What is a legal remedy?

A legal remedy, also judicial relief or a judicial remedy is the means with which a court of law, usually in the exercise of civil law jurisdiction, enforces a right, imposes a penalty, or makes another court order to impose its will.
In common law jurisdictions and mixed civil-common law jurisdictions, the law of remedies distinguishes between a legal remedy (e.g. a specific amount of monetary damages) and an equitable remedy (e.g. injunctive relief or specific performance). Another type of remedy available in these systems is declaratory relief, where a court determines the rights of the parties to an action without awarding damages or ordering equitable relief.
In English and American jurisprudence, there is a legal maxim (albeit one sometimes honored in the breach) that for every right, there is a remedy; where there is no remedy, there is no right. That is, lawmakers claim to provide appropriate remedies to protect rights. This legal maxim was first enunciated by William Blackstone: "It is a settled and invariable principle in the laws of England, that every right when with-held must have a remedy, and every injury its proper redress."

Types of Remedies in Common Law Systems

There are three crucial categories of remedies in common law system. One is from the law courts of England, and is seen in the form of a payment of money to the victim. This payment is commonly referred to as damages. Compensatory damages compensate an injured victim or plaintiff, and punitive damages punish someone who because of fraud or intentional conduct, is deemed to deserve punishment. Punitive damages serve the function in civil law that fines do in criminal law.
The second category of remedy comes from the equitable jurisdiction developed in the English Court of Chancery and Court of Exchequer. The injunction is a type of equitable remedy, as is specific performance, in which someone who enters into a contract is forced to perform whatever promise has been reneged upon. Two additional equitable remedies are the equitable lien and the constructive trust.
The third broad group is declaratory remedies. Common examples are the declaratory judgment and the action to quiet title, and these remedies usually involve a court's determination of how the law applies to particular facts without any command to the parties. Courts give declaratory remedies about many different kinds of questions, including whether a person has a legal status, who the owner of a property is, whether a statute has a particular meaning, or what the rights are under a contract.
While those are the three basic categories of remedies in common law, there are also a handful of others (such as reformation and rescission, both dealing with contracts whose terms need to be rewritten or undone).

Case-by-case remedies versus announced remedies

Remedies can be, and in American law usually are, determined case by case, and take into account many different facts including the amount of harm caused to the victim. Remedies can also be determined in advance for an entire class of cases. For example, there can be a fixed fine for all violations of a legal rule, regardless of how much harm was caused in the particular case.

Examples of legal remedies

Damages, which may include:

Compensatory damages
Punitive damages
Hedonic damages
Incidental damages
Liquidated damages
Nominal damages

Coercive relief

Specific performance
Injunctions
Restitution
Account of profits

What is the purpose of a civil remedy?

Civil remedies are procedures and sanctions, specified by civil stat- utes and regulations, used to prevent or reduce criminal problems and incivilities. Civil remedies generally aim to persuade or coerce non- offending third parties to take responsibility and action to prevent or end criminal or nuisance behavior.

Adequate remedy

· An adequate remedy or adequate remedy at law is a legal remedy (either court-ordered or negotiated between the litigants) which the court deems satisfactory, without recourse to an equitable remedy.

· This consideration expresses to the court whether money should be awarded or a court order should be decreed. Whether legal damages or equitable relief are requested depends largely on if the remedy can be valued. As an operation of law, an attorney often must present to the court whether there is an adequate remedy. This would be a basic principle of equity.

· For example, a neighbor building on a landowner's parcel would have little or no value that can be paid because land is unique, and an inadequate value could be ascertained; contrast this, for instance, with the neighbor borrowing the landowner's car and being 100% at fault for an accident. In the latter case, the valuation of the car plus other consequentially- caused damages can be reasonably valuated.

· Therefore, as a general rule, where the fair market value can readily be assessed, with certain carved exceptions, the remedy at law is damages (or money). Whereas, the "inadequacy" of a remedy at law leads a lawyer usually to seek equitable relief from the court. When damages, a monetary award, is not an adequate or appropriate remedy, equity can order a "specific performance", an order of the court requiring a party to perform the obligations that he or she undertook to perform under the contract, especially where what was to be exchanged under contract cannot be found easily elsewhere or at all, such as antiques, parcels of land, etc.

· There is no such claim as an adequate relief claim. Damages are often bifurcated or determined in a separate trial or as a part in parcel of different determination from whether a certain tort or contract (etc.) has occurred.

Civil and political rights

Civil and political rights are a class of rights that protect individuals' freedom from infringement by governments, social organizations and private individuals, and which ensure one's ability to participate in the civil and political life of the society and state without discrimination or repression.
Civil rights include the ensuring of peoples' physical and mental integrity, life and safety; protection from discrimination on grounds such as race, gender, national origin, colour, sexual orientation, ethnicity, religion, or disability; and individual rights such as privacy, the freedoms of thought and conscience, speech and expression, religion, the press, assembly and movement.
Political rights include natural justice (procedural fairness) in law, such as the rights of the accused, including the right to a fair trial; due process; the right to seek redress or a legal remedy; and rights of participation in civil society and politics such as freedom of association, the right to assemble, the right to petition, the right of self-defense, and the right to vote.
Civil and political rights form the original and main part of international human rights. They comprise the first portion of the 1948 Universal Declaration of Human Rights (with economic, social and cultural rights comprising the second portion). The theory of three generations of human rights considers this group of rights to be "first-generation rights", and the theory of negative and positive rights considers them to be generally negative rights.

