Why Magna Carta still matters today
Magna Carta as a source of libertyThe continuing importance of Magna Carta as a source of liberty is well established. One of the key provisions in the 1215 Charter was that imprisonment should not occur without due legal process. This also established the idea of trial by jury. Clause 39 of the 1215 Charter states that: ‘No free man shall be arrested or imprisoned … or exiled or in any way ruined … except by lawful judgment of his peers or by the law of the land.’ This effectively established the principle of the rule of law, protecting individuals from arbitrary punishment. Of course, that’s not to say all men were therefore free — the feudal system of the time saw to that. But, as with many aspects of Magna Carta, it’s what this principle subsequently helped inspire that makes the Great Charter still relevant today.
The Bill of Rights
This declaration of 1689, known as the Bill of Rights, stated that it was illegal for the Crown to suspend or dispense with the law, and insisted on due process in criminal trials.View images from this item (3)
Copyright: © Parliamentary Archives, London HL/PO/JO/10/1/1430, membrs. 2–3
Delaware copy of the United States Bill of Rights
This copy of the Bill of Rights was ratified by Delaware in January 1790.View images from this item (1)
Copyright: © National Archives and Record Administration, Washington DC
Universal Declaration of Human Rights
Written following the atrocities of WWII, the Universal Declaration of Human Rights states that people around the world should be protected by fundamental human rights, regardless of their citizenship, race, gender or beliefs.View images from this item (16)
Human Rights Act 1998
The purpose of the Human Rights Act was to incorporate into UK law the rights and freedoms guaranteed under the European Convention on Human Rights (1953).View images from this item (1)
Cartoon entitled 'Does Magna Carta mean nothing to you?' and featuring David Davis
This cartoon portrays Conservative MP David Davis as a ‘Monster Raving Tory’, who hoped to enhance his standing by making populist appeals to Magna Carta. The image quotes Tony Hancock’s famous satirical line: ‘Does Magna Carta mean nothing to you?’View images from this item (1)
Copyright: © Dave Brown
Cartoon entitled 'Magna Carta? Habeas Corpus?' and featuring Charles Clarke
This cartoon uses Magna Carta to symbolise the legal rights that were believed to be threatened by the Prevention of Terrorism Bill, 2005.View images from this item (1)
Copyright: © Dave Brown
Cartoon entitled 'Magna Carta, Mini Carta' and featuring Tony Blair
This cartoon satirises the Prevention of Terrorism Bill (2005), depicting the then Prime Minister, Tony Blair, holding a ‘Mini Carta’ entitled ‘New Labour and Human Rights’, and inscribed ‘House arrest etc. etc. etc. etc. etc. etc.’.View images from this item (1)
Copyright: © The Times / News Syndication
Magna Carta’s broader relevanceJust as with the principles of liberty, the continuing importance of Magna Carta may also be found in its broader ideas as they have been reinterpreted over the centuries. From these, Magna Carta can also be seen as a foundation of accountability, of popular democracy, and even of the importance of engaged citizens. The fact that Magna Carta had precious little (if indeed anything at all) to say about these things is to miss the point. Historians have shown that, over time, different generations reinterpreted Magna Carta’s meaning to match the dominant ideas of their age.
Democracy, for example, was not linked with the concept of liberty until at least the time of the English Civil Wars. Thinkers began to posit the idea that liberty under the rule of law may well depend on a wider involvement in the creation of that law. And for that to occur, institutions like Parliament would need to develop and include more citizens both as members and electors. Of course, that process took a great deal of time and, indeed, we might argue that it is still developing, with live debates about the extension of the franchise to prisoners and those aged 16 and above. But the important point here is that Magna Carta’s meaning was reinterpreted, so that the contemporary relevance goes well beyond the original intention, not only in the embedding of human rights into our statute book, but also seeing liberty as a fundamental cornerstone and foundation for democracy. But with that comes potential conflict between the principles of liberty and those of democracy.
As these ideas developed, they began to reveal a central tension in the idea of liberal democracy. Magna Carta was fundamentally about the law being pre-eminent, and in the context of arbitrary rule by a monarch, that made good sense. But as the sovereignty of the elected Parliament developed after 1688, then the question of the balance of power inevitably arose. Should a sovereign parliament be free to repeal laws reflecting the will of the people, or should it be constrained by the law. In other words, was popular sovereignty through Parliament a better guarantor of liberties?
From the 19th century onwards, it became clear in Britain that this emphasis was shifting towards Parliament, with many provisions of Magna Carta deleted from the statute book as they were considered obsolete. And the British were often seemingly comfortable with the principles of democratic sovereignty, seeing them as more flexible in dealing with emergencies, such as uprisings or wars, while the general principles of personal liberty were seen as being maintained. General Elections, for example, were suspended during World War Two. If the will of the people demanded restrictions on dangerous groups or individuals, then that was surely preferable to the rigidity of an unbending law?
Repeal of the clauses of Magna Carta in An Act for promoting the Revision of the Statute Law
The most sweeping deletion of Magna Carta’s clauses from the statute book took place in 1863. 17 of the clauses were considered to be obsolete.View images from this item (5)
Such questions become even more pertinent as definitions of human rights become increasingly broad, since inevitably those declarations may be flavoured by the political fashions of the day. The French Declaration of the Rights of Man and the Citizen of 1789, for example, includes an article citing the basis upon which tax should be raised — equally apportioned among all citizens according to their means. Yet such a principle would almost certainly not find favour across the political spectrum today. More recently, the European Convention on Human Rights (ECHR), alongside relatively uncontroversial human rights such as that to life and the prohibition of torture, also includes the right to marriage (though not to same sex marriage). Not only does breadth throw up some curious notions of human rights, it is also more likely to lead to clashes between individuals and groups, both claiming rights.
The Declaration of the Rights of Man and of the Citizen
This Declaration defined individual and collective rights, at the time of the French Revolution. It echoed Magna Carta in certain key statements, e.g. by maintaining that, ‘Nul homme ne peut etre accusé, arreté ni detenu que dans les cas déterminés par la loi’ (No person shall be accused, arrested or imprisoned except in those cases established by the law; clause 7).View images from this item (1)
Copyright: © Musée Carnavalet / Roger-Viollet
Even supposedly uncontroversial human rights may also prove to be controversial. The ECHR prohibits the death penalty except in relation to war. Yet the will of the people, if we take public opinion polls as our guide, has consistently supported the restoration of capital punishment in Britain. Interestingly, the issue periodically re-surfaces in Parliament, but MPs have proven to be effective guarantors of rights through consistently voting down attempts to reintroduce the death penalty.
European Convention for the Protection of Human Rights and Fundamental Freedoms
These articles come from a pan-European treaty (1950) demonstrating a commitment to enforce the freedoms expressed in the Universal Declaration of Human Rights.View images from this item (2)
So, Magna Carta continues to be of great relevance to us all. It is the foundation of liberty and arguably, ultimately, of democracy. But, as we have seen, parliamentary democracy may bring with it challenges to liberties through reflecting the will of the people and aspirations of politicians. All of these issues are live and ongoing and provide rich areas for debate. So let’s not think about Magna Carta solely in terms of medieval and legal history. Those aspects are obviously important. But perhaps most important is what Magna Carta has come to symbolise, even though this was almost certainly not what was envisaged or intended by those who drafted the Great Charter 800 years ago.
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