This chapter seeks to demonstrate, among other things, that these dangers to personal liberty far outweigh the threats to human safety posed by serious ‘terrorist’ threats. The reader will acquire an appreciation of the obligation of states to protect their citizens from terrorism, including the debate as to whether terrorists possess human rights obligations. We shall then proceed to examine the most pertinent human rights violations in counter-terrorist operations. These include the application of the principle of legality to terrorist legislation, the permissibility of relevant derogations, the right to life and the practice of targeted killings, the various contours of unlawful detention against terrorist suspects, torture and ill-treatment in order to gather intelligence information and promote confessions and finally the practice of abductions, unlawful extraditions and illegal rendition. To be sure, counter-terrorist operations have been found to infringe a range of other civil and political rights, such as the freedom of expression and the right to a fair trial.

This volume, part of the Feminist Judgment Series, shows how feminist legal theory along with critical race theory and intersectional modes of critique might transform immigration law. Here, a diverse collection of scholars and lawyers bring critical feminist, race and intersectional insights to Supreme Court opinions that deal with the source of the power to regulate immigration, state and local regulation of immigration, citizenship law, racial discrimination, employment law, access to public education, the rights of criminal defendants, the detention of noncitizens, and more. Feminist reasoning values the perspectives of outsiders, exposes the deep-rooted bias in the legal opinions of courts, and illuminates the effects of ostensibly neutral policies that create and maintain oppression and hierarchy. One by one, the chapters in this book reimagine the norms that drive immigration policies and practices. In place of discrimination and subordination, the authors here demand welcome and equality. Where current law omits the voice and stories of noncitizens, the authors here center their lives and experiences. Collectively, they reveal how a feminist vision of immigration law could center a commitment to equality and justice and foster a country where diverse newcomers readily flourish with dignity.

Among the first historical writers to reflect on the long sixteenth century (1485–1603), Sir Francis Bacon marvelled at the dynastic fortunes of the Tudor monarchs. Henry VII had ridden from distant exile to win his throne at Bosworth Field (1485) yet his son Henry VIII was a king ‘absolute in the sovereignty’. Then came the reigns of ‘a king in minority; of a queen married to a foreigner; and lastly of a queen that hath governed without the help either of a marriage, or of any mighty man of her blood’.1 These circumstances – a bloody usurpation, the rule of a minor and then by females – seemed perilous to contemporary observers. Contested successions and vulnerable rulers had led to the Wars of the Roses (1455–1485). Even the death of the childless Elizabeth I raised fears about civil war. Consequently, James VI and I’s peaceful accession to the English throne in 1603 signalled a remarkable achievement. After the tumults of the fifteenth century the Tudors had successfully defended their dynastic claims and reconstituted royal authority.

New scientific developments, addressed throughout this book, which challenge the SBS hypothesis present challenges for courts that relied upon the outdated and unchallenged hypothesis to convict caregivers of child abuse. The law is notoriously slow to respond to scientific advances, and its strong fealty to finality makes reopening old convictions, even those that are dependent on flawed science, procedurally difficult. This chapter addresses the challenges posed for courts by shifting SBS science and analyses the bases, and slowly developing movement to reopen old SBS convictions based upon outdated and flawed science.

This chapter discusses the right to liberty and the principle of habeas corpus as protected by the European Convention on Human Rights, other Council of Europe instruments, in EU law and in international instruments. Attention is paid to both the grounds for legitimate detention and to procedural guarantees. In the final section, a short comparison between the different instruments is made.

The writ of habeas corpus is a legal tool with a complex relationship to carceral practices. The writ has functioned both to liberate illegally-detained individuals and to affirm the validity of underlying systems of legally-authorized incarceration. The so-called “Great Writ of Liberty” has thus survived and even thrived in a number of contexts where liberty interests have been systematically denied. Advocacy surrounding the use of the writ on behalf of non-human animals in U.S. courts has, however, tended toward aspirational, sometimes bordering on fantastical, accounts of the writ’s achievements in human justice contexts.

This chapter will introduce a corrective to this superlative vision of habeas corpus, its achievements in human justice contexts, and its potential for animal liberation. This study will argue that one well-publicized advocacy approach, taken most notably by Steven Wise and the Nonhuman Rights Project, overstates the writ’s accomplishments, often relying on an incomplete account of the writ’s history to do so. In particular, this account of the writ’s successes tends to paint struggles against racial violence and inequality as complete, thus minimizing the import of urgent ongoing justice projects. Next, a historical corrective is offered, demonstrating how closer attention to the writ’s actual role in human carceral systems can enrich our understanding of the writ’s limits and potential. This account will emphasize that the writ of habeas corpus operates only to challenge illegal (rather than unjust) detention; that it operates only at the margins of legal confinement systems to contain rather than eliminate carceral practices; and that it therefore serves a role not only in challenging individual instances of confinement, but also in sustaining and validating ongoing carceral practices.

