Magna Carta is, we are told, “important”. It is “fundamental”. It is sometimes even “important and fundamental”.
Is it? And if so, how?
With the 800th anniversary coming up next year of the sealing of the original document (though what we commonly call Magna Carta is actually from 1297 and not 1215), it seems as good a time as any to set a challenge. So here it is:
When was the last legal case, if any, that was determined by the fair trial right set out at Article 29 of Magna Carta?
Put differently: when was the most recent English legal case (either at first instance or on appeal) where the “ratio” was Article 29 of Magna Carta? That the outcome of the case would have been different but for the application of Article 29 of Magna Carta?
Article 29 provides:
No Freeman shall be taken or imprisoned, or be disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed; nor will We not pass upon him, nor condemn him, but by lawful judgment of his Peers, or by the Law of the Land. We will sell to no man, we will not deny or defer to any man either Justice or Right.
There will be those who say this is “to miss the point”. I call them “Magna Carta symbolists” (as “Magna Carta sentimentalist” would be perhaps pejorative). For the Magna Carta symbolist, it does not matter that few if any have ever relied on the fair trial right set out at Article 29, it is still symbolic all the same.
Against this view there are (I think) two points.
First, when a symbol has no substance, then it can be easily contested – even contradicted.
For example: even though politicians and judges often cite Magna Carta as the “cornerstone” or “foundation stone” of liberty, no voter or litigant ever gets to rely on this supposed right. In this way, Magna Carta is just as “symbolic” of the lack of enforceable rights than the basis of such rights, if not more so.
Second, it is a sorry set of affairs when the supposed foundation of one’s liberties is of no practical use. Yes, symbols can be important – and, following Bagehot, some parts of the constitution are perhaps more dignified than efficient – but that surely should not be the case with the right to a fair trial. A US citizen is not content to merely adore the Bill of Rights; he or she can got to a court and insist on his or her rights being recognised.
In fact, we are so used to being told that Magna Carta is “important” and “fundamental” that we have not noticed that what we are nodding along with is not worth anything at all. But because we think it is s “important” and “fundamental” we shrug at the prospect of having enforceable rights.
As it stands, there is nothing whatsoever stopping Parliament from legislating in breach of Magna Carta, and while judges garnish their judgments and speeches with references to Magna Carta, they will always either groan at or mock any party to a case that dares to rely on it in court.
So as a “Magna Carta empiricist” (or “realist”), this blog poses the challenge: what has Article 29 of Magna Carta ever done for us?
My FT post on the myth of Magna Carta (free to access but registration required).
(The above challenge is in respect of English law (which also normally applies to Wales); but the challenge is also posed for any jurisdiction where Magna Carta forms (or has formed) part of the law. I am not qualified in Scots or Northern Irish law, and so do not know whether Magna Carta forms part of those legal systems. Similarly, I am not able to say if it forms the law of the United States, the rest of the former British Empire/Commonwealth, any other common law jurisdiction, or even that of Jersey, Guernsey, or the Isle of Man. But if Magna Carta is somehow part of the law in any jurisdiction, I would be delighted to hear if it has ever been relied on in an actual case.)
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