1 History
2 Protection of rights
3 Other rights
4 Civil rights movements
5 Problems and analysis
6 First-generation rights
7 See also
8 References
9 External links

History

The phrase "civil rights" is a translation of Latin ius civis (rights of a citizen). Roman citizens could be either free (libertas) or servile (servitus), but they all had rights in law. After the Edict of Milan in 313, these rights included the freedom of religion. Roman legal doctrine was lost during the Middle Ages, but claims of universal rights could still be made based on religious doctrine. According to the leaders of Kett's Rebellion (1549), "all bond men may be made free, for God made all free with his precious blood-shedding."
In the 17th century, English common law judge Sir Edward Coke revived the idea of rights based on citizenship by arguing that Englishmen had historically enjoyed such rights. The Parliament of England adopted the English Bill of Rights in 1689. The Virginia Declaration of Rights, by George Mason and James Madison, was adopted in 1776. The Virginia declaration is the direct ancestor and model for the U.S. Bill of Rights (1789).
In early 19th century Britain, the phrase "civil rights" most commonly referred to the issue of legal discrimination against Catholics. In the House of Commons support for the British civil rights movement was divided, many more well-known politicians supported the discrimination towards Catholics. Independent MPs (such as Lewis Eves and Matthew Mountford) applied pressure for Catholic emancipation on the larger political parties. This process culminated in the Roman Catholic Relief Act 1829 which restored the civil rights of Catholics.
In the 1860s, Americans adapted this usage to newly freed blacks. Congress enacted civil rights acts in 1866, 1871, 1875, 1957, 1960, 1964, 1968, and 1991.

Protection of rights

T.H. Marshall notes that civil rights were among the first to be recognized and codified, followed later by political rights and still later by social rights. In many countries, they are constitutional rights and are included in a bill of rights or similar document. They are also defined in international human rights instruments, such as the 1948 Universal Declaration of Human Rights and the 1967 International Covenant on Civil and Political Rights.
Civil and political rights need not be codified to be protected, although most democracies worldwide do have formal written guarantees of civil and political rights. Civil rights are considered to be natural rights. Thomas Jefferson wrote in his A Summary View of the Rights of British America that "a free people [claim] their rights as derived from the laws of nature, and not as the gift of their chief magistrate."
The question of to whom civil and political rights apply is a subject of controversy. In many countries, citizens have greater protections against infringement of rights than non-citizens; at the same time, civil and political rights are generally considered to be universal rights that apply to all persons.
According to political scientist Salvador Santino F. Regilme Jr., analyzing the causes of and lack of protection from human rights abuses in the Global South should be focusing on the interactions of domestic and international factors — an important perspective that has usually been systematically neglected in the social science literature.

Other rights

Custom also plays a role. Implied or un enumerated rights are rights that courts may find to exist even though not expressly guaranteed by written law or custom; one example is the right to privacy in the United States, and the Ninth Amendment explicitly shows that there are other rights that are also protected.
The United States Declaration of Independence states that people have unalienable rights including "Life, Liberty and the pursuit of Happiness". It is considered by some that the sole purpose of government is the protection of life, liberty and property. The right to self-defense is embodied in the 2nd Amendment right to bear arms.
Ideas of self-ownership and cognitive liberty affirm rights to choose the food one eats,the medicine one takes,the habit one indulges.

Civil rights movements

Savka Dabčević-Kučar, Croatian Spring participant; Europe's first female prime minister

Civil rights guarantee equal protection under the law. When civil and political rights are not guaranteed to all as part of equal protection of laws, or when such guarantees exist on paper but are not respected in practice, opposition, legal action and even social unrest may ensue.
Some historians suggest that New Orleans was the cradle of the civil rights movement in the United States, due to the earliest efforts of Creoles to integrate the military en masse. W.C.C. Claiborne, appointed by Thomas Jefferson to be governor of the Territory of Orleans, formally accepted delivery of the French colony on December 20, 1803. Free men of color had been members of the militia for decades under both Spanish and French control of the colony of Louisiana. They volunteered their services and pledged their loyalty to Claiborne and to their newly adopted country.
But in early 1804, the new U.S. administration in New Orleans, under Governor Claiborne, was faced with a dilemma previously unknown in the United States, i.e., the integration of the military by incorporating entire units of previously established "colored" militia. See, e.g., the February 20, 1804 letter to Claiborne from Secretary of War Henry Dearborn that "it would be prudent not to increase the Corps, but to diminish, if it could be done without giving offense".
Civil Rights movements in the United States gathered steam by 1848 with such documents as the Declaration of Sentiment. Consciously modeled after the Declaration of Independence, the Declaration of Rights and Sentiments became the founding document of the American women's movement, and it was adopted at the Seneca Falls Convention, July 19 and 20, 1848.
Worldwide, several political movements for equality before the law occurred between approximately 1950 and 1980. These movements had a legal and constitutional aspect, and resulted in much law-making at both national and international levels. They also had an activist side, particularly in situations where violations of rights were widespread. Movements with the proclaimed aim of securing observance of civil and political rights included:

the 1950s and 1960s Civil Rights Movement in the United States, where rights of black citizens had been violated;
the Northern Ireland Civil Rights Association, formed in 1967 following failures in this province of the United Kingdom to respect the Roman Catholic minority's rights; and
movements in many Communist countries, such as the Prague Spring and Charter 77 in Czechoslovakia and the uprisings in Hungary.

