Thursday, June 15, 2006

The Great Charter

Today, June 15th, is the anniversary of the signing of Magna Carta. It wasn't the first legal document to limit the power of the English monarchy, but its the one we remember. And it's worth remembering, even though John repudiated it the moment he'd escaped his rebellious barons' clutches. It established rights such as due process and freedom of travel, as well as the founding principle of the Westminister system of Parliamentary government: that there shall be no taxation without the consent of Parliament.

While John repudiated the Charter, his heirs consistently reissued it, and it became firmly established in British law - to the extent that its now looked on as the founding document of "British liberty". Ironically, it has been almost entirely repealed today. Only four clauses from the 1297 version survive in british law, and only a single clause in New Zealand. But it's perhaps the most important one:

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 [or] deal with 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.

in the middle of a war on terror which has seen the erosion of human rights around the world, that's something we should all remember.


Not only did John repudiate the charter, but Charles I claimed it simply had no legal value. The king's word is law. Rex est lex. No law therefore can restrict the king. It's a simple constitutional argument, just as parliament now can argue that no previous parliament can place a restriction that it cannot repudiate.

How far did that get him? The result was the English Civil War, and Charles I's trial (!) and execution.

The king fought the law and the law won.

Posted by Icehawk : 6/16/2006 02:43:00 PM

makes sense - wasn't it signed under duress anyway? We don't accept confessions obtained under threat of torture or death, why would anyone accept laws agreed to under threat :)

Posted by Graeme Edgeler : 6/16/2006 03:35:00 PM

Graeme: John's repudiation makes sense in that context. But it was then accepted by other English kings voluntarily.

why would anyone accept laws agreed to under threat?

What, you mean like us accepting laws against drugs and piracy and porn and assault and murder?

Because at its heart, regardless of ethics, law boils down to force. Hobbes was ultimately right. The best we can do is try and make laws everyone is happy to abide by, and that no-one is willing to go to the wall to fight against. The way I think we should do this is of course liberalism...

Posted by Idiot/Savant : 6/16/2006 03:42:00 PM

I guess I was a little obtuse - I was talking about a situation where, say, the army conducted a coup, kidnapped the Gov-Gen and stormed Parliament, and, whilst waving guns around the debating chamber, forced the house into extreme urgency to pass a law making Jerry Mataparae ruler for life, the law is then sent of the Government House, where the Gov-Gen signs it into law whilst someone stands in front of her with his finger in the pin of a grenade threatening to pull it out a kill them both.

If instead of signing a law, someone was signing a confession the confession would be invalid, why not the law?

[this is something I'm sure over which we have no disagreement]

Posted by Graeme Edgeler : 6/16/2006 04:27:00 PM

Graeme: None at all. The Fijians, OTOH, seem to think its fine so long as the guy you're holding a gun to the head of is Fijian-Indian.

Posted by Idiot/Savant : 6/16/2006 04:31:00 PM