Habeas Corpus: A Very Short Introduction

2021 ◽  
Author(s):  
Amanda L. Tyler
Keyword(s):  
World War Ii ◽  
Jury Trial ◽  
Habeas Corpus ◽  
Legal Tradition ◽  
Short Introduction ◽  
Continental Congress ◽  
Personal Liberty ◽  
Anglo American ◽  
The Right

For nearly eight hundred years, the writ of habeas corpus has limited the executive in the Anglo-American legal tradition from imprisoning persons with impunity. Writing in the eighteenth century, William Blackstone declared the writ a “bulwark” of personal liberty. Across the Atlantic, in the lead up to the American Revolution, the Continental Congress declared that the habeas privilege and the right to jury trial were among the most important rights in a free society. This Very Short Introduction chronicles the storied writ of habeas corpus and how it spread from England throughout the British Empire and beyond, witnessing its use today all around the world. Beginning with the English origins of the writ, the book traces its historical development as a part of the common law and as grounded in the English Habeas Corpus Act of 1679, a statute that dramatically limited the executive's power to detain and that Blackstone called no less than a “second Magna Carta.” The book then takes the story forward to explore how the writ has functioned in the centuries since, including its controversial suspension by President Abraham Lincoln during the Civil War. It also explores the role of habeas corpus during World War II and the War on Terror. The story told in these pages reveals the immense challenges that the habeas privilege faces today and suggests that in confronting them, we would do well to remember how the habeas privilege brought even the king of England to his knees before the law.

Habeas Corpus in Wartime

2017 ◽  
Author(s):  
Amanda L. Tyler
Keyword(s):  
United States ◽  
The United States ◽  
United States Constitution ◽  
Habeas Corpus ◽  
Legal Tradition ◽  
Early American ◽  
Before And After ◽  
Anglo American ◽  
Historical Resources

Habeas Corpus in Wartime unearths and presents a comprehensive account of the legal and political history of habeas corpus in wartime in the Anglo-American legal tradition. The book begins by tracing the origins of the habeas privilege in English law, giving special attention to the English Habeas Corpus Act of 1679, which limited the scope of executive detention and used the machinery of the English courts to enforce its terms. It also explores the circumstances that led Parliament to invent the concept of suspension as a tool for setting aside the protections of the Habeas Corpus Act in wartime. Turning to the United States, the book highlights how the English suspension framework greatly influenced the development of early American habeas law before and after the American Revolution and during the Founding period, when the United States Constitution enshrined a habeas privilege in its Suspension Clause. The book then chronicles the story of the habeas privilege and suspension over the course of American history, giving special attention to the Civil War period. The final chapters explore how the challenges posed by modern warfare during the twentieth and twenty-first centuries have placed great strain on the previously well-settled understanding of the role of the habeas privilege and suspension in American constitutional law. Throughout, the book draws upon a wealth of original and heretofore untapped historical resources to shed light on the purpose and role of the Suspension Clause in the United States Constitution, revealing all along that many of the questions that arise today regarding the scope of executive power to arrest and detain in wartime are not new ones.

The Origins of Human Rights in Global Health

2018 ◽  
Author(s):  
Lawrence O. Gostin ◽  
Benjamin Mason Meier
Keyword(s):  
Public Health ◽  
Human Rights ◽  
World War Ii ◽  
Global Health ◽  
International Law ◽  
Right To Health ◽  
Right To Health Care ◽  
Global Standards ◽  
The Right

This chapter introduces the foundational importance of human rights for global health, providing a theoretical basis for the edited volume by laying out the role of human rights under international law as a normative basis for public health. By addressing public health harms as human rights violations, international law has offered global standards by which to frame government responsibilities and evaluate health practices, providing legal accountability in global health policy. The authors trace the historical foundations for understanding the development of human rights and the role of human rights in protecting and promoting health since the end of World War II and the birth of the United Nations. Examining the development of human rights under international law, the authors introduce the right to health as an encompassing right to health care and underlying determinants of health, exploring this right alongside other “health-related human rights.”

6 Extraterritorial Application of U.S. Law

2020 ◽  
Author(s):  
Bradley Curtis A
Keyword(s):  
Due Process ◽  
The United States ◽  
Criminal Prosecution ◽  
Constitutional Rights ◽  
Habeas Corpus ◽  
State Laws ◽  
Guantanamo Bay ◽  
The Supreme Court ◽  
The Right

This chapter considers the application of federal and state law to conduct that takes place outside the territory of the United States. It begins by discussing the territorial scope of U.S. constitutional rights. Special consideration is given to the extraterritorial application of the right of habeas corpus in light of the Supreme Court’s 2008 decision in Boumediene v. Bush, concerning the habeas corpus rights of detainees at the Guantanamo Bay naval base in Cuba. The chapter then discusses the “presumption against extraterritoriality” that the Supreme Court applies when interpreting federal statutes. For situations in which the presumption is overcome or is inapplicable, the chapter explains how customary international law principles relating to prescriptive jurisdiction can be relevant in U.S. litigation through application of the Charming Betsy canon of construction. In addition, the chapter discusses the role of “universal jurisdiction” in U.S. litigation and criminal prosecution. Possible constitutional limitations on the extraterritorial application of both federal statutes and state laws, based on due process and other considerations, are also considered.

scholarly journals The “Right to Wage War” against Empire: Anticolonialism and the Challenge to International Law in the Indian National Army Trial of 1945