Most civil rights movements relied on the technique of civil resistance, using nonviolent methods to achieve their aims. In some countries, struggles for civil rights were accompanied, or followed, by civil unrest and even armed rebellion. While civil rights movements over the last sixty years have resulted in an extension of civil and political rights, the process was long and tenuous in many countries, and many of these movements did not achieve or fully achieve their objectives.

Problems and analysis

Questions about civil and political rights have frequently emerged. For example, to what extent should the government intervene to protect individuals from infringement on their rights by other individuals, or from corporations — e.g., in what way should employment discrimination in the private sector be dealt with?
Political theory deals with civil and political rights. Robert Nozick and John Rawls expressed competing visions in Nozick's Anarchy, State, and Utopia and Rawls' A Theory of Justice. Other influential authors in the area include Wesley Newcomb Hohfeld and Jean Edward Smith.

First-generation rights

First-generation rights, often called "blue" rights, deal essentially with liberty and participation in political life. They are fundamentally civil and political in nature, as well as strongly individualistic: They serve negatively to protect the individual from excesses of the state. First-generation rights include, among other things, freedom of speech, the right to a fair trial, (in some countries) the right to keep and bear arms, freedom of religion and voting rights. They were pioneered in the United States by the Bill of Rights and in France by the Declaration of the Rights of Man and of the Citizen in the 18th century, although some of these rights and the right to due process date back to the Magna Carta of 1215 and the Rights of Englishmen, which were expressed in the English Bill of Rights in 1689.
They were enshrined at the global level and given status in international law first by Articles 3 to 21 of the 1948 Universal Declaration of Human Rights and later in the 1966 International Covenant on Civil and Political Rights. In Europe, they were enshrined in the European Convention on Human Rights in 1953.

Election of remedies

In the law of civil procedure, election of remedies is the situation in which a winning party in a lawsuit must choose the means by which its injury will be remedied. For example, if a court finds that the plaintiff's painting was stolen by the defendant, then the plaintiff has two possible routes to restore the loss. The plaintiff can elect to either receive monetary damages equal to the entire value of the painting, or the plaintiff can ask the court to order the return of the stolen property (plus some minor amount of compensation for the suffering caused by its deprivation). However, the plaintiff cannot have both, and must therefore make an election of one or the other.
Under the old common law of England, a party had to make an election of remedies at the time that the complaint was filed. Most jurisdictions have since abandoned that requirement. Plaintiffs generally may now file initial pleadings that seek alternative means of relief, and need not make the election of remedies until a judgment is rendered as to the liability of the defendant.
The remedy should be elected while terminating the contract. If that remedy fails, the injured party should not be allowed to resort to alternative remedy. Failing in one remedy and going for another one is indicative of witch hunting i.e. the other party must be punished at any rate. Such an action takes the color of punitive measure which should be denied under law.

Equitable remedy

Equitable remedies are judicial remedies developed by courts of equity from about the time of Henry VII to provide more flexible responses to changing social conditions than was possible in precedent-based common law.

Overview

Equitable remedies were granted by the Court of Chancery in England, and remain available today in most common law jurisdictions. In many jurisdictions, legal and equitable remedies have been merged and a single court can issue either, or both, remedies. Despite widespread judicial merger, the distinction between equitable and legal remedies remains relevant in a number of significant instances. Notably, the United States Constitution's Seventh Amendment preserves the right to a jury, trial rights in civil cases over $20 to cases "at common law".
The distinction between types of relief granted by the courts is due to the courts of equity, such as the Court of Chancery in England, and still available today in common law jurisdictions.Equity is said to operate on the conscience of the defendant, so an equitable remedy is always directed at a particular person, and that person's knowledge, state of mind and motives may be relevant to whether a remedy should be granted or not.
Equitable remedies are distinguished from "legal" remedies (which are available to a successful claimant as of right) by the discretion of the court to grant them. In common law jurisdictions, there are a variety of equitable remedies, but the principal remedies are:

injunction
specific performance
account of profits
rescission
declaratory relief
rectification
equitable estoppel
certain proprietary remedies, such as constructive trusts
subrogation
in very specific circumstances, an equitable lien
equitable compensation
Appointment or removal of fiduciary
Interpleader

The two main equitable remedies are injunctions and specific performance, and in casual legal parlance references to equitable remedies are often expressed as referring to those two remedies alone. Injunctions may be mandatory (requiring a person to do something) or prohibitory (stopping them doing something). Specific performance requires a party to perform a contract, for example by transferring a piece of land to the claimant.
An account of profits is usually ordered where payment of damages would still leave the wrongdoer unjustly enriched at the expense of the wronged party. However, orders for an account are not normally available as of right, and only arise in certain circumstances.
Rescission and rectification are remedies in relation to contracts (or, exceptionally, deeds) which may become available.
Constructive trusts and tracing remedies are usually used where the claimant asserts that property has been wrongly appropriated from them, and then either (i) the property has increased in value, and thus they should have an interest in the increase in value which occurred at their expense, or (ii) the property has been transferred by the wrongdoer to an innocent third party, and the original owner should be able to claim a right to the property as against the innocent third party.
Equitable liens normally only arise in very specific factual circumstances, such as unpaid vendor's lien.
Equitable principles can also limit the granting of equitable remedies. This includes "he who comes to equity must come with clean hands" (i.e. the court will not assist a claimant who is himself in the wrong or acting for improper motives), laches (equitable remedies will not be granted if the claimant has delayed unduly in seeking them), "equity will not assist a volunteer" (meaning that a person cannot litigate against a settlor without providing the appropriate consideration e.g. Money) and that equitable remedies will not normally be granted where damages would be an adequate remedy. The most important limitation relating to equitable remedies is that an equitable remedy will not lie against a bona fide purchaser for value without notice.
Interestingly, damages can also be awarded in "equity" as opposed to "at law", and in some legal systems, by historical accident, interest on damages can be awarded on a compound basis only on equitable damages, but not on damages awarded at law. However, most jurisdictions either have ended this anachronism, or evinced an intention to do so, by modernising legislation.
The classification of a remedy as equitable has various consequences. For example, equitable remedies may be enforced by contempt, and equitable remedies are subject to equitable defenses.

