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Magna Carta's spotlight on today's political arbitrariness


King John refusing to sign the Magna Carta when first presented to him

Few documents in the realm of liberties warrant as much discussion as the Magna Carta, and three choice clauses remain valid and continuous.

The charter enshrined the autonomy of the English Church in its first provision. Provisions also make reference to the core principle of justice – 'To no man will be sell, or deny, or delay, right or justice' (Clause 40).

Most famously, in clause 39, it is stated that, 'No free man shall be taken or imprisoned or dispossessed, or outlawed or exiled, or in any way destroyed, nor will we go upon him, nor will we send against him except by the lawful judgment of his peers or by the law of the land.'

It is a stunningly direct statement on the value of the jury, and the role of judicial scrutiny, both of which have been gnawed at over the centuries.

Much of the charter that assumed relevance was not the Runnymede version of 1215 but 1297, when it was entered into the statute books by Edward I. (Australia, incidentally, possesses one of four copies of that version.) There were four original versions – that of 1215, followed by 1216, 1217 and 1225. 'It is never enough,' argued the jurist Frederick Maitland in his constitutional history of England, 'to refer to Magna Carta without saying which edition you mean.'

Underlying it was a transformation of the feudal world. King John needed income in a money economy that was shrinking royal revenues. Agricultural prices were rising, and mercenaries were coming into vogue. The squeeze, alleviated by a range of revenue raising measures, prompted a noble revolt.

What it became, distilled over time, was something of a legal weapon, a charter of liberties that also bound rulers, modifying the ambit of executive power with an assortment of protections. The exercise of power, in short, entails accountability. Sir Edward Coke, as Chief Justice, took it as a foundational document in challenging the rule of the Stuart kings, establishing principles such as the supremacy of Parliament while targeting the notion of absolute monarchy. King Charles I would be facing its stern tones in his trial in 1649. Accountable power, it would seem, or death.

The Magna Carta is, however, easy to romanticise with legal whimsy. Within the dying feudal system, it would have been impossible to have imagined such a document applying to most of the social strata of the time. It was deeply conservative, echoing the customary functions of common law scrutiny.

It was far from democratic, and far from representative. Like other instruments outlining rights, it arose from circumstances of pure opportunism – Barons Robert Fitzwalter and Saer de Quincy were not reputable subjects, and there was a general sense that the agreement constituted a treaty of truce – a suitable prelude to war.

The barons, for the most part, were a reactionary bunch, quibbling with King John’s methods of raising revenue and any attempts to extend royal jurisdiction. As for the monarch, he immediately demonstrated the contempt that rulers have shown towards the document since its inception, sending messengers to the Pope to deem the charter null and void. The Pope duly obliged 10 weeks afterwards, hurrying it into mistaken oblivion by deeming it 'shameful, demeaning, illegal and unjust'.

In remembering the document’s creation as a break on arbitrary rule and power, moves to undermine such principles as the rule of law are prescient. Rulers have cited the Magna Carta’s significance even as they attempt to undermine human rights, using the language of anachronistic absolutism.

Institutionally, this approach is far from surprising. Britain’s Prime Minister, David Cameron, has argued that the Human Rights Act needs moving over in favour of a British bill of rights. In Britain, 'the good name of human rights has sometimes been distorted and devalued.’ Australia’s parliament commemorates the Magna Carta’s birthday even as it extends the reach of national security laws and endorses a draconian refugee policy.

Dismissing the Magna Carta as a mainly obsolete, distant document would ignore the train of political and legal thinking that the charter set in motion. It runs into the magnificent, if sometimes mystifying notion of the common law, a point remarked upon by Sir William Blackstone in his commentaries.

It proved a significant document to the drafters of the American Constitution, inspiring the checks and balances that would become the republican model. And it remains valid to holding rulers in tow, keeping them to account even as they purport to protect the rights and liberties of citizens. Governments ignore it at their peril.

Binoy KampmarkDr Binoy Kampmark is a former Commonwealth Scholar who lectures at RMIT University, Melbourne.

King John Magna Carta image by Shutterstock.

Topic tags: Binoy Kampmark, civil liberties, national security, freedom, democracy, liberty, politics



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Existing comments

Magna Carta gave birth to the idea that the power of the state must be limited in order that individual liberty could flourish. It changed the relationship between the state and the individual. William Pitt told the House of Commons in 1763: “The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail, its roof may shake; the wind may blow through it; the storms may enter….but the King of England cannot enter.” Nelson Mandela appealed to Magna Carta during his 1964 trial, and it was pinned to the Democracy Wall at Tiananmen Square.
But the principles of Magna Carta are under attack, often under the guise of implementing ‘human rights’. Amnesty International, originally set up to protect those imprisoned for conscientious beliefs, now opposes conscience protection for medical workers who object to abortion. In Britain, Tory plans to scrap the 1998 Human Rights Act because it has had the effect of actually eroding human rights is opposed by Amnesty and human-rights campaigners who say it is a betrayal of Magna Carta, while the barrister Jon Holbrook recently argued that new so-called human rights have actually hampered the fight for freedom.

Ross Howard | 16 June 2015  

Great article, readers may also be interested in this one: https://newmatilda.com/2015/06/15/800-years-later-we-owe-magna-carta-vigilance MK

Matthew Keogh | 17 June 2015  

Ross Howard: "Magna Carta gave birth to the idea that the power of the state must be limited in order that individual liberty could flourish. It changed the relationship between the state and the individual."... It is often not realised from what .a low base the rights of the individual was coming, when Kings and Emperors could decide what beliefs a person could hold, and in ancient Rome even 'loyal' citizens could shout "Death for the Atheists" when Christians rejected belief in the pagan Roman 'gods'. Of course in some countries there is still a death penalty for converting to a different faith. Mankind still has a long way to go.

Robert Liddy | 17 June 2015  

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