2019 ◽  
Vol 44 (2) ◽  
pp. 420-443
Author(s):  
Mithi Mukherjee
Keyword(s):  
World War Ii ◽  
International Law ◽  
World War ◽  
British Colonial ◽  
Indian National Army ◽  
Imperial Japan ◽  
Radical Claim ◽  
The Right ◽  
Colonial Government

This Article treats the Indian National Army Trial of 1945 as a key moment in the elaboration of an anticolonial critique of international law in India. The trial was actually a court-martial of three Indian officers by the British colonial government on charges of high treason for defecting from the British Indian Army, joining up with Indian National Army forces in Singapore, and waging war in alliance with Imperial Japan against the British. In this trial, the defense made the radical claim that anticolonial wars fought in Asia against European powers were legitimate and just and should be recognized as such under international law. The aim of this Article is to draw attention to the understudied role of anticolonial movements in challenging the premises of international law in the aftermath of World War II.

scholarly journals Labor Migrants from the CIS Countries to Russia: Scope, Aspects, Problems

2020 ◽  
pp. 185-193
Author(s):  
M. Khokhlova
Keyword(s):  
World War Ii ◽  
Social Contexts ◽  
World War ◽  
Host Countries ◽  
National Interests ◽  
Melting Pot ◽  
Labor Migrants ◽  
Cis Countries ◽  
The Right

The decline of the role of a national state after World War II, which went against the conservative idea, inseparable from the awareness of national interests and the right of citizens to control the size and composition of the population of their own country, influenced approaches to the problem of migration. The movement of migrant flows from the CIS countries to the Russian Federation fits into the objective migration process taking place in the world, which is characterized by movement from the periphery to the center. Russia continues to be the center and attracts residents of the periphery of the once unified state, its per capita GDP figures continuing to differ favorably from those recorded in the former Soviet republics. The process inevitably leads to problems of adaptation of migrants in a receiving country. The article examines the evolution of attitude towards the problem of inclusion of migrants into society of the host countries from the so-called “melting pot”, meaning their complete assimilation, to transnationalism that allows people to have two or more cultural identities and be involved in multiple social contexts. The economic motivation of employers preferring to hire immigrants from the CIS countries, who are more “competitive” in comparison with domestic specialists claiming decent working conditions and pay, often prevails.

Introduction

2021 ◽  
pp. 1-6
Author(s):  
Amanda L. Tyler
Keyword(s):  
United States ◽  
Great Britain ◽  
Common Law ◽  
The United States ◽  
Habeas Corpus ◽  
American Law ◽  
History Of ◽  
The Common ◽  
Anglo American

The Introduction provides an overview of the history of the writ of habeas corpus and an overview of the book, which tells the story of what is sometimes known as “the Great Writ” as it has unfolded in Anglo-American law. The primary jurisdictions explored are Great Britain and the United States, yet many aspects of this story will ring familiar to those in other countries with a robust habeas tradition. The book chronicles the longstanding role of the common law writ of habeas corpus as a vehicle for reviewing detentions for conformity with underlying law, as well as the profound influence of the English Habeas Corpus Act of 1679 on Anglo-American law. The Introduction highlights how the writ has at times failed to live up to its glorification by Blackstone and others, while noting that at other times it has proven invaluable to protection of liberty, including as a vehicle for freeing slaves and persons confined solely based on a King’s whim.

8. World War II and the demise of the Great Writ

2021 ◽  
pp. 72-91
Author(s):  
Amanda L. Tyler
Keyword(s):  
World War Ii ◽  
Great Britain ◽  
Mass Incarceration ◽  
Japanese Americans ◽  
Habeas Corpus ◽  
World War ◽  
Winston Churchill ◽  
High Courts ◽  
The Us

This chapter explores the role of habeas corpus during World War II in the US and Great Britain. On the American side, the chapter details how suspension ruled in the Hawaiian Territory but the mass incarceration of Japanese Americans on the mainland followed in the absence of a suspension under Executive Order 9066. As the chapter details, this happened even though lawyers counselled President Franklin D. Roosevelt that doing so would violate the Suspension Clause. The chapter continues by contrasting the experience in Britain, where Prime Minister Winston Churchill led the push to retreat from its citizen detention program under Regulation 18B and restore a robust habeas privilege. The chapter also compares habeas decisions rendered by the high courts in both countries while asking larger questions about what can be learned from these events.

European Influences on the Pretrial Defense Role

2020 ◽  
pp. 175-202
Author(s):  
Jacqueline S. Hodgson
Keyword(s):  
Role Expectations ◽  
Court Decisions ◽  
Legal Tradition ◽  
Criminal Defense ◽  
Judicial Investigation ◽  
Police Detention ◽  
Procedural Values ◽  
And Shifts ◽  
The Right

This chapter examines the changing ways in which the role of the criminal defense lawyer is structured and understood within different procedural traditions, and the challenges posed to individual legal cultures and practices by the growing influence of the ECtHR and the EU. It focuses on the earliest stages of the pretrial defense role, in part because of the determinative importance for the case of the initial police detention and questioning of the suspect, but also because this is where some of the most radical challenges to procedural values and shifts in role expectations have taken place, especially within inquisitorial-type procedures whose legal tradition centers on a model of judicial investigation rather than party-based argument. Pan-European measures and court decisions have sought to cut through procedural differences, focusing instead on effective defense as a fundamental part of the right to a fair trial and an essential component of the privilege against self-incrimination.

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