Today is the 800th anniversary of the signing of the Magna Carta Libertatum ― or just the Magna Carta, among friends. The Great Charter has been much celebrated, and also derided, of late. In the New York Times, Sarah Lyall does an excellent job of summarizing the competing perspectives. The celebrations tend to emphasize Magna Carta’s role as a symbol of liberty and the Rule of Law. Consider, for instance, that Sir Tim Berners-Lee, the inventor of the World Wide Web, has called for a “Magna Carta” to protect the openness of his invention. (The Economist has a somewhat cheeky take on this today.) The critics point out that this symbolism is largely made up, a 17th-century fabrication. In its own day, the Magna Carta was a miserable failure: King John, who signed the Magna Carta, swiftly proceeded to get the Pope to dispense him from the duty to abide by it. There is not much for me to add, but I would like to venture some thoughts not on the contemporary significance or historical insignificance of the Magna Carta, but on what I take to be two if its timeless lessons.
The first is that the relationship between universalism and particularism in the realm of human rights is very complicated. The Magna Carta includes some clauses that are still cited today because they appeal to us as much as they did to the people of 1215. This is especially true of the injunction (in clause 39) that
[n]o free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.
In a recent judgment, the Chief Justice of the United States, John Roberts, also alluded to the next clause, whereby King John promised that “[t]o no one will we sell, to no one will we refuse or delay, right or justice.” And while I don’t think the Magna Carta is much cited in this context, the idea of proportionality in punishment that is so important in contemporary Canadian jurisprudence was already there, in clause 20:
For a trivial offence, a free man shall be fined only in proportion to the degree of his offence, and for a serious offence correspondingly, but not so heavily as to deprive him of his livelihood. In the same way, a merchant shall be spared his merchandise, and a villein the implements of his husbandry, if they fall upon the mercy of a royal court.
Of course, it is true that, as Carissima Mathen noted in a recent op-ed, “[b]arbaric practices, like public execution and torture, continued apace.” But then, medieval England was not the only place where proclaimed ideals were not exactly matched by actual events.
Still, it is sometimes said that the past is a foreign country. And so it is tempting to think that if the ideals of due process of law were had such an attraction for the people of that foreign place, they are no mere concerns of a particular time and place. They speak to something universal in human nature. So when the governments of places such as Russia or China try to dismiss calls that they abide by these rights as some sort of cultural imperialism, an attempt to impose the neuroses of Western modernity on their nations’ vastly different cultures, we could call their bs.
At the same time, it is undeniable that many of the Magna Carta’s provisions were very much artifacts of their particular place and time ― and the same is true of (just about?) any other rights-protecting document that has followed it. It is difficult for us to believe that the removal of “[a]ll fish-weirs … from the Thames, the Medway, and throughout the whole of England, except on the sea coast” had the same importance as due process of law, but there it is in the Magna Carta, in clause 33. It’s a reminder, I suspect, not all of the or the Canadian Charter of Rights and Freedoms, will appear equally important 80 years after their enactment ― never mind 800.
The other lesson of the Magna Carta concerns the importance of enforcement mechanisms for the limitation of governmental power and the protection of individual rights. It is, I think, seldom mentioned, but the Magna Carta actually included an enforcement clause, clause 61. The mechanism it put in place was, however, very much medieval. The barons were to elect 25 of their number, to whom people who considered their rights to be infringed could complain. Four barons would then go to the king, and if the king
make no redress within forty days, … the four barons shall refer the matter to the rest of the twenty-five barons, who may distrain upon and assail us in every way possible, with the support of the whole community of the land, by seizing our castles, lands, possessions, or anything else saving only our own person and those of the queen and our children, until they have secured such redress as they have determined upon.
In other words, the only possible remedy for a rights violation was civil war. Which, frankly, seems a bit of overkill for a failure to remove a fish-weir from the Thames ― or even, for that matter, for a corrupt trial. Even if King John had been inclined to abide by the promises he made on the field of Runnymede, it is doubtful that the Magna Carta would have been much of a success. Any good faith disagreement between him and the barons would have led to wars, which would probably have caused people to hate the Magna Carta more than anything ― unless the parties also thought that a fish-weir wasn’t really worth a civil war, in which case the Charter would have become a dead letter anyway.
Perhaps it is then better that things turned out the way they did. It is King John who has gone down in history as the villain of the play, and not the Magna Carta. (Indeed, I cannot help but wonder whether he would have done things differently had he known that signing that document would be his greatest claim to fame!) The Great Charter, free any legacy of being applied ― and perverted ― by fallible human beings, can remain a shining symbol of our beliefs in liberty and the Rule of Law. I, for one, hope that its 1000th anniversary is greeted with at least as much fanfare as the 800th.
Double Aspect 