Habeas corpus

The writ of habeas corpus is very old, certainly pre-dating Magna Carta, though redefined several times by legislation. Literally meaning ‘you have the body’, it is what used to be called a ‘prerogative writ’, the modern equivalent of which can be issued by any High Court judge. The writ is an order to the person in charge of someone’s detention, typically a prison governor, to deliver the named person so the court can investigate the legality of his imprisonment. In the United Kingdom it cannot be used as an alternative to an appeal in a criminal trial if some appeal mechanism already exists or has been used unsuccessfully, but otherwise can be issued in a wide variety of contexts; a common current human rights application in the UK is in immigration appeals where someone is held in prison awaiting deportation. It is similarly used against detention under non-criminal statutes like the Mental Health Act. It is a common misunderstanding to believe that a detained person can have a series of applications made from judge to judge until one is successful. Subsequent applications may be made only when based on new evidence. The writ has been suspended during various emergencies in the past, but never since the beginning of the 20th century. It is specifically protected in the US Constitution, in Article 1 (Section 9), which states that it may not be suspended except during periods of emergency; it has been suspended only once, when, during the Civil War, President Abraham Lincoln ignored a judicial pronouncement that only Congress had the power of suspension. In the USA it has a particular use in enabling federal courts to test the constitutionality of state criminal laws under which someone is imprisoned. Technically, the writ commonly used is habeas corpus ad subjiciendum; there are other habeas corpus writs, largely obsolescent, for particular technical circumstances.


Harassment, by state power or by individuals, has emerged as a central human rights concern, with daily news reports of allegations of, for example, sexual harassment in the work place, or racial harassment by the police. Most complex organizations, such as corporations or universities, now have codes of behaviour to control harassment, which is often left undefined, as though it were a very obvious and natural concept. In fact proper legal controls in statutes very seldom use the concept, let alone the word, precisely because it is too wide. When the United Kingdom passed a Protection from Harassment Act (1997), it was intended largely to deal with the problem of stalking, though subsequent judicial interpretation has widened it somewhat. Interestingly, the Act did not itself manage to provide much of a definition of the concept, relying on the rather loose formulation that harassment ‘includes causing alarm or causing distress’. Where harassment can be given a sufficiently concrete definition to enter a parliamentary statute, it usually turns out to be perfectly well-covered by one or more terms which already define crimes. There are two core meanings to harassment. One, typical of what is meant when police or other authorities are accused of harassing someone or some group, refers to someone or some group deliberately using their proper powers and authorities in such a way as to pick on a particular target unnecessarily, with the aim simply of making life miserable for the victim, rather than achieving whatever the purpose for which the powers were originally granted. Thus police harassment of, say, black youths might consist of them regularly and automatically using stop and search powers to interfere with the legitimate movements of the youths when there is no real ground for suspecting them, and when some more favoured but equally potentially suspect group, white football fans, for example, are left untroubled. The difficulty in controlling harassment under this meaning is that the powers which are being misused are necessary for legitimate law and order tasks, and the claim of harassment becomes a judgement on operational police matters, with the ready defence that civilian investigators cannot possibly understand the problems experienced in the course of everyday police work. It may be that a concept found in continental European public law, détournement de pouvoir, might more readily be used. This means that a public authority has used a power it indubitably has, but for a purpose which is irrelevant to its original design. Thus the use by police of the Sus Law might be seen as such a détournement if it was regularly used in circumstances the legislators clearly did not have in mind, such as checking up on black youths just on the off chance that they had committed some crime.

In a way, the logic of the other core meaning of harassment is the same. This usually refers to persistent behaviour which is not in itself illegal, and could not easily be made so, but is targeted at a victim in order to persecute them. Sexual innuendo and persistent unwelcome sexual invitations addressed towards a junior staff member of the opposite sex by a manager, or by the staff member’s workmates, can lead to destructive feelings of insecurity, and clearly constitutes harassment. The difficulty is how to isolate the offending ingredient in the behaviour sufficiently closely to ban it when, innocently carried out, the behaviour, language or whatever is part of common daily life. What all forms of harassment have in common is the motive of the harasser, to hurt, inconvenience, embarrass or whatever, and the fact that harassment, as opposed to actually illegal behaviour, involves a misuse of powers or an excessive indulgence in what is otherwise legitimate.


H. L. A. Hart (1907–92, who seems never to have been publicly known other than by his initials), was Professor of Jurisprudence in the University of Oxford until 1969, when he was succeeded by the man who has done most to try to overthrow his philosophy of law, Ronald Dworkin. Hart was the last of the great exponents of legal positivism, and generally an exponent of a particular, highly utilitarian, conception of Liberalism associated with John Stuart Mill. He was equally influenced by the general positivism of the Oxford ‘analytic philosophy’ tradition of his day. His major work, The Concept of Law, published in 1961, is still treated as an authoritative statement of legal positivism, and has by no means ceased to have influence. To a large extent one could characterize legal philosophy in the last part of the 20th century throughout much of the common law world as an ongoing debate between Hartians and Dworkinians. It is characteristic of positivist thinking in any field that it is deeply suspicious of any truth claims based on non-observable grounds. The application of this scepticism to law is that much talk of rights requires acceptance that they are, at root, based on personal intuitions of natural law or moral beliefs, even if these are claimed to be universally held.

In contrast to such theories, Hart recognizes only two sorts of legal rules as valid. These he calls primary and secondary rules. Broadly speaking a secondary rule is what others might call a constitutional rule, which sets out for a legal system who can make other rules, and how they are to be legislated. This secondary rule is in some ways tantamount to a sociological observation, and indeed Hart subtitles his book ‘an essay in sociological jurisprudence’. The secondary rule is the rule which is recognized and followed by those who need to follow it for the system to work, such as legislators, judges, police and so on. All other valid law consists of primary rules, intentionally made by those operating under the secondary rule, which is also called a ‘rule of recognition’. They need not actually be statutes; Hart is happy to accept that common law contains judge-made rules, but they must all be identifiable by the rule of recognition. It follows from this position that the only rights that exist, human, civil or whatever, are themselves primary rules identified by a rule of recognition, and there can be no absolutely valid human rights mankind has by virtue of being human. To the extent that internationally recognized rights, such as those applied by the European Court of Human Rights, exist at all, they do so by virtue of being ‘recognized’, that is, validated, by the positive rule-making machinery of each national state. Hart’s legal philosophy, despite being positivist, was highly liberal in other ways, as witnessed by his celebrated literary debate with Patrick Devlin, a distinguished Law Lord, on the legitimacy of legal enforcement of sexual morality. In this Hart followed the line taken by John Stuart Mill that moral values could never be enforced except to protect others from harm. It is revealing of the empirical nature of Hart’s thought that the subtitle of his famous book is ‘An Essay in Descriptive Sociology’. His concern was very much to establish that a law is anything that the relevant political actors, judges, chief constables, home secretaries and so on, ‘recognize’ as a law.

Helsinki Accords (see Organization on Security and Co-operation in Europe)


Honour, archaic though it sounds to an English speaker, continues to be an important concept in some continental European jurisdictions, especially Germany, when used in a human rights context. Protecting someone’s personal honour is very much tied in with the concept of human dignity, and particularly to rights often otherwise associated with privacy. The human rights aspects of the laws of defamation, libel and slander, are particularly complex because, inevitably, such laws can conflict with the right of freedom of speech enshrined in many constitutions. Yet if one tries to work out how freedom of speech might be limited in the interests of protecting individuals from unwarranted, unnecessary, or plainly unfair intrusion under, say, the US Bill of Rights (see Bill of Rights (USA)