Law and War: Individual Rights, Executive Authority, and Judicial Power in England during World War I

By Vorspan, Rachel | Vanderbilt Journal of Transnational Law, March 2005 | Go to article overview
Save to active project

Law and War: Individual Rights, Executive Authority, and Judicial Power in England during World War I


Vorspan, Rachel, Vanderbilt Journal of Transnational Law


ABSTRACT

In this Article Professor Vorspan examines the role of the English courts during World War I, particularly the judicial response to executive infringements on individual liberty. Focusing on detention, deportation, conscription, and confiscation of property, the Author revises the conventional depiction of the English judiciary during World War I as passive and peripheral. She 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 freedom. 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 vigoroztsly 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 jurisdiction to review governmental conduct will not safeguard rights during "wartime" without a staunch judicial commitment to the substantive value of personal freedom.

TABLE OF CONTENTS

  I. INTRODUCTION
 II. LEGAL SOURCES OF EXECUTIVE AUTHORITY
     IN WARTIME
III. JUDICIAL WARRIORS AND INDIVIDUAL LIBERTY
     A. Construing Emergency Statutes:
        Warmaking Beyond Parliamentary Intent
        1. Internment: Drawing Unprecedented
           Inferences from Silence
        2. Conscription: Policymaking Through
           Selective Construction
           a. Conscientious Objectors
           b. Dual Nationals
        3. Deportation: Circumventing
           Parliamentary Restraints
        4. Exclusion: Setting Minimal
           Standards
        5. The Irish Rebellion: Manipulating
           Technicalities
     B. Stretching the Boundaries of the Royal
        Prerogative
 IV. THE FORMAL ASSERTION OF JUDICIAL POWER
     A. Preserving the Vitality of Habeas Corpus
     B. Imposing Selective Reasonableness Review
     C. Requiring art Adequate Factual Showing
     D. Applying Special Scrutiny to "Judicial"
        Acts of the Executive
  V. JUDICIAL ACTIVISM IN PROTECTING PRIVATE
     PROPERTY
     A. The Framework of Wartime Restrictions
        on Property Rights
     B. Requisitioning Private Property: The
        Judicial Response
        1. The Compensation Controversy
        2. Wartime Taxation Without
           Representation
        3. Private Property and Judicial Access
 VI. THE MORAL IDEOLOGY OF THE WARTIME JUDICIARY
     A. The Hierarchy of Moral Respectability
     B. Ranking Values: Property Trumps Morality
VII. CONCLUSION

I. INTRODUCTION

During World War I the English government imposed severe "emergency" limitations on individual freedom based on a presumed interest in national security, justifying them under both enabling legislation and as an exercise of inherent executive power. In particular, the government for the first time pursued a policy of wide-scale preventive detention not only of aliens but of citizens. To prosecute the wars against terrorism and Iraq, the government of the United States in recent years has adopted similarly restrictive domestic policies. The English experience during the first global war of the twentieth century thus resonates with our own, and it offers some deeply troubling lessons.

This Article suggests that maintaining a judicial process to determine the legality of executive conduct will not by itself guarantee the preservation of individual liberty. The English courts during World War I were adept at conserving their formal authority to establish limits on the executive.

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
Loading One moment ...
Project items
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

Cited article

Law and War: Individual Rights, Executive Authority, and Judicial Power in England during World War I
Settings

Settings

Typeface
Text size Smaller Larger
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

While we understand printed pages are helpful to our users, this limitation is necessary to help protect our publishers' copyrighted material and prevent its unlawful distribution. We are sorry for any inconvenience.
Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.

Are you sure you want to delete this highlight?