Habeas Corpus: from England to Empire

2011 ◽  
Vol 7 (2) ◽  
pp. 257-269
Author(s):  
Michael Lobban
Keyword(s):  
Seventeenth Century ◽  
Common Law ◽  
Fundamental Rights ◽  
Habeas Corpus ◽  
Personal Liberty ◽  
General Terms ◽  
Magna Carta ◽  
The Common ◽  
Iconic Status ◽  
The Right

The ‘Great Writ’ of habeas corpus has long had an iconic status as the ‘writ of liberty’ which ensured that no person could be detained in prison without being put to trial by a jury of his peers. According to the traditional version, popularised by Whiggish constitutional writers from the late seventeenth century onwards, the English constitution as embodied in the common law had, since time immemorial, striven to protect the fundamental rights of Englishmen and women, which included the right to personal liberty. The common law had supplied the writ of habeas corpus, which secured the provision of Magna Carta, that no freeman be imprisoned save by the judgment of a jury of his peers. In the course of the seventeenth century, the Whig version ran, kings with an absolutist bent sought to undermine ancient liberties, by claiming prerogative powers to imprison without trial, and by appointing supine judges who would not protect people's liberties. It took the triumph of Parliament to restore and perfect them. For William Blackstone, one of the key statutes which secured ‘the complete restitution of English liberty’ was the Habeas Corpus Act of 1679, ‘that second magna carta’. As Blackstone put it: ‘Magna carta only, in general terms, declared, that no man shall be imprisoned contrary to law: the habeas corpus act points him out effectual means, as well to release himself, though committed even by the king in council, as to punish all those who shall thus unconstitutionally misuse him.’

1. The English origins

2021 ◽  
pp. 7-17
Author(s):  
Amanda L. Tyler
Keyword(s):  
Seventeenth Century ◽  
Common Law ◽  
Habeas Corpus ◽  
Individual Liberty ◽  
Simple Idea ◽  
Magna Carta ◽  
The Common

This chapter traces the origins of the common law writ of habeas corpus, finding that it was born out of a simple idea: the need to serve the king and demand justification for the detention of one of his subjects. It was not so much for those courts to question the king himself, for he could do no wrong. This chapter details how all of this changed over the course of the seventeenth century, and specifically the important role that the English Habeas Corpus Act of 1679 played in this shift. As is also explored, Parliament’s objectives in passing the Habeas Corpus Act sprang from its intention to expand its power at the expense of the king much more so than a desire to protect individual liberty. But in time, Blackstone and others came to praise the Act as a “second Magna Carta” for curtailing the detention of so-called “state prisoners.”

Protecting Quasi-Possession of Electricity Supply with the Mandament van Spolie – Has the Supreme Court of Appeal Switched Off this Possibility? [A Discussion of Eskom Holdings Soc Ltd v Masinda 2019 5 SA 386 (SCA)]

2021 ◽  
Vol 2021 (2) ◽  
pp. 215-233
Author(s):  
EJ Marais
Keyword(s):  
Supreme Court ◽  
Common Law ◽  
Fundamental Rights ◽  
Electricity Supply ◽  
Constitutional Rights ◽  
Single System ◽  
The Supreme Court ◽  
The Common ◽  
The Right ◽  
Court Of Appeal

In Eskom Holdings SOC Ltd v Masinda 2019 5 SA 386 (SCA) (“Masinda”), the Supreme Court of Appeal had to decide whether the mandament van spolie is available for restoring quasi-possession of electricity supply. The respondent used the mentioned supply, which was sourced in contract, at her home. The court ruled that the spoliation remedy does not protect the quasi-possession of rights sourced in contract. For its quasi-possession to enjoy possessory protection, the right must be in the nature of a servitude, be registered or flow from legislation. This emphasis on the source of the right is problematic for two reasons. First, it contradicts certain common-law authorities which reveal that the quasi-possession of electricity supply sourced in contract does, in fact, enjoy protection under the spoliation remedy. This applies as long as the supply is a gebruiksreg (use right) and the spoliatus performs physical acts associated with the right on immovable property. Secondly, (over)emphasising the source of the right potentially undermines various fundamental rights. When the common law is open to several possible interpretations, as seems to be the case with quasi-possession, the supremacy of the Constitution and the single-system-of-law principle require that courts choose the interpretation that upholds (rather than impairs) constitutional rights. In the Masinda case, the court unfortunately opted for an understanding of quasi-possession which seems to undermine the Constitution. For these reasons, the decision is an unwelcome development.

