Document Type

Article

Publication Title

Vanderbilt Journal of Transactional Law

Volume

38

Publication Date

2005

Keywords

Individual Liberty, English courts, World War I

Abstract

This Article examines the role of the English courts during World War I, particularly the judicial response to executive infringements on individual liberty. Focusing on the areas of detention, deportation, conscription, and confiscation of property, the Article revises the conventional depiction of the English judiciary during World War I as passive and peripheral. It argues that in four ways the judges were activist and energetic, both in advancing the government's war effort and in promoting their own policies and powers. First, they were judicial warriors, developing innovative legal strategies to legitimize detention and other governmental restrictions on personal. Second, they relentlessly preserved their own institutional power and authority, consistently affirming the right to review government conduct through the writ of habeas corpus. Third, in stark contrast to their treatment of individual liberty, they vigorously upheld property rights against executive power. Finally, they suffused their decisions with a particular wartime moral ideology based on both national origin and traditional concepts of individual character. Their success in achieving these priorities while failing to protect individual liberty offers the troubling contemporary lesson that maintaining the jurisdiction of the courts to review governmental conduct will not safeguard rights in wartime without a staunch judicial commitment to the substantive value of personal freedom.

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