Habeas corpus

Habeas corpus (/ˈheɪbiəs ˈkɔːrpəs/; Medieval Latin translating roughly to "You should have the body") is a recourse in law whereby a person can report an unlawful detention or imprisonment before a court, usually through a prison official.
A writ of habeas corpus is known as "the great and efficacious writ in all manner of illegal confinement",^{[Note 1]} being a remedy available to the meanest against the mightiest. It is a summons with the force of a court order; it is addressed to the custodian (a prison official for example) and demands that a prisoner be taken before the court, and that the custodian present proof of authority, allowing the court to determine whether the custodian has lawful authority to detain the prisoner. If the custodian is acting beyond his or her authority, then the prisoner must be released. Any prisoner, or another person acting on his or her behalf, may petition the court, or a judge, for a writ of habeas corpus. One reason for the writ to be sought by a person other than the prisoner is that the detainee might be held incommunicado. Most civil law jurisdictions provide a similar remedy for those unlawfully detained, but this is not always called habeas corpus. For example, in some Spanish-speaking nations, the equivalent remedy for unlawful imprisonment is the amparo de libertad ('protection of freedom').
Habeas corpus has certain limitations. Though a writ of right, it is not a writ of course. It is technically only a procedural remedy; it is a guarantee against any detention that is forbidden by law, but it does not necessarily protect other rights, such as the entitlement to a fair trial. So if an imposition such as internment without trial is permitted by the law, then habeas corpus may not be a useful remedy. In some countries, the process has been temporarily or permanently suspended, in all of a government's jurisdictions or only some, because of what might be construed by some government institutions as a series of events of such relevance to the government as to warrant a suspension; in more recent times, such events may have been frequently referred to as "national emergencies".
The right to petition for a writ of habeas corpus has nonetheless long been celebrated as the most efficient safeguard of the liberty of the subject. The jurist Albert Venn Dicey wrote that the British Habeas Corpus Acts "declare no principle and define no rights, but they are for practical purposes worth a hundred constitutional articles guaranteeing individual liberty".
The writ of habeas corpus is one of what are called the "extraordinary", "common law", or "prerogative writs", which were historically issued by the English courts in the name of the monarch to control inferior courts and public authorities within the kingdom. The most common of the other such prerogative writs are quo warranto, prohibito, mandamus, procedendo, and certiorari. The due process for such petitions is not simply civil or criminal, because they incorporate the presumption of non-authority. The official who is the respondent must prove his authority to do or not do something. Failing this, the court must decide for the petitioner, who may be any person, not just an interested party. This differs from a motion in a civil process in which the movant must have standing, and bears the burden of proof.

Etymology

From Latin habeas, 2nd person singular present subjunctive active of habere, "to have", "to hold"; and corpus, accusative singular of corpus "body". In reference to more than one person, habeas corpora.
Literally, the phrase means "you shall have the body". The complete phrase habeas corpus ad subjiciendum means "you shall have the person for the purpose of subjecting him/her to (examination)". These are the opening words of writs in 14th century Anglo-French documents requiring a person to be brought before a court or judge, especially to determine if that person is being legally detained.

Praecipimus tibi quod corpus A.B. in prisona nostra sub custodia tua detentum, ut dicitur, una cum die et causa captionis et detentionis suae, quocumque nomine praedictus A.B. censeatur in eadem, habeas coram nobis ... ad subjiciendum et recipiendum ea quae curia nostra de eo adtunc et ibidem ordinare contigerit in hac parte. Et hoc nullatenus omittatis periculo incumbente. Et habeas ibi hoc breve.^[6]

We command you, that the body of A.B. in Our prison under your custody detained, as it is said, together with the day and cause of his taking and detention, by whatever name the said A.B. may be known therein, you have at our Court ... to undergo and to receive that which our Court shall then and there consider and order in that behalf. Hereof in no way fail, at your peril. And have you then there this writ.

Examples

VICTORIA by the Grace of God, of the United Kingdom of Great Britain and Ireland Queen, Defender of the Faith, to J.K., Keeper of our Gaol of Jersey, in the Island of Jersey, and to J.C. Viscount of said Island, Greeting.

We command you that you have the body of C.C.W. detained in our prison under your custody, as it is said, together with the day and cause of his being taken and detained, by whatsoever name he may be called or known, in our Court before us, at Westminster, on the 18th day of January next, to undergo and receive all and singular such matters and things which our said Court shall then and there consider of in this behalf; and have there then this Writ.
United States of America, Second Judicial Circuit, Southern District of New York, ss.:
We command you that the body of Charles L. Craig, in your custody detained, as it is said, together with the day and cause of his caption and detention, you safely have before Honorable Martin T. Manton, United States Circuit Judge for the Second Judicial Circuit, within the circuit and district aforesaid, to do and receive all and singular those things which the said judge shall then and there consider of him in this behalf; and have you then and there this writ.

