We call habeas corpus the Great Writ of Liberty. But it was actually a writ of power. In a work based on an unprecedented study of thousands of cases across more than five hundred years, Paul Halliday provides a sweeping revisionist account of the world's most revered legal device.
In the decades around 1600, English judges used ideas about royal power to empower themselves to protect the king's subjects. The key was not the prisoner's "right" to "liberty"--these are modern idioms--but the possible wrongs committed by a jailer or anyone who ordered a prisoner detained. This focus on wrongs gave the writ the force necessary to protect ideas about rights as they developed outside of law. This judicial power carried the writ across the world, from Quebec to Bengal. Paradoxically, the representative impulse, most often expressed through legislative action, did more to undermine the writ than anything else. And the need to control imperial subjects would increasingly constrain judges. The imperial experience is thus crucial for making sense of the broader sweep of the writ's history and of English law.
Halliday's work informed the 2008 U.S. Supreme Court ruling in Boumediene v. Bush on prisoners in the Guant namo detention camps. His eagerly anticipated book is certain to be acclaimed the definitive history of habeas corpus.
Paul D. Halliday is Professor of History at the University of Virginia.
What People are Saying About This
Christopher W. Brooks
A remarkable work, based on truly heroic research. Halliday explains why liberty in the English sense of the term could only be understood as liberty under the law, and he offers a robust revision of the whiggish view that has traditionally seen the rise of habeas and the rise of parliamentary democracy as part of the same process in the development of liberty. He provides a particularly illuminating account of how the older common law system of largely judge-made law actually worked. Ambitious, convincing, and penetrating, Habeas Corpus will surely stand as the authoritative account.
Christopher W. Brooks, Durham University
Halliday's magisterial revisionist history is as impressive as it is indispensable.
David Armitage, author of The Declaration of Independence: A Global History
A book that every historian of English government and Anglo-American law should read, this will be the starting point for anyone interested in the origins and interpretation of habeas corpus. It rests on deep, original research that is presented with subtlety and sophistication. Habeas Corpus will be an instant classic.
Daniel Hulsebosch, New York University Law School
Mary Sarah Bilder
With grace, elegance, and insight, Halliday has taken a writ and found an empire. He has not only written a compelling account of habeas corpus, but provided an imaginatively conceived legal history that offers a new model for how to write meaningfully about procedures. This important book is a spectacular achievement.
Mary Sarah Bilder, Boston College Law School
This book is superb. In a tour de force of archival research, Halliday singlehandedly reshapes our view of the historical scope and characteristics of habeas corpus. He demonstrates that the writ must be understood as a feature of the royal prerogative, allowing the king's courts to demand an explanation for the imprisonment of the king's subjects, whether citizen or alien. There is little doubt that this will become the standard account of the Great Writ. James Oldham, Georgetown University Law Center
Cynthia B. Herrup
Halliday changes the way that we understand both habeas corpus and the power of legal processes more generally. He shows us how kingship helped to shape the writ, how the writ helped to shape the empire, and how historical circumstances helped to shape all three. Based on exhaustive research, this book breaks new ground and suggests new ways of thinking about both rights and liberties.
Cynthia B. Herrup, University of Southern California
In clear, at times compelling, prose Halliday offers an outstanding work of historical and legal scholarship. I am unaware of any treatment of habeas corpus which covers so broad a canvas or rests upon such massive archival foundations. Halliday has convincingly demolished the traditional myth of habeas corpus. One might even say that the conceptual sophistication, evidential weight, and span of this book point towards a new way of doing constitutional history. Wilfrid Prest, University of Adelaide
This is a book of astonishing forensic brilliance that transforms our understanding of where the liberties of the Anglophone world came from and how they can still be deployed to stop overmighty rulers in their tracks when they abuse their democratic mandate. I have not read a more important history book for many years.
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