This more critical picture of habeas corpus, however, does not strip the writ of its potential as an advocacy tool for the interests of non-human animals. This chapter will argue that animal advocates might join other social justice movements in adopting a more ambivalent embrace of rights litigation. It is possible, often necessary, for advocates to turn to legal tools without adopting an uncritical posture toward law. Indeed, as with other ambivalent embraces of rights—including historical uses of habeas corpus—litigation is often a critical tool in bringing political attention to social injustices. This chapter will propose that the greatest potential offered by the writ of habeas corpus is a focus on liberty that invites advocacy spotlighting the experiences of animals living within human systems of violence and confinement. It is this prospect of exposing and exploring the harms of human domination of other species—not any fantastical account of the writ’s human achievements—that gives habeas corpus its most meaningful transformative potential.

Chapter 3 describes the evolution of privilege, as used by legislatures – especially in Nova Scotia – to discipline and punish both members and nonmembers for criticisms that impugned the dignity of the legislature or its members. As the reformist Nova Scotian assembly was, by the late 1820s, embroiled in budgetary disputes with the council, the stage was set for jurisdictional arguments. In his 1830 libel treatise the English writer Thomas Starkie advanced a framework to protect freedom of expression through expanding the reach of “qualified” privilege. Massachusetts courts were chiefly concerned with truth and bore a certain republican suspicion of privilege, so although the defense of privileged communication did arrive in Massachusetts, it did not attract much interest. In Nova Scotia, however, given the common law’s rejection of a truth defense to criminal libel and the prevalent concern with the jurisdiction of institutions, qualified privilege did take root, with journalist Joseph Howe relying heavily on Starkie in a famous trial in 1835.

This chapter explains the notion of the rule of law which Victorian jurists associated with the English constitution. It examines the role of habeas corpus in securing personal liberty, and explains the debates over martial law which followed the Jamaica revolt of 1865, in which common lawyers sought to subject emergency rule to the rule of law. Despite this strong commitment to the rule of law at home, British rulers in the empire regularly introduced emergency regimes or detained political prisoners through ad hominem legislation, as was done in 1877 in the case of Abdullah, Sultan of Perak. Whereas in India, general legislation was passed to allow the detention of political prisoners and the introduction of martial law, in most of Africa, the colonial authorities used either specially enacted ad hominem ordinances or uncodified martial law powers. This was done even in East Africa, when Mwanga of Buganda and Kabagera of Bunyoro were detained and deported, even though legislation following Indian forms had been passed there. This chapter considers questions raised by the use of such emergency legislation for British perceptions of and fidelity to the rule of law.

This chapter examines the use of martial law powers during four frontier wars against the Xhosa people, in 1835, 1846, 1850 and 1877, and two rebellions by mixed-race ‘Hottentot’ and Griqua people, and discusses the debates over the nature of martial law which followed. During the first two wars, martial law powers were largely used to facilitate the raising of troops, but questions were raised about whether martial law could be used to govern newly acquired areas. As the debates over the status of the territory east of the Keiskamma river showed, martial law could not be used to govern land incorporated into the colony, but it could be used to administer conquered lands. Martial law powers were also used to conduct trials and imprison rebels in 1851 and 1878, which led to debates between law officers in London and Cape Town regarding the nature of these powers. In these debates, the law officers endorsed the English common lawyers’ view which had emerged after 1865. A strong commitment to the rule of law was also expressed by the Cape Supreme Court when dealing with the case of Griqua prisoners, detained without trial at Cape Town after the rebellion of 1878.

This chapter considers the first cases arising from African detentions in which courts in London considered the legality of ad hominem ordinances. The first case taken to the Privy Council was that of the Mpondo chief, Sigcau, who was detained in Griqualand East in 1895. Although the Privy Council rejected the Cape government’s appeal from Chief Justice de Villiers’s decision to free him, it confirmed that a sovereign legislature could authorise ad hominem detention laws. In the second case, that of chief Sekgoma Letsholathibe, the Court of Appeal upheld a detention proclamation, rejecting arguments which claimed that the detainee had common law rights confirmed by Magna Carta, by holding that parliament had validly delegated its legislative power through the Foreign Jurisdiction Act. In the third case, that of Saad Zaghlul Pasha, the Privy Council also rejected a claim for common law rights of liberty, on the ground that, in crown colonies, the crown had full power to detain under its prerogative. These cases show that, when questions of the liberty of Africans came before English judges, they opted for a formal vision of rule by law over a substantive vision of the rule of law.