Similarly named writs

The full name of the writ is often used to distinguish it from similar ancient writs, also named habeas corpus. These include:

Habeas corpus ad deliberandum et recipiendum: a writ for bringing an accused from a different county into a court in the place where a crime had been committed for purposes of trial, or more literally to return holding the body for purposes of "deliberation and receipt" of a decision. ("Extradition")
Habeas corpus ad faciendum et recipiendum (also called habeas corpus cum causa): a writ of a superior court to a custodian to return with the body being held by the order of a lower court "with reasons", for the purpose of "receiving" the decision of the superior court and of "doing" what it ordered.
Habeas corpus ad prosequendum: a writ ordering return with a prisoner for the purpose of "prosecuting" him before the court.
Habeas corpus ad respondendum: a writ ordering return to allow the prisoner to "answer" to new proceedings before the court.
Habeas corpus ad testificandum: a writ ordering return with the body of a prisoner for the purposes of "testifying".

Origins in England

Habeas Corpus originally stems from the Assize of Clarendon, a re-issuance of rights during the reign of Henry II of England. In the 17th century the foundations for habeas corpus were "wrongly thought" to have originated in Magna Carta. This charter declared that:
No Freeman shall be taken or imprisoned, or be disseized of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed; nor will We not pass upon him, nor condemn him, but by lawful judgment of his Peers, or by the Law of the land.
William Blackstone cites the first recorded usage of habeas corpus ad subjiciendum in 1305, during the reign of King Edward I. However, other writs were issued with the same effect as early as the reign of Henry II in the 12th century. Blackstone explained the basis of the writ, saying "The King is at all times entitled to have an account, why the liberty of any of his subjects is restrained, wherever that restraint may be inflicted". The procedure for issuing a writ of habeas corpus was first codified by the Habeas Corpus Act 1679, following judicial rulings which had restricted the effectiveness of the writ. A previous law (the Habeas Corpus Act 1640) had been passed forty years earlier to overturn a ruling that the command of the King was a sufficient answer to a petition of habeas corpus.
Then, as now, the writ of habeas corpus was issued by a superior court in the name of the Sovereign, and commanded the addressee (a lower court, sheriff, or private subject) to produce the prisoner before the royal courts of law. A habeas corpus petition could be made by the prisoner him or herself or by a third party on his or her behalf and, as a result of the Habeas Corpus Acts, could be made regardless of whether the court was in session, by presenting the petition to a judge. Since the 18th century the writ has also been used in cases of unlawful detention by private individuals, most famously in Somersett's Case (1772), where the black slave Somersett was ordered to be freed. In that case these famous words are said to have been uttered "The air of England has long been too pure for a slave, and every man is free who breathes it". During the Seven Years' War and later conflicts, the Writ was used on behalf of soldiers and sailors pressed into military and naval service. The Habeas Corpus Act 1816 introduced some changes and expanded the territoriality of the legislation.
The privilege of habeas corpus has been suspended or restricted several times during English history, most recently during the 18th and 19th centuries. Although internment without trial has been authorized by statute since that time, for example during the two World Wars and the Troubles in Northern Ireland, the habeas corpus procedure has in modern times always technically remained available to such internees. However, as habeas corpus is only a procedural device to examine the lawfulness of a prisoner's detention, so long as the detention is in accordance with an Act of Parliament, the petition for habeas corpus is unsuccessful. Since the passage of the Human Rights Act 1998, the courts have been able to declare an Act of Parliament to be incompatible with the European Convention on Human Rights, but such a declaration of incompatibility has no legal effect unless and until it is acted upon by the government.
The wording of the writ of habeas corpus implies that the prisoner is brought to the court for the legality of the imprisonment to be examined. However, rather than issuing the writ immediately and waiting for the return of the writ by the custodian, modern practice in England is for the original application to be followed by a hearing with both parties present to decide the legality of the detention, without any writ being issued. If the detention is held to be unlawful, the prisoner can usually then be released or bailed by order of the court without having to be produced before it. It is also possible for individuals held by the state to petition for judicial review, and individuals held by non-state entities to apply for an injunction.
With the development of modern public law, applications for habeas corpus have been to some extent discouraged, in favour of applications for judicial review.
The Writ, however, maintains its vigour, and was held by the UK Supreme Court to be available in respect of a prisoner captured by British forces in Afghanistan, albeit that the Secretary of State made a valid return to the Writ justifying the detention of the claimant.

Other jurisdictions

Australia

The writ of habeas corpus as a procedural remedy is part of Australia's English law inheritance. In 2005, the Australian parliament passed the Australian Anti-Terrorism Act 2005. Some legal experts questioned the constitutionality of the act, due in part to limitations it placed on habeas corpus.

Canada

Habeas corpus rights are part of the British legal tradition inherited by Canada. The rights exist in the common law but have been enshrined in the Constitution Act 1982, under Section Ten of the Charter of Rights and Freedoms. This states that "Everyone has the right on arrest or detention... (c) To have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful".
Suspension of the writ in Canadian history occurred famously during the October Crisis, during which the War Measures Act was invoked by the Governor General of Canada on the constitutional advice of Prime Minister Pierre Trudeau, who had received a request from the Quebec Cabinet. The Act was also used to justify German, Slavic, and Ukrainian Canadian internment during the First World War, and the internment of German-Canadians, Italian Canadians and of Japanese Canadians during the Second World War. The writ was suspended for several years following the Battle of Fort Erie (1866) during the Fenian Rising, though the suspension was only ever applied to suspects in the Thomas D'Arcy McGee assassination.
The writ is available where there is no other adequate remedy. However, a superior court always has the discretion to grant the writ even in the face of an alternative remedy (see May v. Ferndale Institution). Under the Criminal Code the writ is largely unavailable if a statutory right of appeal exists, whether or not this right has been exercised.

