In this chapter I will take up two ways of thinking of habeas corpus that are more expansive than the minimalist or stripped-down version of habeas corpus discussed in the previous chapter. There are various versions of a non-minimalist approach to habeas corpus, including what has come to be seen in the US as the incorporation of the Bill of Rights into the right of habeas corpus. I will be especially interested in this chapter in talking about habeas corpus in the context of judicial review. Habeas corpus as judicial review can come in various forms as well, but what all forms have in common is that habeas corpus would trigger some kind of examination of the situation of the detainee by a court or court official. In the end I shall argue for a limited role for judicial review in our understanding of habeas corpus.

I begin with a section on why the minimalist version may not get quite enough protection to be a true gap-filler on the way toward partially constituting an international rule of law. In the second section I will discuss how habeas corpus can be seen to be constitutive of due process in a somewhat more expansive way than was discussed in the last chapter. In the third section I will discuss a maximalist version of habeas corpus, as epitomized today in the way that US jurisprudence makes habeas corpus virtually synonymous with judicial review of all rights questions that could concern the plaintiff. In the fourth section I will express reservations about having habeas corpus regarded in this expansive way. In the fifth section I discuss the need for at least the idea of habeas corpus as a due process right in global justice.