The Destructive Myth of the Magna Carta

The British Constitution is often described as “unwritten.” This is not quite true: It is correct that there is no single codified document called the “British Constitution” containing all the law and lore of how the constitution operates in practice. However, the British Constitution is written down; it is just written down in a number of places. It is made up of a miscellany of statutes, hallowed text books, ancient doctrines, and evolving conventions. Of these, the most famous is the so-called Magna Carta of 1215.

This charter celebrates its 800th birthday on June 15, and in the weeks leading up to the anniversary, has been the subject of conferences and exhibitions, speeches and articles (such as this one), both in the United Kingdom and elsewhere in the common law world.

It is easy to go along with the hype. Magna Carta (which by convention does not have the definite article) is, we are told, the foundation of English liberties and the bedrock of the rule of law. The legal instrument sealed by Bad King John at Runnymede at the insistence of the Barons and the Church projected the idea of a constitution based on the rule of law, which was in turn the foundation of a liberal political and legal order. And so it led upwards and onwards to eventual modern democracy.

It is almost as easy to deride such an interpretation as tosh. The document of 1215 only lasted a few months before being annulled. The charter, which we call Magna Carta, is actually from 1297. The charter was not called Magna Carta, or Great Charter, by either John or his contemporaries; that nickname came later. Much of the document was to do with mundane matters as fisheries and forests, and almost all of it is now repealed.

Magna Carta is certainly famous. One passage in particular is venerated as a statement of the very highest importance, and rightfully so:

“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.”

This is an incomparable articulation of the normative requirement that governments should be subject to the law of the land. Legally, however, it is worthless.

Few, if any, cases before the courts of England have ever turned on this statement. It appears to have made no difference in any reported case, though it is often mentioned in passing. Even recently, parties have been unsuccessful in using it to challenge evictions of political protesters and attempts to limit legal aid. It is certainly often quoted with approval by judges, just as it is by politicians. And that is the clue to its importance: It is a slogan or a platitude. It is not law, at least in any meaningful way. Nobody can go to court and enforce the provision, and those who do are not taken seriously by the courts. When a protester tried a couple of years ago to rely on Magna Carta against an order removing the Occupy protesters from St. Paul’s Cathedral, the judge effectively mocked the attempt. The protester claimed to be a “Magna Carta heir”; the judge denied him such standing, saying it was “a concept unknown to the law.”

Contrast this with, say, any of the entitlements set out in the U.S. Bill of Rights, another venerated document. Some of these — the First Amendment guarantee of free press or the defendant’s right to “plead the fifth” — make a difference to U.S. citizens every day. The rights are alive and have a real impact on what the state can and cannot do.

This is not the case with Magna Carta. Even the most powerful means in England of challenging unlawful detention — the writ of habeas corpus — was a separate and unconnected development.

So why is Magna Carta so well-known if it is not of any legal importance? And does it really matter if it has more ornamental than legalistic value?

Magna Carta owes its fame to pundits and lawyers not of the 1200s but of the 1600s, especially a propagandist and jurist of genius called Sir Edward Coke. He reinvented Magna Carta as the primary document of rights against the crown during the reign of the oppressive Charles I, as surely as Shakespeare re-told the stories of a range of medieval kings and Malory reinvigorated Arthur. He took a fairly obscure and dusty document — named “great” because of its length rather than because of its significance — and made it a foundation of a modern constitution. Indeed, a great deal of what is believed to be the Merrie England of the Middle Ages is Tudor and Stuart fakery and puffery.

But so what? Surely there is something to be said for Magna Carta as a “symbol”? At worst, one might say, it is harmless, and at best it is inspiring. Perhaps so; but there is also a different, more cynical point of view.

Governments and the illiberal cherish Magna Carta not despite its lack of legal significance, but because of it. It is a means through which those who do not want their legal powers to be challenged or checked by any court can still pay lip service to the great constitutional tradition. The current Conservative government in the United Kingdom wants us to trumpet the anniversary of Magna Carta, which you cannot enforce in court, while it seeks to repeal the Human Rights Act of 1998, which you can.

Ultimately, Magna Carta is not so much about a constitutional principle but a lack of constitutional principle. It is the sort of document those with power want you to praise, instead of granting you any actual constitutional rights. Don’t fall for it.

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