare, Kilkenny, Waterford and Wexford being added from 4 January 1921. Its employment in 1916 is generally seen as contributing substantially to the growth of disaffection; the courts martial that ordered the execution of the rebel leaders were, however, held under DORA. Its restriction to eight counties in 1920–1, and the failure to give the army control of the police or immunity from scrutiny by the courts, greatly weakened its effectiveness, while at the same time betraying continued official confusion as to its nature. By contrast the proceedings of military courts during the Civil War, founded on a resolution of Dáil Éireann, and upheld by the civil courts on the grounds that a state of war existed, came much closer to the classical theory of martial law.

See also special courts.