The Conciliar Courts

2019 ◽  
pp. 126-134
Author(s):  
John Baker
Keyword(s):  
Due Process ◽  
Common Law ◽  
Habeas Corpus ◽  
Life And Death ◽  
The North ◽  
Magna Carta ◽  
The Common ◽  
The Law ◽  
Star Chamber

This chapter examines the courts associated with the king’s council and the residuary prerogative jurisdiction of the Crown. Such courts were not supposed to meddle with the law of property, or with matters of life and death, since they did not follow the ‘due process’ required by Magna Carta and its progeny, but they nevertheless developed extensive jurisdictions alongside the courts of law. Their procedure was close to that of the Chancery. The principal conciliar courts were the Star Chamber and the Court of Requests, at Westminster, but there were provincial counterparts in the Marches of Wales and in the North. The extraterritorial jurisdictions of the admiralty and the constable and marshal were similarly derived from the royal prerogative and operated outside the common law. The King’s Bench watched all these jurisdictions carefully and checked excesses by means of prohibition and habeas corpus.

Common Law Constitutionalism

2018 ◽  
Author(s):  
William E. Nelson
Keyword(s):  
Eighteenth Century ◽  
Seventeenth Century ◽  
Common Law ◽  
Legal Profession ◽  
Legal Institutions ◽  
Law System ◽  
The Common ◽  
Common Law System

This chapter shows how common law pleading, the use of common law vocabulary, and substantive common law rules lay at the foundation of every colony’s law by the middle of the eighteenth century. There is some explanation of how this common law system functioned in practice. The chapter then discusses why colonials looked upon the common law as a repository of liberty. It also discusses in detail the development of the legal profession individually in each of the thirteen colonies. Finally, the chapter ends with a discussion of the role of legislation. It shows that, although legislation had played an important role in the development of law and legal institutions in the seventeenth century, eighteenth-century Americans were suspicious of legislation, with the result that the output of pre-Revolutionary legislatures was minimal.

Liberating Malawi's Administrative Justice Jurisprudence from Its Common Law Shackles

2011 ◽  
Vol 55 (1) ◽  
pp. 105-127 ◽  
Author(s):  
Danwood Mzikenge Chirwa
Keyword(s):  
Judicial Review ◽  
Common Law ◽  
Administrative Law ◽  
The Common ◽  
The Right ◽  
Administrative Justice

AbstractThe 1994 Malawian Constitution is unique in that it, among other things, recognizes administrative justice as a fundamental right and articulates the notion of constitutional supremacy. This right and the idea of constitutional supremacy have important implications for Malawi's administrative law, which was hitherto based on the common law inherited from Britain. This article highlights the difficulties that Malawian courts have faced in reconciling the right to administrative justice as protected under the new constitution with the common law. In doing so, it offers some insights into what the constitutionalization of administrative justice means for Malawian administrative law. It is argued that the constitution has altered the basis and grounds for judicial review so fundamentally that the Malawian legal system's marriage to the English common law can be regarded as having irretrievably broken down as far as administrative law is concerned.

Fundamental Rights in the Indian Constitution: Could it include ‘Right to Sanitation’?

