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, 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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