Chapter

<i>Myth and Reality</i>

DAVID CLARK and GERARD McCOY

in The Most Fundamental Legal Right

Published in print April 2000 | ISBN: 9780198265849
Published online January 2010 | e-ISBN: 9780191715280 | DOI: http://dx.doi.org/10.1093/acprof:oso/9780198265849.003.0002
Myth and Reality

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If laws authorising detentions permit what would otherwise be arbitrary detentions, then the writ of habeas corpus is rendered ineffective. In some legal systems these powers are very wide (for example, laws on martial law or emergencies) and these laws authorise what would otherwise be arbitrary detentions. Once such laws are in place the writ may be available but an application for habeas corpus is not likely to succeed unless the authorities make some legal mistake in executing the laws. It becomes important therefore to consider the character of the laws and in particular whether those laws provide sweeping or restricted powers of detention by the Executive. This chapter looks at the myths and realities about habeas corpus, the views of Sir Edward Coke and William Blackstone, claims made in England about the scope of the writ, and experience of British colonies in North America with the writ. Oppressive laws in developed Commonwealth States are discussed, focusing on the case of Australian aborigines, along with immigration laws and prevention of terrorism in England.

Keywords: England; habeas corpus; writ; detention; Edward Coke; William Blackstone; Australian aborigines; immigration laws; colonies

Chapter.  16816 words. 

Subjects: Human Rights and Immigration

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