Habeas Corpus

by

David Clark

• LAST REVIEWED: 23 April 2019
• LAST MODIFIED: 30 August 2016
• DOI: 10.1093/obo/9780199796953-0132

Introduction

This entry considers habeas corpus in common law jurisdictions (including mixed jurisdictions such as South Africa) and in international law. Habeas corpus also exists in Latin America, Spain, the Philippines, Japan, Cameroon, and Timor Leste. 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 21st 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 non state actors control parts of the State—think of the abduction and disappearance of 276 schoolgirls by Boko Haram in Nigeria in April 2014—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, 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.

General Overviews

Despite its fame and ancient roots, the literature is surprisingly thin and largely atheoretical. The first modern monograph in England was only published in 1976 and is now in its third edition. Farbey, et al. 2011, like most of the literature, describes the nature of the remedy and is written from a positivist perspective. There is very little theoretical writing in the subject unlike many areas of international law. This reflects the practical and procedural nature of habeas corpus which is, above all, a remedy rather than a theory though it has principled underpinnings in the importance attached to personal liberty as a key value in the legal systems in which it operates. The older American works such as Hurd 1972 (originally published in 1876) and Church 2003 (originally published in 1886) provide a very detailed account of the writ in both state and federal law as well as the origins of the remedy in the United States courts. Both these works preceded the impact of constitutional doctrine and the current legal procedures governing the writ in the United States, something that Hertz and Liebman 2011 sets out in great detail. More recent writing by Clark and McCoy 2000a, Clark and McCoy 2000b, and Costello 2006 explores the remedy in depth in jurisdictions outside England. These works situate the remedy in both the wider law of the states in question and in the relevant constitutional context. Costello 2006 does this both in the context of Irish history and in the constitutional and European context within which the remedy operates in Ireland noting significant differences between Irish law and the position inherited from England. Clark and McCoy 2000b shows that the remedy in many commonwealth countries is, in practice, influenced by the underlying political situation especially in states under emergency conditions. In Clark and McCoy 2000a, the arrival and use of the remedy in the Pacific commonwealth jurisdictions is laid out in detail including the early history, the current procedures, and the reform proposals concerning the writ. All of these works provide extensive bibliographical references to the literature.

• Church, William S. A Treatise on the Writ of Habeas Corpus (1886). Clark, NJ: Law Exchange, 2003.

  A major treatise from the 19th century reprinted because it provides detailed information on the operation of the writ during an important period of development in the United States.

• Clark, David, and Gerard McCoy. Habeas Corpus: Australia, New Zealand and the South Pacific. Sydney: Federation, 2000a.

  The only monograph on the jurisdictions of Australia, New Zealand, and the Pacific Commonwealth states where the writ operates, now somewhat overtaken by the passage of New Zealand’s Habeas Corpus Act 2001 (cited under Intermediate Review) and the considerable body of case law that has emerged since.

• Clark, David, and Gerard McCoy. The Most Fundamental Legal Right: Habeas Corpus in the Commonwealth. Oxford: Clarendon, 2000b.

  DOI: 10.1093/acprof:oso/9780198265849.001.0001

  A detailed study of commonwealth law, both to demonstrate the reach of the remedy and to identify some of its special features not found in England, Canada, Australia, and New Zealand. These include the limited operation of the remedy during martial law and emergencies and in relation to detentions by the legislature.

• Costello, Kevin. The Law of Habeas Corpus in Ireland. Dublin: Four Courts, 2006.

  This is a very thorough and detailed account of the law in Ireland as well as a scholarly account of the emergence of habeas corpus in Irish legal history. The linkages with the Irish constitutional provisions and the writ are carefully treated to demonstrate the ways in which a constitutional provision has altered the traditional limits of the common law version of habeas corpus.

• Farbey, Judith, R. J. Sharpe, and Simon Atrill. The Law of Habeas Corpus. 3d ed. Oxford: Oxford University Press, 2011.

  DOI: 10.1093/acprof:oso/9780199248247.001.0001

  Now in its third edition this book is the single best and most often cited work on the general law of habeas corpus. Although it concentrates on English and Canadian law, it includes extensive references to other commonwealth jurisdictions. The book is critical of much of the case law with a strong historical understanding of the remedy but is not particularly aware of the limits of the writ in non-Western contexts.

• Hertz, Randy, and James S. Liebman. Federal Habeas Corpus Practice and Procedure. 6th ed. 2 vols. New Providence, NJ: LexisNexis, 2011.

  An extremely thorough account of the federal habeas corpus procedure in the United States designed for practitioners. Given the linkages between the federal jurisdiction and state courts this treatise throws light on the relationship between the two jurisdictions and the impact of the US constitutional system on the reach of the writ.

• Hurd, Rollin Carlos. A Treatise on the Rights of Personal Liberty and on the Writ of Habeas Corpus. 2d ed. rev. New York: De Capo, 1972.

  As with Church 2003, a major institutional work that sets out in detail the American law of the period designed for practicing lawyers. Originally published in 1876.