What is habeas corpus?
The writ of habeas corpus orders a custodian to produce a detained person in court and justify the detention; if it is unlawful, the court orders release. Latin for "you shall have the body," it is the oldest procedural safeguard of personal liberty in Anglo-American law, known as the Great Writ.
- Nature
- Judicial review of detention
- Origin
- English common law, Habeas Corpus Act 1679
- U.S.
- Art. I, §9, cl. 2 (Suspension Clause)
- Korean analogue
- Habeas Corpus Act (2008), detention review
History
Rooted in medieval writs, it was strengthened by the Habeas Corpus Act 1679 to stop detention without cause. The U.S. Constitution provides that the privilege "shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." Lincoln suspended it during the Civil War, and Congress authorized suspension in 1863.
Habeas asks "why are you holding this person," not "is this person guilty." It tests only the lawfulness of custody, which is why it matters most to people held without trial.
Modern U.S. use
- Federal habeas petitions by state prisoners alleging constitutional violations (28 U.S.C. § 2254), narrowed by AEDPA (1996).
- Immigration detention challenges.
- Guantánamo: in Boumediene v. Bush (2008) the Supreme Court held detainees have the constitutional privilege.
Korea and Japan
| Country | Mechanism | Scope |
|---|---|---|
| U.S. | Habeas corpus | All custody |
| Korea | Review of arrest/detention (Const. art. 12(6)) | Criminal detention |
| Korea | Habeas Corpus Act (in force 2008) | Non-criminal confinement such as psychiatric or care facilities |
| Japan | Habeas Corpus Act (1948) | Restraint without due legal process |
See U.S. criminal procedure and the Bill of Rights.
Frequently asked questions
- Who files a habeas petition?
- The detained person or someone acting on their behalf.
- Can it be suspended?
- Only in rebellion or invasion when public safety requires.
- Does Korea have it?
- Korea’s Habeas Corpus Act and detention review serve similar functions.
References
- U.S. Const. art. I, § 9, cl. 2.
- Habeas Corpus Act 1679, 31 Cha. 2 c. 2 (England).
- Boumediene v. Bush, 553 U.S. 723 (2008).
- 인신보호법(법률 제8724호, 2007. 12. 21. 제정, 2008. 6. 22. 시행). 국가법령정보센터 https://www.law.go.kr/