A book on the history of habeas corpus, properly titled The Power of Habeas Corpus in America, was recently reviewed by the Freeman magazine produced by the Foundation for Economic Education (FEE). The title of the article was The “Great” Writ, and it examined the “400 years of legal history” detailed in the book before concluding that “the writ is worthless in a society that does not value freedom.”
This statement is valid.
Just as government intervention in issues such as gay marriage and medical marijuana further solidifies belief in centralized action, so too does the use of the writ by government further cement the authority of indefinite detention. By viewing governmental action through the lens of the Foucauldian, paradoxical nature of power, such an analysis can be understood.
However, this statement goes much further. By referencing “a society that does not value freedom,” the reviewer correctly states that it’s not the justice system or government that’s to blame, but society in general. When charges of nonviolent crimes are supported, when the mere thought of suspicion is enough to justify surveillance to the public, when whistleblowers are not defended, when it’s debated “over who has the authority to suspend the writ’s privilege,” and where there’s a culture bred on the importance of governmental detention, there is a society that does not hold freedom in high esteem.
The question remains, what type of freedom should we value in order to gain the most we can from the writ and the justice system? Certainly, many groups throughout history, including our own, have talked about themselves as being free, only to take those freedoms away from those who are outside the borders of common society. What are the specific conditions that must exist to protect the writ and create a just legal system? The author examined only the last 400 years of the writ, but the best perspective can be provided through a wider picture.
The most famous trial in the Ancient World was that of Socrates in 399 BC (I did say that I’d widen the picture)! Although the writ did not itself exist, for reasons specified below, the trial can be used to examine the justice system of Ancient Athens and assess whether it embodied the type of freedom that we are seeking. The court system worked as such:
An accuser would first present his case to the archon of the city (who was chosen by lot each year). If the matter was deemed important enough, the archon would set a date for the trial. There were no lawyers and there was no judge; instead the plaintiff and defendant themselves were present at the trial, as well as a jury of either 51, 501, or 1501 randomly selected jurors. The trial was to last no more than one day—each side had three hours to present their argument. Afterwards, the jury would vote, without deliberation, in a closed ballot, to determine if the defendant was innocent or guilty. If a majority voted guilty, then the sentencing period would begin. The accuser and now-convicted individual would each propose a punishment that they felt was appropriate. The jury then voted again for one of the two punishments.
At the time, this was considered the most just and free method because it directly appealed upon the will of the city. The main mission that justice had was to root out anything contrary to the will of the city, such as bribery, false testimony, and centralized control. Even Socrates agreed that the city-state was all, comparing the relationship of the individual to the state as one of child to father. However, this made it that whatever was perceived as good for the city became just, and vice-versa. This made the charge of “corrupting the youth,” laughable in the modern day, have damaging implications.
Such a view on law and individual rights continued into the Roman era where the “mos maiorum,” or the morals of the ancestors, laid the precedent for all legal cases. Closer to our times, it was William Blackstone who created the “bad tendency” test. This test helped continue to suppress basic rights such as free speech and laid the foundations to persecutions for other victimless crimes.
All of these societies saw law and government through either a deontological or teontological perspective. The first alleged duty was to the state. One had the freedom to follow the state and to defend against those who went against the state’s laws and fundamental values. As direct allegiance to the state began to decline in the Enlightenment, we saw the emergence of the second perspective, utilitarian in nature, in which the goal justified the means if the goal brought a “greater good”. It is still strong in the modern day, allowing for the invasions of individual rights in various forms from drug criminalization to indefinite detention in Guantanamo.
Neither of these perspectives is compatible with the true nature of freedom, which must provide the most autonomy to an individual without legalizing harm to the individual or their property. As long as we continue the legacy of regarding the individual as under the state, whether duty bound to it or its subject in a social experiment, habeas corpus and the justice system will be viewed as nothing more than a tool to be used by the state and society. It is the individual who is sovereign over himself, holding his life, liberty, and property inviolable.
To return to the question: society must support a concept of freedom that is accepting of the individual. The article calls this approach “more libertarian,” though both are the same. For millennia, the right to one’s life was recognized. Yet various interests fought for the power of that life. It is time to break free and realize what freedom truly entails. A society that can accomplish this will be the most productive in the history of the world.