Some years ago, I picked up a book on the Magna Carta thinking that it would come in handy at some point. That point seems to be now.
As arguments rage over the past weeks about the rule of law, including how it can be used as a convenient fig leaf, the history of the Magna Carta provides a lens for critical analysis.
They say history repeats itself. Or mirrors itself.
A quick run-down on the rule of law
The rule of law is a big topic to grapple with. It’s an all-encompassing concept which doesn’t just relate to one aspect of the criminal standard, such as the presumption of innocence.
At its heart, the rule of law is “the principle that every person and organisation, including the government, is subject to the same laws”.
According to the legal historian A.V. Dicey, the rule of law requires that:
- governments act by law rather than arbitrarily;
- governments act only where they have specific legal authority to do so; and
- anyone can be punished only for a breach of the law, and not otherwise (with an aspect of this principle being that no one is above the law).
Many point to the Magna Carta as the source of the rule of law.
Magna Carta, a reflection of changing times
“Given by our hand in the meadow which is called Runnymede, between Windsor and Staines, on the fifteenth day of June, in the seventeenth year of our reign.”— Magna Carta
“Magna Carta” is Latin for “Great Charter”. Its importance to future governments and society was clearly unforeseen at the time it was signed by King John in Runnymede, England (near today’s Heathrow Airport) on 15 June 1215.
Rather, the concerns then were far more immediate. King John’s practices of arbitrarily seizing land for his coffers, holding those who opposed him as hostages, the corruption of his agents (including ministers, bailiffs, sheriffs and so on), as well as the significant tax he sought to impose in 1207 led to defection and uprising within the landowning baron ranks.
The Magna Carta, above all, was primarily concerned about money. As Carpenter describes it, “[i]ts overwhelming aim was to restrict the king’s ability to take it from his subjects.” A second aspect was law and justice:
“The Charter wanted to make the king’s dispensation of justice fairer and more accessible, while at the same time preventing his arbitrary and lawless treatment of individuals.” — David Carpenter, Magna Carta, p 24.
A duplicitous sovereign
In 2015, various (nerdy) circles celebrated the 800th anniversary of the Magna Carta.
Less well-known is the fact that King John sought to renege on his promises in a short space of time. Little more than a month after signing the Magna Carta, King John asked the pope to quash it. England descended into civil war, with some of King’s barons offering the throne to Prince Louis, the eldest son of the king of France.
King John died in October 1216. He left his nine-year-old son, Henry III, in charge of a greatly reduced kingdom. In a bid to win the allegiance of the rebels, governors to Henry III immediately reissued a new version of the Magna Carta. The Charter was reissued again in 1217 and then for the third and final time in 1225.
(Prepare for more celebrations in 2025.)
Out of the Magna Carta’s approximately 3,550 words, the most prominent are in chapters 39 and 40, being:
No free man is to be arrested, or imprisoned, or disseised, or outlawed, or exiled, or in any way destroyed, nor will we go against him, nor will we send against him, save by the lawful judgement of his peers or by the law of the land.
To no one will we sell, to no one will we deny or delay, right or justice.
Less well known are the following:
We will not make justices, constables, sheriffs or bailiffs, save from those who know the law of the kingdom and wish to observe it well.
All evil customs of forests and warrens, and of foresters and warreners, sheriffs and their ministers, riverbanks and their keepers, are to be immediately inquired into in each county by twelve sworn knights of the same county, who are to be elected by upright men of the same county, and within forty days after the inquiry has been made, they are to be wholly abolished by them, so that they are never revived, provided that we, or our justiciar, if we are not in England, know about it beforehand.
Turns out our medieval counterparts had their own version of ICAC and a pretty short timeframe to get to the bottom of things.
Magna Carta’s failings
For all of its modern-day pomp and circumstance, the Magna Carta had serious failings.
“[The Magna Carta] … as originally conceived, certainly did not offer equal protection to all the king’s subjects. It was, in many ways, a selfish document in which the baronial elite looked after its own interests.”— David Carpenter, Magna Carta, Preface
Women and the unfree
In its original form, the charter offered little to no protection for women and unfree peasants who made up the largest section of the population. The grant of liberties was to, in the language of the Magna Carta, “to all the free men of our kingdom”.
To the extent that protection was given, it was through a form of Magna Carta “trickle-down” stipulating that all the customs and liberties ceded by King John were to be observed by everyone in the kingdom towards their men.
While the definition of “men” became more inclusive over time to extend to women and the greater population of England, the Magna Carta’s history provides insight on how laws drafted by those in power can exclude large portions of society.
Built-in gender bias
No woman is mentioned by name in the Magna Carta.
Aside from the 19 references to “man” and “men” or equivalent, there is only one reference to women in chapter 54 with the sole purpose of reducing women’s standing in law. It builds in a historical gender bias with hangovers to our modern day:
In other words, a woman’s testimony when accusing an individual of a crime was treated as lesser than that of a “free man”.
Carpenter notes that “if a woman did make an appeal for the killing of someone other than her husband, the accused was not to be imprisoned prior to trial, as would have been the case if the accuser was a man.”
Do you not speake Latin?
Finally, something which is close to heart here at Legal Brew is accessibility to law.
The Magna Carta was originally written in Latin, then translated to French—the language of the nobility in England. For the next few hundred years, the number of people who could understand the Magna Carta was relatively small given that everyone else spoke English. The first English language translations only appeared in the 16th century.
So what can we take away?
The Magna Carta provides a snapshot in time, but continues to present lessons for our modern day.
It shows us that any legal proclamation, whether seeking to rely on the concept of rule of law or other, can be self-interested—and exclude significant groups in society.
On the flip side, the Magna Carta highlights the potential for evolution and reform. For one, women and the unfree were not its direct beneficiaries in 1215 but were eventually included. We cannot accept the premise of chapter 54 today, though the lessening of women’s testimonies continues to be a pervasive problem in modern society and our legal system.
The Magna Carta shows us that conceptions of law, justice and government can change over time to reflect expectations in society, as it did in 1215 in response to a sovereign who wielded coercive power. It also shows us that change is hard-fought.
While the self-interested point to a narrow interpretation of the rule of law, at its heart, chapter 40 provides the clearest enunciation of what the rule of law requires:
To no one will we sell, to no one will we deny or delay, right or justice.
- British Library, “English translation of Magna Carta” (28 Jul 2014).
- Catriona Cook, Robin Creyke, Robert Geddes and David Hamer, Laying Down the Law (LexisNexis Butterworths, 7th ed, 2009). Or check out the latest edition.
- David Carpenter, Magna Carta (Penguin Classics, 2015).
- David Carpenter, “Magna Carta – 800 years on”, The Guardian (online, 3 Jan 2015).
- Peter Butt, Concise Australian Legal Dictionary (LexisNexis Butterworths, 3rd ed, 2004).
- Josh Bornstein, “Coalition’s concern for rule of law a ‘convenient fig leaf’”, The Sydney Morning Herald (online, 9 March 2021).
- In art, Magna Carta (An Embroidery) is a 2015 work by English installation artist Cornelia Parker. The artwork is a representation of the complete text and images of the Wikipedia entry for Magna Carta as published on 15 June 2014. Multiple people, from judges to prisoners, whistleblowers to well-known personalities were invited to embroider the piece. Source: Wikipedia entry