The meaning of Magna Carta

15th June 2015

Does Magna Carta mean nothing to you, Tony Hancock once asked of his fellow jurors.

He was not the first person, or the last, to address the meaning of Magna Carta – a document, we are told, which celebrates its 800th anniversary today.

So what, if anything, does Magna Carta mean?

One way of answering this question is to break it into two.  First, what was Magna Carta?  What are we actually talking about? And second, once we have established what we are talking about, how do we assess its significance?

 

Magna Carta in myth and reality

It is not unusual for historical figures and events to have a dual existence.

Take “King Arthur” – many historians doubt that he existed at all, regardless of his vivid place in the culture and literature of subsequent generations.  And in a way, those historians pointing out the lack of a factual basis for what later caught the popular imagination are “missing the point”:  Arthur is symbolic.

Like Arthur, and many other well-known aspects of the “Merrie England” of the Middle Ages, there is a distinction between Magna Carta’s historical and mythical existences.

The actual Magna Carta is a disappointment compared with the wonderful document of later constitutional thinking.  For example, it was not called Magna Carta at the time, and it was annulled after a very short period.  What we call Magna Carta is not even from 1215 but from 1297.  It covered a whole range of things, mostly mundane: regulating forests and weirs and such like.  Some parts – for example on money-lending – do not look good or pleasant to modern eyes.

So why did it become so famous?  Contemporaries thought little of it.

 

Lord Sumption’s cricket bat

In two recent lectures, the English senior judge and medieval historian Jonathan Sumption has taken a cricket bat to the framed ornament of Magna Carta.

Both lectures are informative and readable – and fun to read: they are here and here.  They presumably surprised some of their audiences, who expected the usual misty-eyed pieties about how important this medieval document is the tradition of liberty, or what-not.

Sumption correctly rebuts – even refutes – such an unhistorical approach.  “High-minded tosh” is one phrase he uses.  He points out that that what we take as Magna Carta is not the creation of 1215 but of pundits and propagandists of early Stuart England – especially Sir Edward Coke, a lawyer and writer of genius.

Just as Shakespeare recast the reputations of many medieval kings, and just as Malory added a further gloss to the reputation of Arthur, Coke reinvented a then fairly obscure medieval charter – Magna Carta – as the glorious key to the door of English liberties.  And such was the power of Coke’s imposition, Magna Carta has remained lodged in our political and legal consciousness ever since.

 

What does Magna Carta say?

When people think of Magna Carta, they are not (usually) thinking of weirs and forests and money-lending.  They are not even thinking of two of the three parts which still remain un-repealed (the position of the church and the city of London).  They are invariably thinking of the following rousing passage:

“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”.

It is heady stuff, and it should be read aloud, perhaps to Purcell or Elgar.

But read it again carefully, and you will see it says little which is concrete at all. For as Sumption and others have pointed out, its meaning is essentially circular: you shall only be treated by the law under the “law of the land”.  it tells you nothing about what that law should be.  And if the “law of the land” includes, say, an unfettered royal prerogative or other unlimited executive powers, then it offers no protection whatsover; and it didn’t.  It was – and remains – a platitude, a slogan.

And so, the advances in “liberal” protections for the individual in English legal history – the writs of habeas corpus or the rulings against unrestricted warrants – came in unrelated legal developments, none of which depended on Magna Carta.

In fact, for a supposedly fundamental document, there is little to see of its “fundamental” effect: few, if any, cases have ever turned on it.  Although it is often invoked in passing, it lacks the live and real effect of an actual constitutional instrument.  Compare this impotence with the entitlements in the US Bill of Rights, which make actual differences to US citizens every day.

 

But, but….

But, so what?  Magna Carta is symbolic, isn’t it? And isn’t symbolism important?

So used are many people to thinking Magna Carta is a Good Thing they are displeased at hearing anything about it other than praise.  Don’t you understand, they will ask, that Magna Carta is symbolic?

Symbolism is important. And what Magna Carta is symbolic of is not a great English constitutional principle, but the lack of one.  It symbolises the capacity of people to nod-along at being told they have fictional and non-existent rights instead of having rights which can actually be enforced.  It symbolises that people are content with believing in fairy tales.

Those with political and legal power know this.  It is safe for the government to want you to celebrate Magna Carta, which you cannot rely on in court, whilst it – for example – seeks to repeal the Human Rights Act, which you can.

Does Magna Carta mean nothing to you, asked Tony Hancock.  Sadly, to the extent it matters, Magna Carta means almost nothing at all.

