Habeas corpus e tecnica della "retrodatazione" nella prospettiva costituzionale inglese

The aim of the essay is to examine the methodology of “backdating” in the english constitutional system regarding the protection of rights, through the lens of the development of habeas corpus and due process of law. The right of habeas corpus was firstly recognized by the famous art. 39 of Magna Carta 1215, even if for a long time it hasn’t been capable to ensure an adequate safeguarding of the right due to arbitrary commands of imprisonment issued by the King per speciale mandatum Domini Regis using his prerogative powers. Also the several Confirmations, and the early parliamentary statutes, demonstrate that, since the beginning, the Charter has been subject of the struggle between different conceptions of the common law. Accordingly, in the XVI century, the common law courts begin to apply the guarantee of habeas corpus and due process scrutinizing the arrests provided by the prerogative courts and in the XVII century, the Great Charter, almost identified with common law principles, is invoked against the arbitrary commands of imprisonment ordered by the King. Eventually, the clash between King and Parliament leads in 1679 to the adoption of the Habeas Corpus Act instituting proper procedural measures to secure the individual right. On the base of the historical remarks made, it is observed that the methodology of “backdating” can be found also in the english legal culture in relation to the assimilation of the European Convention on Human Rights in the national legal system. Convention rights are thus traced back to the english common law tradition leaving to national courts, through a kind of constitutional review, an important interpretative area in the framework of the multilevel protection of fundamental rights. It is finally noticed that the methodology of “backdating” is also used in order to establish a system of substantially constitutional sources as a result of their historical significance.