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Ancient laws

January 9th, 2012

An article on the Fairfax website[1] refers to habeas corpus as an ancient legal action from 17th century England. That’s technically true, but shouldn’t the article point out that the crime for which the person in question was convicted (soliciting to murder) and the legal procedures under which he was convicted are even more ancient?

Habeas corpus may be old, and have a Latin name, but it’s still central to common law, and needs to be defended against those who would destroy it in the name of the War on Terror.

fn1. For some reason, it appears under “WA Today”. I did a little digging and the subject of the story is a property developer who once owned a Scottish island with a title attached (not a barony, I’m pretty sure).

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  1. January 9th, 2012 at 11:01 | #1

    Speaking of “ancient laws”:

    http://www.nytimes.com/2012/01/08/opinion/sunday/my-guantanamo-nightmare.html?_r=4&src=twr

    This is the story of a Red Crescent worker held wrongly, for no reason, in Guantanamo for 7 years.

    I hope we don’t have to go back to arguing with trolls about the insanity of allowing the executive the power of indefinite detention without recourse to due process under a properly functioning legal system.

    As an aside, the NDAA now allows for the exact same thing to happen to US citizens. The difference is that it would now be legal to hold anyone, indefinitely, on nothing more than suspicion and without any right of legal review. There has been a virtual media blackout of this law in the US (and here to some extent).

  2. paul walter
    January 9th, 2012 at 12:20 | #2

    What is the horror within the Establishments as regards open trial, contestable evidence and innocence till proven guilty mitigating against arbitrary arrest?
    Just this mo came from a link to Andy Worthington’s blog where he has had an article up on much the same thing, re the ‘States!
    Its all quite simple really. If they can de-person or disenfranchise one group, you can employ the precedent to attack the rest. And resistance can be crushed within the new framework quite easily, as removal of legal protections for Occupy protesters has demonstrated.
    The key point in Worthington’s article was contained in a small sentence dealing with the conservative legal establishments irrational decision to privilege government evidence- since when are these folk any less “human” than the rest of us? This is surely the legal equivalent to voodoo economics, to claim evidence or criminal charges are exempt from scrutiny and beyond legal challenge on the basis that they are instigated or proffered by government functionaries- surely the events of the Dr Haneef case indicated the consequences of such an unthinking policy and the need for restoration of a system based on openness and natural justice?

  3. Martin
    January 9th, 2012 at 12:22 | #3

    IANAL but isn’t all the common law the laws of the Anglo-Saxons (as interpreted by judges over the centuries?). I think you will find murder an ‘ancient law’ going back to the earliest law codes.

  4. John Quiggin
    January 9th, 2012 at 13:06 | #4

    @Megan
    I posted on this not long ago

    @Martin You’re right about murder of course. Habeas corpus turns out to have a statutory foundation in C17, with a previous common law history dating back to (at least) 1305.

    http://en.wikipedia.org/wiki/Habeas_corpus#Origins_in_England

  5. Martin
    January 9th, 2012 at 13:31 | #5

    Specifically, for murder, see The Laws of Æthelberht, King of Kent, 560-616 A.D (http://www.fordham.edu/Halsall/source/560-975dooms.asp if you want to read a translation, but believe me, there are lots of offences there that are still crimes today).

  6. BilB
    January 14th, 2012 at 17:41 | #6

    I suggest that you research further to the ninth century, to Aelfred of Wessex…Alfred the Great…for definitive background on true Justice in the modern context.

  7. BilB
    January 15th, 2012 at 09:08 | #7

    Martin that is a good resource. I was under the impression that Aelfred introduced the “man gold” (compensation for damage against the person with gold rather than equal injury) system. But according to the Fordham resource it was Aethelbert some 400 years earlier. Aelfred did, according to the histories that I have read create the jury system of judgement at the beginning of Brittain, along with many other features of our modern life that we take for granted. Universal education being one. He also reputedly created a bill of rights which gave women the right of self determination and the right to own property. You can see evidence of these rights in the wording of the laws.

  8. Martin
    January 16th, 2012 at 11:23 | #8

    @BilB, Fairfax seem to be attempting the argument from intellectual fashion; ‘it’s old, so it must be wrong’. One could debate the origin of English practices that are still relevant, but clearly there were good decisions taken centuries ago that still benefit us today, such as Edward III’s codification of what treason specifically meant (fourteenth century), or the rule that the executive (the king) needed the support of parliament for new laws and taxes (fifteenth century).

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