This chapter argues that custody necessity examination cannot replace the function of the habeas corpus guarantee, as it is not consistent with the personal liberty safeguards provided for in Art. 9(4) ICCPR. The Chinese government claims to be ‘building a socialist country under the rule by/of law’ and has emphasised that government actions are exercised in accordance with the law. However, the Criminal Procedure Law empowers the people’s procuratorates to review continuing pretrial custody, and it neither mandates a court review of pretrial detentions nor grants detained persons any legal remedy to request a review of the lawfulness of an arrest decision. Chinese legislation has not established habeas corpus (i.e. a judicial remedy), but it seems that the Chinese government is pursuing the establishment of a new version of habeas corpus with ‘Chinese characteristics’ to replace the habeas corpus guarantee in international human rights law. In other words, the Chinese government is trying to ensure procedural safeguards for criminal suspects and defendants in pretrial custody, albeit not by means of the habeas corpus provision in Art. 9(4) ICCPR.

Remedies in the criminal process are the most frequently awarded remedies. Part I outlines existing practices in international and select domestic courts. International criminal courts have more experience using alternatives to stays of proceedings or exclusion of evidence by awarding sentence reductions or damage awards, including for crime victims. Domestic courts often balance competing interests before ordering stays or excluding evidence but often not in a transparent or disciplined manner. Part II suggests that rather than relying on vague concepts of judicial integrity, courts should require the state to justify restrictions on remedies through proportionality reasoning. This should be based on legitimate state objectives, not including the seriousness of the offence charged but that does include the seriousness of the violation. Part III applies the two-track approach and argues that courts, subject to proportionality constraints, should focus on compensating for violations. This make sense of individualistic standing and causation requirements. Individual and systemic tracks are not watertight compartments. The court should consider whether the state has responded reasonably to the violation, including with respect to police training and discipline. Domestic courts should be more attentive to repetitive violations and the need to respond with cycles of individual and systemic remedies.

This chapter surveys the substantive common law in the later sixteenth century. The rise of habeas corpus enabled the judicial review of prerogative jurisdictions and powers, so that the rule of law was now firmly rooted. The new atmosphere of rights was linked to Magna Carta, now rescued from oblivion. Private law was still dominated by the land law. Remedies for the protection of real property were simplified, but much confusion had been introduced by the Statutes of Uses and Wills, and a major new concern was the use of perpetuity clauses in family settlements to prevent the barring of entails. The law of contract is largely timeless, but the doctrine of consideration belongs to this period, and a decision of 1602 finally sanctioned an action for recovering debts without the archaic obstacle called wager of law. The law of tort was dominated by defamation rather than negligence. Criminal law was not the concern of practising lawyers and was relatively undeveloped, especially at the level of misdemeanours. The role of the Star Chamber is considered. The chapter ends with a brief assessment of Elizabeth I’s attitudes to law and justice.

This chapter discusses the development and application of international humanitarian law (IHL) and its interrelationship with human rights law. It further examines this special relationship, which is of particular importance for the protection of civilians, especially where the applicability of IHL is contested or where IHL constitutes an exception to certain rights, such as the right to life, or fails to prevent and/or provide effective remedies for violations. The chapter seeks to identify the scope of application of IHL and demonstrate the degree to which the two can be reconciled. Moreover, a special case is made for the law applicable in situations of military occupation whereby human rights are subordinate to IHL. Despite this subordination, in practice because international human rights tribunals are not mandated to apply humanitarian law they necessarily interpret and enforce the rights of the victims on the basis of the rights found in their respective statutes. As a result, the jurisprudence of human rights tribunals is not always consistent with IHL. Yet, such tribunals are hard pressed to accept jurisdiction over situations which would otherwise be resolved on the basis of IHL alone. This chapter therefore goes on to discuss the exercise of extraterritorial jurisdiction by human rights tribunals.

New Orleans authorities accused William H. Williams of violating a Louisiana state law of 1817 against the importation of convict slaves. Williams, as it turned out, had a long history in the courtroom. Although his business practices helped him largely avoid redhibition suits, and he was never charged with slave stealing or kidnapping as were some of his slave–dealing counterparts, he did face multiple suits lodged by free blacks who claimed that they were unlawfully imprisoned in the Yellow House, Williams’ slave jail.

Laura Pitter describes the institutionalization of practices and procedures that have virtually stymied national security litigation in US courts. She surveys the evolution of habeas litigation, the deterioration of principles underlying attorney-client privilege, the overaggressive claims based on the states secrets doctrine, and the overclassification of material relevant to these cases. Ultimately, she questions the relationship between these policies and security itself.