Habeas Corpus

by

David Clark

• LAST REVIEWED: 25 September 2023
• LAST MODIFIED: 25 September 2023
• DOI: 10.1093/obo/9780199796953-0132

Introduction

This article considers habeas corpus in common law jurisdictions (including mixed jurisdictions such as Cameroon and in international law. Habeas corpus also exists in Latin America, Spain, the Philippines, and east Asian states such as Japan, Taiwan, and Korea, as well as in Lusophone countries. The remedy is rooted in the municipal law of the states that may award it, and this article concentrates on that body of law. But domestic law does not operate in isolation, and there are instances where the remedy has been sought in and criticized by international tribunals. The subject has experienced a resurgence in the twenty-first century as the result of three stimuli: the detentions in aftermath of the attacks on the United States in 2001; the entry into force of the United Kingdom’s Human Rights Act of 1998 in 2000, which brought European law to bear on the subject; and the rise of refugee and immigration cases worldwide. The efficacy of the writ of habeas corpus presents a paradox. In those states with a developed legal order, where the executive generally adheres to the rule of law, there are likely to be fewer illegal detentions. These are also the legal systems in which the writ is most often obeyed. In contrast, legal systems that are poorly developed and riven by internal disorder, where the executive government acts with impunity, and where nonstate actors control parts of the state—think of the abduction and disappearance of 276 schoolgirls by Boko Haram in Nigeria in April 2014 or the takeover of Ukrainian territory in 2014 and 2022 by Russia—are less able to employ the remedy in an effective manner. The pen and the law book are not always mightier than the kalashnikov or the tank. Yet it is in such places that illegal detentions are more common and where the need for an effective remedy is greatest. These are not matters that would normally trouble a lawyer in Sydney, New York, Madrid, or London, but it means that effective protection of personal liberty is not merely dependent upon a procedure such as habeas corpus but on wider features of the legal and political order. Even where the remedy appears to be the same in comparable jurisdictions it should not be assumed that this is the case. Comparative studies have shown that the operation of the remedy is linked to features of the wider legal system, in particular in most states where the remedy enjoys constitutional status, the courts have widened the remedy far beyond its original or contemporary English characteristics.

Definition

Habeas corpus is Latin for “to have the body” and is defined in standard reference works as “a writ employed to bring a person before a court, most frequently to ensure that the person’s imprisonment or detention is not illegal” (Garner 2019, p. 854); Diccionario del español panhispanico juridico online. In practice habeas corpus in anglophone jurisdictions refers to the ad subjiciendum form of the writ only (Habeas Corpus Act 2001(NZ) s 18. There were once, in addition, eight other forms of the writ that brought a person before a court for other purposes, such as to give evidence or to serve on a jury: Bouvier 1855 (pp. 575–576). Most jurisdictions refer to habeas or habeas corpus rather than to the compendious writ of habeas corpus ad subjiciendum. In Lusophone states, such as Portugal, the definitions of habeas corpus refer explicitly to a constitutional right and to a wider form of protection (Glossário OA / termos jurídicos) than found in anglophone jurisdictions. This will be dealt with in jurisdictions in Lusophone States and Hispanophone States. In this entry no reference will be made to habeas data, a form that operates in Latin American jurisdictions and the Philippines, and which serves as a means to secure and protect data belonging to a person.

• Bouvier, John. Law Dictionary Adapted to the Constitution and Laws of the United States. 5th ed. Philadelphia: Published for the Author, 1855.

  Describes most of the other forms of habeas corpus, now supplanted by other procedures.

• Garner, Bryan. Black’s Law Dictionary. 11th ed. St. Paul, MN: Thomson Reuters, 2019.

  A definition of habeas corpus in the leading English-language legal dictionary.

• Habeas Corpus. In Diccionario panhispánico del español juridico. Madrid: Real Academica Espanola, 2022.

  Citing a definition in the text of the Constitución de la República del Ecuador (Ultima modificación: 25-ene.-2021), Art. 89.

• Habeas Corpus Act 2001(NZ) s 18.

  The act abolished all other forms of habeas corpus retaining the ad subjiciendum form only.

• Habeas Corpus. Glossário OA / termos jurídicos. Lisbon, Portugal: Ordem dos Avogados, 2022.

  A definition of habeas corpus that includes the right to travel and embraces threats to liberty.