France

A fundamental human right in the "1789 Declaration of the Rights of Man" drafted by Lafayette in cooperation with Thomas Jefferson, the guarantees against arbitrary detention are enshrined in the French Constitution and regulated by the Penal Code. The safeguards are equivalent to those found under the Habeas-Corpus provisions found in Germany, the United States and several Commonwealth countries. The French system of accountability prescribes severe penalties for ministers, police officers and civil and judiciary authorities who either violate or fail to enforce the law.
"Article 7 of [1789] Declaration also provides that "No individual may be accused, arrested, or detained except where the law so prescribes, and in accordance with the procedure it has laid down"... The Constitution further states that "No one may be arbitrarily detained. The judicial authority, guardian of individual liberty, ensures the observance of this principle under the condition specified by law." Its article 5 provides that everyone has the right to liberty and sets forth permissible circumstances under which people may be deprived of their liberty and procedural safeguards in case of detention. In particular, it states that "anyone deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful".
France and the United States played a synergistic role in the international team, led by Eleanor Roosevelt, which crafted the Universal Declaration of Human Rights. The French judge and Nobel Peace Laureate René Cassin produced the first draft and argued against arbitrary detentions. René Cassin and the French team subsequently championed the Habeas-Corpus provisions enshrined in the European Convention for the Protection of Human Rights and Fundamental Freedoms.

Germany

Germany has constitutional guarantees against improper detention and has been implemented in statutory law in a manner that can be considered as equivalent to writs of habeas corpus.
Article 104, paragraph 1 of the German Constitution provides that deprivations of liberty may be imposed only on the basis of a specific enabling statute that also must include procedural rules. Article 104, paragraph 2 requires that any arrested individual be brought before a judge by the end of the day following the day of the arrest. For those detained as criminal suspects, article 104, paragraph 3 specifically requires that the judge must grant a hearing to the suspect in order to rule on the detention.
Restrictions on the power of the authorities to arrest and detain individuals also emanate from article 2 paragraph 2 of the Constitution which guarantees liberty and requires a statutory authorization for any deprivation of liberty. In addition, several other articles of the Constitution have a bearing on the issue. The most important of these are article 19, which generally requires a statutory basis for any infringements of the fundamental rights guaranteed by the Constitution while also guaranteeing judicial review; article 20, paragraph 3, which guarantees the rule of law; and article 3 which guarantees equality.
In particular, a constitutional obligation to grant remedies for improper detention is required by article 19, paragraph 4 of the Constitution which provides as follows: "Should any person's right be violated by public authority, he may have recourse to the courts. If no other jurisdiction has been established, recourse shall be to the ordinary courts."

India

The Indian judiciary, in a catena of cases, has effectively resorted to the writ of habeas corpus to secure release of a person from illegal detention. For example, the Karnataka High Court heard in October 2009 a habeas corpus petition filed by the parents of a girl who married a Muslim boy from Kannur district and was allegedly confined in a madrasa in Malapuram town. Usually, in most other jurisdictions the writ is directed at police authorities. The extension to non-state authorities has its grounds in two cases: the 1898 Queen's Bench case of Ex Parte Daisy Hopkins, wherein the Proctor of Cambridge University did detain and arrest Hopkins without his jurisdiction, and Hopkins was released and that of Somerset v Stewart, in which an African slave whose master had moved to London was freed by action of the writ.
The Indian judiciary has dispensed with the traditional doctrine of locus standi, so that if a detained person is not in a position to file a petition, it can be moved on his behalf by any other person. The scope of habeas relief has expanded in recent times by actions of the Indian judiciary.
The habeas writ was used in the Rajan case, a student victim of torture in local police custody during the nationwide Emergency in India in 1976.On 12 March 2014, Subrata Roy's counsel approached the Chief Justice moving a habeas corpus petition. It was also filed by Panthers Party to protest the imprisonment of Anna Hazare, a social activist.