2016 ◽  
Vol 5 (6) ◽  
pp. 291-296
Author(s):  
Anil Kumar Mohapatra
Keyword(s):  
Fundamental Rights ◽  
Safe Drinking Water ◽  
Right To Life ◽  
Personal Liberty ◽  
Sanitation Facility ◽  
Supreme Court Of India ◽  
The Supreme Court ◽  
The World ◽  
The Government ◽  
The Right

Long before India gained independence, M.K. Gandhi remarked that the availability of Sanitation facility is more important than gaining Independence for an Indian. Of late, it is now increasingly felt and realized in India that facilities like toilet, safe drinking water, accompanied by good hygienic conditions are fundamental necessities of a person. These are prerequisites of social and economic justice and genuine development. The Supreme Court of India in one judgement held that Right to life and personal liberty, should include right to privacy and human dignity etc. Despite that it has been an admitted shame that India still has the largest number of people defecating in open in the world. There are reported incidences of rape and murder of women in many places in India as women rely on open field for attending to the call of nature in morning and evening. The attempts like Community toi-let system, pay-and-use toilet system and schemes like ‘Mo Swabhiman -Mo Paikhana’ have been found to be less effective. In this connection the ‘Clean India Mission’ campaign launched by the Government of India in 2014 has been regarded as a right approach in that direction. Government of the day is actively considering the demand to convert the Right to Sanitation from a developmental right to a fundamental right. It would make the state more accountable and responsible. Against this background, the paper argues that spending huge money on that would yield good dividend in future for the country.

Professional secrecy and legal professional privilege

2018 ◽  
Vol 25 (2) ◽  
pp. 188-207 ◽  
Author(s):  
Jorg Sladič
Keyword(s):  
Human Rights ◽  
The Netherlands ◽  
Family Life ◽  
Common Law ◽  
Civil Law ◽  
Fundamental Rights ◽  
The Other ◽  
European Convention ◽  
Legal Professional ◽  
The Right

Legal privilege and professional secrecy of attorneys relate to the right to a fair trial (Article 6 European Convention on Human Rights (ECHR)) as well as to the right to respect for private and family life (Article 8 ECHR). The reason for protecting the lawyer via fundamental rights is the protection of fundamental rights of the lawyer’s clients. All legal orders apply legal privileges and professional secrecy; however, the contents of such are not identical. Traditionally there is an important difference between common and civil law. The professional secrecy of an attorney in civil law jurisdictions is his right and at the same time his obligation based on his membership of the Bar (that is his legal profession). In common law legal privilege comprises the contents of documents issued by an attorney to the client. Professional secrecy of attorneys in civil law jurisdictions applies solely to independent lawyers; in-house lawyers are usually not allowed to benefit from rules on professional secrecy (exceptions in the Netherlands and Belgium). On the other hand, common law jurisdictions apply legal professional privilege, recognized also to in-house lawyers. Slovenian law follows the traditional civil law concept of professional secrecy and sets a limited privilege to in-house lawyers. The article then discusses Slovenian law of civil procedure and compares the position of professional secrecy in lawsuits before State’s courts and in arbitration.

The Right to Healthcare in the Common European Asylum System

2018 ◽  
Vol 20 (2) ◽  
pp. 135-156
Author(s):  
Marco Inglese
Keyword(s):  
European Union ◽  
Fundamental Rights ◽  
European Convention ◽  
Undocumented Migrants ◽  
The European Union ◽  
Common European Asylum System ◽  
The Common ◽  
Interpretative Approach ◽  
The Right

Abstract This article seeks to ascertain the role of healthcare in the Common European Asylum System (CEAS). The article is structured as follows. First, it outlines the international conceptualisation of healthcare in the International Covenant of Economic, Social and Cultural Rights (ICESCR) and the European Social Charter (ESC) before delving into the European Convention on Human Rights (ECHR). Second, focusing on the European Union (EU), it analyses the role of Article 35 of the Charter of Fundamental Rights of the European Union (the Charter) in order to verify its impact on the development of the CEAS. Third, and in conclusion, it will argue that the identification of the role of healthcare in the CEAS should be understood in light of the Charter’s scope of application. This interpretative approach will be beneficial for asylum seekers and undocumented migrants, as well as for the Member States (MSs).

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