Habeas and the Accumulation of Judicial Power

Abstract

This article situates Chapter 3 of Nasser Hussain’s The Jurisprudence of Emergency within the broader reassessment in recent years of the history of habeas corpus in England during the seventeenth, eighteenth, and nineteenth centuries. As it demonstrates, not only was Hussain ahead of his time in highlighting the means by which habeas became a tool not for the promotion of individual rights, but for the accumulation of judicial power and the concomitant normalization of emergencies; one can also see clear reflections of his analysis in the jurisprudence of U.S. courts arising out of the detention of non-citizens at Guantánamo.