Ireland

In the Republic of Ireland access to a similar remedy to habeas corpus is guaranteed by Article 40.4 of the 1937 constitution. This guarantees "personal liberty" to each individual and outlines a detailed procedure. It does not mention the Latin term but includes the English phrase "produce the body". The constitution provides that this procedure is not binding on the Defence Forces during a state of war or armed rebellion.
The term 'habeas corpus' as used in the Rules of the Superior Courts does not refer to the constitutional procedure outlined below but to provisions still operable of the Habeas Courpus Acts- the State (Ahern) v Cotter [1982] IR 188
The expression 'order of Habeas Corpus' does not include an order made pursuant to Article 40, section 4 of the Constitution. Order 84 r 1(2) RSC
Article 40.4.2° states that a prisoner, or anyone acting on his behalf, may make a complaint to the High Court (or to any High Court judge) of unlawful detention. The court must then investigate the matter "forthwith" and may order that the defendant bring the prisoner before the court and give reasons for his detention. The court must immediately release the detainee unless it is satisfied that he is being held lawfully. The full text of the provision is as follows:
Upon complaint being made by or on behalf of any person to the High Court or any judge thereof alleging that such person is being unlawfully detained, the High Court and any and every judge thereof to whom such complaint is made shall forthwith enquire into the said complaint and may order the person in whose custody such person is detained to produce the body of such person before the High Court on a named day and to certify in writing the grounds of his detention, and the High Court shall, upon the body of such person being produced before that Court and after giving the person in whose custody he is detained an opportunity of justifying the detention, order the release of such person from such detention unless satisfied that he is being detained in accordance with the law. [Italics added]
The state inherited habeas corpus as part of the common law when it seceded from the United Kingdom in 1922, but the remedy was also guaranteed by Article 6 of the Constitution of the Irish Free State in force from 1922 to 1937. A similar provision was included when the current constitution was adopted in 1937. Since that date habeas corpus has been restricted by two constitutional amendments, the Second Amendment in 1941 and the Sixteenth Amendment in 1996.
Before the Second Amendment, an individual detained had the constitutional right to apply to any High Court judge for a writ of habeas corpus and to as many High Court judges as he wished. Since the Second Amendment, a prisoner has had only the right to apply to one judge, and, once a writ has been issued, the President of the High Court has authority to choose the judge or panel of three judges who will decide the case. The amendment also added a requirement that if the High Court believes someone's detention to be invalid due to the unconstitutionality of a law, it must refer the matter to the Irish Supreme Court and may only release the individual on bail in the interim.
In 1965, the Supreme Court ruled in the O'Callaghan case that the provisions of the constitution meant that an individual charged with a crime could be refused bail only if she was likely to flee or to interfere with witnesses or evidence. Since the Sixteenth Amendment, it has been possible for a court to take into account whether a person has committed serious crimes while on bail in the past.

Italy

In Italy the principle of habeas corpus is enshrined in Article 13 of the Constitution, which states:
"Personal liberty is inviolable. No one may be detained, inspected, or searched nor otherwise subjected to any restriction of personal liberty except by order of the Judiciary stating a reason and only in such cases and in such manner as provided by the law. In exceptional circumstances and under such conditions of necessity and urgency as shall conclusively be defined by the law, the police may take provisional measures that shall be referred within 48 hours to the Judiciary for validation and which, in default of such validation in the following 48 hours, shall be revoked and considered null and void. Any act of physical and moral violence against a person subjected to restriction of personal liberty shall be punished. The law shall establish the maximum duration of preventive detention."

Malaysia

In Malaysia, the remedy of habeas corpus is guaranteed by the federal constitution, although not by name. Article 5(2) of the Constitution of Malaysia provides that "Where complaint is made to a High Court or any judge thereof that a person is being unlawfully detained the court shall inquire into the complaint and, unless satisfied that the detention is lawful, shall order him to be produced before the court and release him".
As there are several statutes, for example, the Internal Security Act 1960, that still permit detention without trial, the procedure is usually effective in such cases only if it can be shown that there was a procedural error in the way that the detention was ordered.

New Zealand

In New Zealand habeas corpus may be invoked against the government or private individuals. In 2006, a child was allegedly kidnapped by his maternal grandfather after a custody dispute. The father began habeas corpus proceedings against the mother, the grandfather, the grandmother, the great grandmother, and another person alleged to have assisted in the kidnap of the child. The mother did not present the child to the court and so was imprisoned for contempt of court.^[31] She was released when the grandfather came forward with the child in late January 2007.

Pakistan

Issuance of a writ is an exercise of an extraordinary jurisdiction of the superior courts in Pakistan. A writ of habeas corpus may be issued by any High Court of a province in Pakistan. Article 199 of the 1973 Constitution of the Islamic Republic of Pakistan, specifically provides for the issuance of a writ of habeas corpus, empowering the courts to exercise this prerogative. Subject to the Article 199 of the Constitution, "A High Court may, if it is satisfied that no other adequate remedy is provided by law, on the application of any person, make an order that a person in custody within the territorial jurisdiction of the Court be brought before it so that the Court may satisfy itself that he is not being held in custody without a lawful authority or in an unlawful manner". The hallmark of extraordinary constitutional jurisdiction is to keep various functionaries of State within the ambit of their authority. Once a High Court has assumed jurisdiction to adjudicate the matter before it, justifiability of the issue raised before it is beyond question. The Supreme Court of Pakistan has stated clearly that the use of words "in an unlawful manner" implies that the court may examine, if a statute has allowed such detention, whether it was a colorable exercise of the power of authority. Thus, the court can examine the malafides of the action taken.

The Philippines

In the Bill of Rights of the Philippine constitution, habeas corpus is guaranteed in terms almost identically to those used in the U.S. Constitution. in Article 3, Section 15 of the Constitution of the Philippines states that "The privilege of the writ of habeas corpus shall not be suspended except in cases of invasion or rebellion when the public safety requires it".
In 1971, after the Plaza Miranda bombing, the Marcos administration, under Ferdinand Marcos, suspended habeas corpus in an effort to stifle the oncoming insurgency, having blamed the Filipino Communist Party for the events of August 21. Many considered this to be a prelude to Martial Law. After widespread protests, however, the Marcos administration decided to reintroduce the writ. In December 2009, habeas corpus was suspended in Maguindanao as the province was placed under martial law. This occurred in response to the Maguindanao massacre.

Scotland

The Parliament of Scotland passes a law to have the same effect as habeas corpus in the 18th century. This now known as the Criminal Procedure Act 1701 c.6. It was originally called "the Act for preventing wrongful imprisonment and against undue delays in trials". It is still in force although certain parts have been repealed.

