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Dj Clark and G McCoy The Most Fundamental Legal Right: Habeas Corpus in the Commonwealth (Clarendon Press Oxford 2000)

The English common law tradition flourishes in many corners of the world. One of its most notable exports is the writ of habeas corpus. David Clark and Gerard McCoy’s The Most Fundamental Legal Right: Habeas Corpus in the Commonwealth traces the evolution of habeas corpus beyond England’s shores. The authors provide a well-written, and thoroughly researched, comparative account of the great writ. In the authors’ view, and as the title to their book proclaims, habeas corpus protects ‘the most fundamental legal right’, that of personal liberty and freedom from arbitrary detention. While tolerant of the political and cultural differences that are bound to produce distinctive local interpretations, adaptations and variations, the authors adhere to the view that there are internationally acceptable minimum human rights standards and that habeas corpus plays an important role in their vindication. The book provides a valuable study of many difficult doctrinal conundrums posed by the use of an ancient remedy in the diverse, modern legal world of the Commonwealth. The approach, however, is not narrowly technical or legalistic. The use and development of the writ is examined in the light of the widely divergent political contexts that prevail throughout the Commonwealth. As the authors note, ‘habeas corpus cannot be understood in practice apart from the political and legal environment in which it operates.’1 After introducing their subject and explaining the comparative approach that they offer, Clark and McCoy explore the ‘myth and reality’ of habeas corpus in Chapter 2. They take a hard-nosed and pragmatic approach, firmly rooted in the prevailing reality of the operative legal and political culture. Little patience is shown for what the authors regard as efforts to romanticise the virtues of the writ by Dicey and others: ‘Many of the claims made about the writ are either nonsense or are misleading.’2 The authors point out that ‘there is little that can be done by   Oxford University Commonwealth Law Journal 287