 

 

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28 thoughts on “The meaning of Magna Carta”

  1. Magna Carta is the foundation of English Statute law, even if almost none* of it is still in force, nor was it meant to be such a constitutional document.

    You’re a lawyer, mistaking legal “fact” for deeper cultural meaning. Laws, even the sainted HRA are man-made not revealed.

    *Am I right in thinking one or two obscure clauses are still law – the remembrancer for eg?

    1. I would not call clauses guaranteeing the freedom of the Church of England and (if memory serves right) Habeas Corpus “obscure”.

      1. Interesting that the city of London and the CoE can rely on the magna carts at law but no one else?

        I have tried to make this point before.

        1. A tradesman may not be deprived of his tools, by fine, or by those who seek compensation for outstanding debt.

          That’s a piece of Magna Carta which still applies, having been incorporated into other, later, statutes.

          Because courts rarely refer directly to Magna Carta doesn’t mean that it’s provisions are entirely dead.

          Sumption is an obnoxious twerp who is only reciting the current orthodoxy. Far from being bold, his opinions are boring, coinciding as they do with both long-standing legal orthodoxy and with (arrrgghh – forgive me – but I’m compelled to use the upcoming phrase) so-called “cultural Marxism”, the phenomenon now dominant for over 50 years within which English and British cultural tropes and sources of identity have been systematically deconstructed and dismissed.

          In the case of Magna Carta, Coke et al never believed that it was a revolutionary statute or that it made a massive and immediate difference to Royal behaviour. They always claimed, as Sumption pretends to have discovered, that the charter was only a recitation of existing customs and laws, and they always emphasised, not so much the politics of Runnymede, as the politics of the next few hundred years where Magna Carta was clearly seen as an important document, one that was passed by Parliament repeatedly over that time.

  2. I think you dismiss the symbolism aspect too lightly. The rights contained in Manga Carta form the bedrock of the constitutions of many of former British Dominions. Of course your point re. UK still stands.

    Also, Parliamentary Sovereignty is a valid Constitutional Principle. (Though not, in my opinion, a good one.)

  3. As pointed out here by me sometime ago, the Levellers saw through Magna Carta and its myth over three-and-a-half centuries ago; to their leading spokesmen Magna Carta was “A beggarly thing containing many marks of intolerable bondage” (Richard Overton, with, perhaps, William Walwyn, in A Remonstrance Of Many Thousand Citizens, 1646).

    The Levellers and their supporters then and now (especially their modern romanticisers) may have been to some degree as mistaken as Coke in their analysis of English “Liberty” and had several of the lay person’s flaws when considering Law (including their own myths, such as The Norman Yoke) but they had thought about the subject of fundamental laws and guarantees to all citizens well enough to know the need for a formal Constitution as the first Basic Law of a state.

    Don’t expect to hear too much about The Levellers and like-minded critics of Magna Carta today or for the time being.

  4. I don’t think you’ve set Magna Carts in its historical context.

    The fact is that it binds the Monarch – to act not from Divine Right but in accordance with the laws of the land.

    ie- power does not flow from the fact that some watery tart handed your grandfather a sword, it comes from the consent of some people. In 1215, that was barons only, but later became everyone. That is the astonishing (for 1215) principle behind the document.

    The fact you don’t even mention Divine Right and MC’s challenge to it suggests that you don’t really understand the period, and just want to use the commemoration of MC as a dig at the government.

    1. To use Divine Right of Kings is somewhat anachronistic, as that is a sixteenth century doctrine not used or considered in the thirteenth century. It was a response to Protestantism and kings who ruled without consent of the Pope. God chose me, so the Pope cannot say I should not be king.

      The Roman Consuls did not rule by divine right and could only make up their own rules in a state of emergency. Athens had a pure(ish) democracy. William I claimed the throne by right of conquest. Holy Roman Emperors and Popes were elected. So the concept of government acting with the consent of a people who had inalienable rights was not new in 1215. The truth is that in medieval England, you became king by winning battles, by being the strongest guy around, or by having the support of the strongest guy around. John certainly didn’t believe in divine right as he rebelled against his father more than once.

      Magna Carta was about one powerful group laying down peace terms that the other side had zero intention of upholding. Magna Carta was a delaying tactic. Nothing more. I cannot get too misty-eyed about it.

      1. So all that ‘anointing with oils’, and coronations in Abbeys by bishops was just flammery, was it?

        Sorry, the Mediaeval mindset was absolutely that Kings were put in place by God himself. God would often act in funny old ways, including via war and assassination, but it was undoubtedly Him granting the King the seat of his power.

