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What is a Writ?

Updated on April 16, 2010

A writ, in Anglo-American law, a documentary order issued in the name of a court or of an executive officer, directing the person to whom it is addressed to do or refrain from doing a particular act described in the writ. The two principal categories are prerogative writs and writs of right. Prerogative writs, frequently referred to as extraordinary remedies, are issued in the discretion of the court upon a showing that no other remedy adequate to the circumstances is available. Common examples of prerogative writs are mandamus, prohibition, quo warranto, habeas corpus, and certiorari. The writ of mandamus is a command to a public official to perform a duty required by his office. The writ of prohibition forbids an inferior court or tribunal from continuing to conduct proceedings over which it has no rightful authority. The writ of quo warranto is an order to show by what authority an office or franchise is held. The writ of habeas corpus, in its most common form, is an order to bring before the court a person held in custody so that the legality of his restraint may be determined. The writ of certiorari issues from a superior court in order to review the record of evidence presented in the case before an inferior court. . See also mandamus; Quo wabhanto; habeas corpus; ceh-tiorahi.

In contrast to these discretionary writs, which historically were a matter of the king's prerogative, writs of right were a category which the king was bound to issue under the terms of Magna Carta of 1215. The two main kinds of writs of right are original and judicial. Original writs were issued, without any order of court, from the King's Chancery. They are called original writs because they were the means of initiating every action at common law. The subsequent proceedings and the entire theory of the case were rigidly governed by the kind of original writ used, giving rise to the concept of the forms of action at common law (see procedure). While the system of original writs has been abolished in England and was never widely used in the United States, the "form of action" concept still has some influence on Anglo-American law in spite of widespread procedural reforms which began in the 19th century. Judicial writs are issued by courts as a means either of initiating proceedings, of furthering proceedings in progress, or of executing the judgment of the court at the conclusion of the main proceedings. The most common judicial writ for initiating proceedings is the writ of summons, which demands the appearance of a specified person at a stated time before a court or officer and which generally specifies the complaint against him.

Much of the history of Anglo-American law can be told in terms of the supplanting of one form of writ by another (or by the fictionalized use of another) and the modification or abolition of many of the older writs in an effort to develop simpler and more effective legal processes. Hence nomenclature and usage vary widely among the many legal systems in the United States and the Commonwealth of Nations.

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