Opinion A Charter For All Time

It is sometimes asserted that Magna Carta enshrines the principle of habeas corpus, that no one should be arrested or imprisoned without being offered a fair and public hearing in court. Clause 39 of Magna Carta does forbid the king from arresting or punishing anybody save “by the lawful judgement of their peers or by the law of the land”. This is at least partway on the road to the idea that arbitrary arrest is wrong, and that judgement must include an element of due process, still a fundamental principle of law. Even so, this is nothing like the detailed regulation of the king’s powers of arrest or detention that the 17th-century statute of habeas corpus went on to define. Several of the key concepts here, judgement by “peers” (that is to say by equals) or by the “law of the land”, turn out on examination to be extremely vague. Is a rich man to be judged by poor men as his equals? Should a poor man be judged by the rich? In 1215, when Magna Carta was granted, there was no written record of the majority of the laws of England, and hence no proper definition of the “law of the land”. Moreover, who was to say whether such judgement was “lawful”? In the end, the concept of lawful judgement brings us back to the king as the authority ultimately with the power to determine what constituted justice.

Besides such general points of principle, Magna Carta contained detailed provisions that to us today may appear archaic, even unjust. For example, it severely limited the right of women to plead in the king’s law courts. It restricted the rights of minorities, including Jews and all Frenchmen living in England. Further, as law, many of the clauses of Magna Carta survived in England for less than 12 weeks. By September 1215, the king was once again at war with his barons. As an attempt to broker peace, Magna Carta failed entirely. It was only when it was reissued after John’s death by his nine-year-old son, King Henry III, that Magna Carta was transformed into an iconic statement of legal principle. In the process, many of the more controversial elements of the charter of 1215 were dropped or forgotten. What emerged was a much shorter but legally more significant document, first properly formulated in 1225 and continually reissued thereafter.

Why then do lawyers and politicians, freedom fighters and religious leaders, continue to venerate this 800-year-old document? Why has it been cited by virtually every major figure in the modern democratic world? The answer lies in principle rather than point of detail. For the first time in English history, the head of state was clearly and publicly forced to acknowledge the rule of law. Government was no longer to be by the king’s whim and tyranny, but according to laws that lay beyond the power of the head of state to change. As the present British prime minister put it on June 15, speaking at Runnymede, those countries that enjoy the rule of law “tend to enjoy success”. Those without the rule of law fare less well.

Transformed from a failed peace treaty into an iconic expression of the state’s obligation to ensure justice and protect liberty, what had originally been a document for one time and one place became a statement of law and liberty with much wider resonance.

Vincent, professor of history at the University of East Anglia and member of the Magna Carta project, is author of ‘Magna Carta: The Foundation of Freedom 1215-2015’.