5. The Subject as a Civic Ghost: Law, Dominion, and Empire in the Chagos Litigation

This essay examines the judicial dismissals of the Chagossians’ attempts to challenge their forced exile on constitutional principles and on human rights grounds. Although the decisions present a formalist justification, the law did not require the decision that the courts reached. The decisions represent, instead, another step in an ongoing shift in the way relations between individuals and states are conceptualised. At the heart of this shift lies the representation of the state as pursuing irreducibly complex purposes and, hence, of being infinitely vulnerable to disruption by the actions of individuals. The common good of the polity, in such a conception, is understood as requiring and justifying the subordination of individuals and groups to those systemic interests. The conferral of rights accordingly becomes a privilege of citizenship, to be withheld at the state’s discretion from particular classes of its subjects. In the Chagos litigation, these trends operated in a particularly extreme way, transforming the Chagossians into ‘civic ghosts’: subjects of the law deprived of key ingredients of civic personality. The result of the judicial acceptance of such a status, I argue, is the banalisation of both constitutional law and human rights law, and their withdrawal from a central component of the role they claim to occupy in the post-war constitutional state.