        I don’t disagree that MC arose from low politics, rather than high philosophy, but it’s no less powerful for it.

      2. Incidentally, I’m talking about setting it in a Mediaeval European context. Ancient Roman and Greek examples are irrelevant, I’m afraid.

        The one relevant example is William I, but it doesn’t help your case. He didn’t claim the throne solely by conquest – he did so with Papal approval, and made penance afterwards.

        Democracy was, of course, not new in 1215. But even the limited moves made to bind a King – not just as practicalities – in the MC were very unusual, for the time.

    2. Read the Sumption articles listed. He points out that every medieval king promised to obey the law. It was their way of getting the barons onside. In a weak state, kings (like John) needed the barons support.

  5. So we need a proper Constitution. Parliament is clearly not up to the job, which means we have to burn tyres in the street first, which is smelly and polluting and will upset the Daily Mail, so maybe we should all just go back to sleep.

  6. I guess this means that we can expect the new Bill of Rights to be underpinned by the Magna Carta.

    That was a joke, by the way, not a serious policy suggestion for the Conservatives.

  7. Somewhat to my surprise – I’ve agreed with your earlier critical comments on the cult of MC – I’m not convinced by this one. Firstly, since the Hart/Fuller debate in the early sixties, legal philosophers have been arguing about whether achieving things through law(s) has any intrinsic moral superiority over achieving them through decrees, Bills of Attainder, remarks about turbulent priests, “working toward the Führer”, etc. It sounds as if Lord Sumption is with Hart in thinking the answer is No (although Hart himself was considerably more nuanced & equivocal in this respect than some of his latter-day followers). But if, with Fuller, one believes that there’s an intrinsic morality to any functioning system of laws – and one which is realised the more fully the more it meets certain criteria (publicity, intelligibility, followability etc) – then ‘you shall only be treated by the law under the “law of the land”’ isn’t so much a circular statement as a marker in the ground: as if to say, at the very least, from this point onward laws will be what the monarch (or state) uses to coerce freemen (or citizens).

    Secondly, and on a less exalted plane:

    We will sell to no man, we will not deny or defer to any man either Justice or Right

    You don’t think that‘s relevant at the moment?

    In other words, I think the Magna Carta should be celebrated as the starting-point of the rule of law in England – but celebrated in the full knowledge that (a) the RoL as we know it is bound up with conceptions of democracy, citizenship and individual rights which date from the twentieth century, not the thirteenth*; and (b) that the RoL has been under sustained assault by successive governments since 1997**, and is currently looking very threadbare indeed. Don’t celebrate, organise, in other words.

    *The dates we should really be commemorating are 18/8/1911, 2/7/1928 and 4/11/1950.
    **For the avoidance of doubt, I’m not critiquing those governments from the Right – just drawing attention to their attitudes to the RoL, which can variously be characterised as disregard, disdain and contempt.

    1. PS Having read Lord Sumption’s speeches, I tend to agree with him – particularly the conclusion to the first one, to the effect that what we think of as “Magna Carta” is important, but dates from the seventeenth century and doesn’t have a lot to do with the original document.

      The issue you, and to a lesser extent Lord Sumption, are focusing on is whether articles 39 & 40 matter in the sense of having power – whether they bind anyone or anything. To which the answer, particularly since Bancoult, is either ‘No’ or (more optimistically) ‘only if an authoritative court ruling takes them as having power (which to date courts have tended not to do)’. But you could also ask whether the rule of law, as a set of principles, binds anyone or anything – and the answer would again be ‘yes, if a court takes itself to be bound by it; no, if it doesn’t’. What some of us are focusing on is whether articles 39 & 40 matter in the sense of having value, articulating (or at least gesturing towards) something worth celebrating. I think the answer to that question is Yes – even if what we’re celebrating are in effect seventeenth-century principles (scepticism about the Divine Right of Kings very much included), opportunistically read back into the historical MC.

  8. Unfortunately magna carta 1297 is not myth or meaningless it is statute and even then judges such as lord hamburger (sic) ignore it and fudge it whilst also being key figure behind the magna carta celebration.

    Also with the talk of a need for a British Bill of Rights. To quote Monty Python “We all ready got one, its very nice” only put in place in 1688 and if you read it, it shows membership or the EU, ECHR is quite unlawfully unconstitutional. We cannot actually be members.

    An IN/OUT referendum in the terms proposed invites the nation to BREACH the bill of rights.

