The legacy of Magna Carta has been celebrated with an outpouring of speeches from senior members of the judiciary, lauding the symbolic agreement but also cautioning about historical over-interpretation.
The document signed by rebel barons and sealed on behalf of King John at Runnymede 800 years ago on Monday was swiftly repudiated, revised and reissued, ensuring that its true legal inheritance has been contested repeatedly over the centuries.
That the anniversary coincides with the Conservative government’s pledge to rewrite the UK’s relationship with the European convention on human rights has added a contemporary edge to the antiquarian debate.
What does Magna Carta say?
Magna Carta was a product of its time. The medieval knights and lords who gathered in June 1215 assembled a long list of grievances to present to the king. Some, however, resonate to this day, such as the declaration in clause 40 that: “To no one will we sell, to no one deny or delay justice.” Others suggest complaints more specific to the 13th century, such as clause 33, which demands the removal of all fish weirs on the Thames and throughout England; and clause six, which prevents heirs being given in marriage “to someone of lower social standing”.
Are any clauses in Magna Carta still in force in British law today?
Four clauses are commonly agreed to remain in law: clause one guaranteeing that the “English church” shall be “free and shall have its rights undiminished”; clause 13 permitting the City of London to “enjoy all its liberties and ancient customs”; and clauses 39 and 40, which are jointly seen as embodying what have become the rights of habeas corpus – banning arbitrary detention – and trial by jury.
Was Magna Carta the founding charter of modern parliamentary democracy?
The former lord chief lustice Lord Judge has noted that the word “parliament” does not appear in the document. Nor can the word “democracy” be found and “Magna Carta” is not even in the text.
Those absences do not deter enthusiasts. Lady Justice Arden, an appeal court judge, said its significance was not so much as a piece of parchment but as a “defining moment in English constitutional history”. Its spirit and clauses had been absorbed into common law so that Magna Carta “has remained alive in our national consciousness”, she said.
Did it establish that the monarch is not above the law?
That both the king, and by extension the government, must behave in accordance with the law is one of the constitutional principles that emerges from Magna Carta. Lord Sumption, a medieval historian and supreme court justice, has argued that the principle was “generally accepted for at least a century before 1215” and the dispute was “about what the law was”.
Lady Hale, the deputy president of the supreme court, acknowledges that “historians tend not to be so excited” because they see it as “not so very different from the charters of other kings, and that much of its contents were simply reaffirming generally understood principles of feudal law”. She adds, however, that Magna Carta confirmed “the idea that government as well as the governed is bound by the law”.
Did Magna Carta create the precedent that there should be no taxation without representation?
Clause 14 of the charter required the king to “obtain the common counsel of the kingdom for the assessment of aid”. In effect, it established that those forced to pay taxes should have a voice in deciding what they should be used for. “It was disregarding that principle that lost us the American colonies getting on for six centuries later,” Hale said.
Why do Americans revere Magna Carta far more than the English?
Magna Carta was resurrected by the 17th century chief justice, Sir Edward Coke, as an ancient source of rights and it was deployed in legal battles to resist excessive royal powers. Early colonists took Magna Carta and wrote their interpretation of its clauses into their founding charters.
“Coke, who was widely regarded as the most learned lawyer of his day, rescued Magna Carta from obscurity and transformed it from a somewhat technical catalogue of feudal regulations into the foundation document of the English constitution,” Sumption said. “It is really Coke’s idea of Magna Carta that has been exported to the world, and not the version that King John or his barons would have recognised.”