Spain

In 1526 the Fuero Nuevo established a form of habeas corpus in the territory of the Señorío de Vizcaya. The present Constitution of Spain states that "A habeas corpus procedure shall be provided for by law to ensure the immediate handing over to the judicial authorities of any person illegally arrested". The statute which regulates the procedure is the Law of Habeas Corpus of 24 May 1984 which provides that a person imprisoned may, on her or his own or through a third person, allege that she or he is imprisoned unlawfully and request to appear before a judge. The request must specify the grounds on which the detention is considered to be unlawful which can be, for example, that the custodian holding the prisoner does not have the legal authority, that the prisoner's constitutional rights have been violated, or that he has been subjected to mistreatment. The judge may then request additional information if needed and may issue a habeas corpus order at which point the custodian has 24 hours to bring the prisoner before the judge.

United States

The United States inherited habeas corpus from the English common law. In England the writ was issued in the name of the monarch. When the original thirteen American colonies declared independence, and became a republic based on popular sovereignty, any person, in the name of the people, acquired authority to initiate such writs. The U.S. Constitution specifically includes the habeas procedure in the Suspension Clause (Clause 2), located in Article One, Section 9. This states that "The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it". Section 9 is under Article 1 which states, "Legislative Powers herein granted shall be vested in the Congress of the United States ..."
The writ of habeas corpus ad subjiciendum is a civil, not criminal, ex parte proceeding in which a court inquires as to the legitimacy of a prisoner's custody. Typically, habeas corpus proceedings are to determine whether the court which imposed sentence on the defendant had jurisdiction and authority to do so, or whether the defendant's sentence has expired. Habeas corpus is also used as a legal avenue to challenge other types of custody such as pretrial detention or detention by the United States Bureau of Immigration and Customs Enforcement pursuant to a deportation proceeding.
Presidents Abraham Lincoln and Ulysses Grant suspended habeas corpus during the Civil War and Reconstruction for some places or types of cases. Following the September 11 attacks, President George W. Bush attempted to place Guantanamo Bay detainees outside of the jurisdiction of habeas corpus but the Supreme Court of the United States overturned this action in Boumediene v. Bush.

Equivalent remedies

Poland

In 1430 King Władysław II Jagiełło of Poland granted the Privilege of Jedlnia, which proclaimed, Neminem captivabimus nisi iure victum ("We will not imprison anyone except if convicted by law"). This revolutionary innovation in civil libertarianism gave Polish citizens due process-style rights that did not exist in any other European country for another 250 years. Originally, the Privilege of Jedlnia was restricted to the nobility (the szlachta), but it was extended to cover townsmen in the 1791 Constitution. Importantly, social classifications in the Polish–Lithuanian Commonwealth were not as rigid as in other European countries; townspeople and Jews were sometimes ennobled. The Privilege of Jedlnia provided broader coverage than many subsequently enacted habeas corpus laws because Poland's nobility constituted an unusually large percentage of the country's total population, which was Europe's largest. As a result, by the 16th century, it was protecting the liberty of between 500 thousand and a million Poles.

Roman-Dutch law

In South Africa and other countries whose legal systems are based on Roman-Dutch law, the interdictum de homine libero exhibendo is the equivalent of the writ of habeas corpus. In South Africa it has been entrenched in the Bill of Rights, which provides in section 35(2)(d) that every detained person has the right to challenge the lawfulness of the detention in person before a court and, if the detention is unlawful, to be released.

World habeas corpus

In the 1950s, American lawyer Luis Kutner began advocating an international writ of habeas corpus to protect individual human rights. In 1952 he filed a petition for a "United Nations Writ of Habeas Corpus" on behalf of William N. Oatis, an American journalist jailed the previous year by the Communist government of Czechoslovakia. Alleging that Czechoslovakia had violated Oatis's rights under the United Nations Charter and the Universal Declaration of Human Rights and that the United Nations General Assembly had "inherent power" to fashion remedies for human rights violations, the petition was filed with the United Nations Commission on Human Rights. The Commission forwarded the petition to Czechoslovakia, but no other United Nations action was taken. Oatis was released in 1953. Kutner went on to publish numerous articles and books advocating the creation of an "International Court of Habeas Corpus".

International Human Rights Standards

Article 3 of the Universal Declaration of Human Rights provides that "everyone has the right to life, liberty and security of person". Article 5 of the European Convention on Human Rights goes further and calls for persons detained to have the right to challenge their detention, providing at article 5.4:
"Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful."

Provisional remedy

The purpose of a provisional remedy is the preservation of the status quo until final disposition of a matter can occur.
Under United States law, FRCP 64 provides with several types of seizure (e.g. garnishment, replevin, attachment) that a Federal Court may use pursuant to state law. FRCP 65 concerns Temporary Restraining Order (may be made ex parte) and preliminary injunction (requires some hearing).
In order to establish the constitutionality of a provisional remedy, two cases must be distinguished. The 3-part test established in Matthews determines whether a prejudgment remedy meets the constitutional requirements when Government seeks deprivation on its own initiative. The court must take into consideration the private interest of the party against whom the remedy is sought, the risk of erroneous deprivation as well as the probable value, if any, of addition or substitute safeguards and, the moving party's interest.
The 3-part test established in Connecticut v. Doehr determines whether a prejudgment remedy meets the constitutional requirements when Government action is applied to a suit between private parties. The due process analysis involves the same requirements as set forth in Matthews.
The court must also take into account whether there are exigent circumstances, a bond requirement, a judicial assessment, a detailed statement of factual basis, and a prompt post-seizure hearing.

CPC REMEDIES