  9. The big issue for me is the commons was meant to be the guardian resister to stop abuses but has become creeping over many years the very problem is was meant to address.

  10. This commentary about Magna Carta , which emphasises with links to Lord Sumption’s essays are not entirely the ‘truth, the whole truth and nothing but the truth’ in my opinion.

    Basically, as with so many detractors of Magna Carta’s importance, their position is that Magna Carta fails to provide sufficient ‘definition’ as to the meaning of ‘The Law of the Land’ which they say, by construction, simply allows the supremacy of the Monarchs divine right to trump any specific provision, such as trial by jury. It amazes me how so learned and articulate people such as Lord Sumption can so easily and without explanation contradict themselves. On the one hand he emphasises that historical context is essential in defining meaning and intent to Magna Carta but then misrepresents that meaning and intent by using modern analytical linguistic legalese criteria to suggest that it doesn’t hold up as a Constitutional Instrument. He suggests that, on the whole, Magna Carta changed nothing because there was already a Law of the Land that Kings were expected to follow. If that was so why would it have been thought necessary at the time to create such an instrument? It must follow that it was precisely the issue of limits to the Kings powers that was being defined. What would be the point of listing in specific terms the rights, protections and obligations of freemen if the reference to the Law of the Land meant that such defined rights could be summarily over ruled by the divine right of the King? Putting the language of Magna Carta into context is indeed essential. It reminds me of the absurd statement by the highly esteemed professor of constitutional law Dawn Oliver who suggested that Magna Carta could not be deemed an enforceable contract because King John only sealed it rather than signed it. The Kings unique personal seal in 1215 had all the accepted usage and signatory effect of any modern form of signature.

    The article together with Lord Sumptions linked essay and speech also attempts to qualify what Law was in those times by also referencing contemporary referrals to the Law of Edward the Confessor, which they deride by suggesting Edward produced no significant laws. Again the apparent lack of awareness of Common Law is astonishing from such otherwise learned sources. Edward the Confessor was significant for upholding the COMMON LAW of the Land as first codified by Alfred the Great in the 9th century . Common Law and it’s undisputed partner in supremacy NATURAL LAW remains to this day one of the two pillars of our very much written constitution, the other being Contractual Constitutional Instruments such as Magna Carta. What makes these two pillars supreme is that they cannot lawfully be amended by a mere statute because they were not created by statute, Bills and Acts are not Law per se, they are legislative instruments which must follow Law to be enforceable; otherwise what would be the point of a Constitution, the one that the Coronation oath swears to defend?

    Magna Carta is important because it established the supremacy of Law over government, even though government has ever since tried it’s damnedest to reverse that principle by obfuscation and the outright deceit of those charmingly urbane forked tongues that have for so long blighted the rights of previously acquiescent and ignorant generations. A Constitutional Instrument can only be superseded by a newer Constitutional Instrument which includes any accepted evolution of Common Law. Common Law evolution might be defined by higher courts as case law but ultimately only by a Grand Jury, which remains a sacred element of our constitutional process, even though treasonously obstructed by unlawful statues that in themselves ought only have had short term and limited authority under the common law defence of ‘Duress of Circumstance’, namely World War Two. Certainly the further amendments to Magna Carta superseded the original where they were created as Constitutional Instruments rather than as mere statutes. More profoundly though was the 1688 Declaration of Rights consequential to the Glorious Revolution. That Constitutional Instrument superseded, where specifically defined, Magna Carta but even the Declaration of Rights accepts. by clear construction, the continuing supremacy of Common Law. The deeply entrenched supremacy of the Declaration of Rights remains a thorn in the side of the urbane tyrants of Parliament today as their inferior mirrored statute, the 1689 Bill of Rights, cannot be altered without a further Constitutional Instrument.

    So let’s not be persuaded, by those who would overthrow our sacred Common Law Constitution, that Magna Carta is just a joke. It may be primitive by modern standards but it was a major stepping stone towards our constitutional democracy, which still has some way to go before tyranny is finally defeated on these islands.

  11. I am not sure I would be so dismissive of Magna Carta. The detailed essay in History Today suggests that MC was seen in the high middle ages as the fundamental law of the kingdom, this view of MC did go into decline with the War of Roses and the rise of the Tudor dynasty but never disappeared and was then resurrected by Sir John Coke. While some of the claims Coke made were exaggerated it was by no means all myth there was a Plantagenet constitutionalism based on MC on which he legitimately drew. http://www.historytoday.com/ralph-v-turner/meaning-magna-carta-1215

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