This article is written by Rahul Bajaj, a student of Nagpur University
At a time when democracies across the globe constantly pride themselves on being societies governed by laws and not men, there can be no better occasion than the 800th anniversary of the signing of Magna Carta to remember the foundational role played by this historic document in establishing the supremacy of laws over men. This document, whose creation was actuated by the desire of curbing and confining King John’s power of oppressing his people, especially the barons, through the imposition of unreasonably high taxes, improper seizure of lands, forest produce and raw material needed for growing crops without fair compensation, has come to be known as the foundation of liberty as it was the first document to embody Thomas Fuller’s famous cry: “Be ye ever so high, still the Law is above Thee.” Although only 4 copies of the document signed in 1215 are in existence today, its fundamental tenets have played an unparalleled role in positively restructuring societies characterized by unbridled autocratic rule by providing a legal and moral foundation for the creation of processes and institutions to hold those in power accountable and answerable to the masses; indeed, the origin of several fundamental concepts such as judicial review, separation of powers, collective responsibility and regular elections, sans which modern democratic societies would be nothing more than empty shells, can be traced back to the Great Charter. Above all, this document, which King John was forced to sign in light of mounting pressure by the Barons, is testament to the fact that collective citizen action has the power to institutionalize durable and transformational social change.
Key Provisions of the Charter and Short-term Impact
This 63-clause Charter, signed by King John at Runnymede Meadow in 1215, was not only designed to place the king under law, but also to put in place clear and definite principles to guide the actions of the King in his dealings with the Barons. Clauses 39 and 40 of the Charter, which, without doubt, have emerged as the most transformational and impactful provisions of this Charter in the last 8 centuries, read as follows: “No 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 other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land. To no one will we sell, to no one deny or delay right or justice.” These provisions not only singlehandedly laid the groundwork for the creation of concepts such as trial by jury, procedural and substantive due process and habeas corpus whose importance cannot be overemphasized, but also gave expression to man’s hitherto ignored yearning of being allowed to structure his life within his private sphere in consonance with a set of definite and predictable rules; of being given a fair and impartial hearing before being convicted and, above all, of being judged by his own peers who are uniquely situated to understand his flaws and foibles and the unique set of circumstances which may have prompted his actions.
Most of the other provisions of the Charter dealt with the specific circumstances that were responsible for the political crisis of 1215, such as regulation and streamlining of taxes known as scutage and socage, removal of fish weirs from the Thames and other parts of England (clause 33), linkage of fines with the severity of the offence committed (clause 20), appointment of qualified and fair judges (clause 45), prohibition of forced widow remarriage (clause 8) and provision to make the marriages of noble heiresses more fair and transparent (clause 6). Significantly, it stated that no taxes could be levied without the ‘general consent of the realm’, thereby paving the way for a more participative and transparent tax structure, albeit one dominated entirely by barons and churchmen.
It is pertinent to note that the Charter was largely unsuccessful in attaining its short-term goal of structuring a more equitable and amiable relationship between the King and barons, because after the King expressed his dismay to the Pope about the manner in which the Charter was to be implemented and the barons refused to surrender control over London to the King due to non-implementation of the Charter, Pope Innocent 3 issued an order, known as a papal bull, on 24th August, 1215, calling the Charter ‘illegal, unjust, harmful to royal rights and shameful to the English people’ and declaring it ‘null and void of all validity for ever’. John’s successor, Henry 3, re-issued the Charter in 1216 and 1217 and finally in a heavily revised form in 1225 in return for a tax from the realm, and it was finally put on the statute book in 1297.
Long-term Impact in England
In a country lacking a written constitution, Magna Carta played a transformative role in the middle ages in shaping and influencing laws aimed at securing individual rights and liberties and curbing the use of arbitrary power. A clear manifestation of the Charter’s transcendental importance can be found in a statute enacted in 1369 under the reign of Edward 3 which unequivocally stated “If any Statute be made to the contrary, it shall be holden for none.” Furthermore, a number of substantive steps, later known as the six statutes, were taken by Edward 3 to flesh out the contours of the due process guarantee embodied in Clause 39 of the Charter and to broaden the scope of said Clause to include all men of every estate and condition within its ambit.
Magna Carta emerged as a powerful weapon against the royal absolutism practiced by James I and Charles I in the 17th century and formed the most integral pillar upon which the edifice of the theory of ancient constitution, most famously championed by Sir Edward Coke, was based. The bulwark of the ancient constitution theory rested on the belief that the English Constitution consists of a set of royal reaffirmations of English law, whose genesis can be traced back to Edward the Confessor, and Magna Carta was another such reaffirmation of the fundamental rights and liberties enjoyed by all men on account of the very fact of being human. The idea of a legal code circumscribing the power of the king acted as a powerful galvanizing force and eventually culminated in the Glorious Revolution of 1688 and the enactment of the Declaration of Rights which gave concrete shape to the principles that Magna Carta espoused.
In subsequent centuries, with the creation of new governmental structures and a more pragmatic and critical appraisal of history, Magna Carta came to be viewed as nothing more than an obsolete legal document whose only purpose was to create a modus operandi for grappling with a political crisis of limited significance. Further, the Statute Laws Revision Act of 1856, followed by the acts of 1861 and 1863 repealed large portions of Magna Carta which had become obsolete, as a result of which, despite its historical importance, the document is of very little, if any, practical significance today. The insignificant position of the document in British society is best epitomized by the fact that British Prime Minister David Cameron was unable to give the literal English translation for ‘Magna Carta’ or fully state the location of its signing when quizzed by an American talk show host in 2012. Indeed, a recent survey found that more Brits i.e. 90% have heard of the American Declaration of Independence than have heard of Magna Carta i.e. 85%.
It would not be unfair to state that Magna Carta has had a far greater impact at the international level, especially and ironically in erstwhile British colonies, than in Britain itself for 2 important reasons. First, the circumstances leading to the creation of Magna Carta i.e. oppressive autocratic policies, public demand for greater liberty and autonomy and sustained collective action resulting in a favourable result, have deeply resonated with the masses fighting for independence from oppressive colonial rule over the ages and have emerged as an unparalleled beacon of hope and inspiration for the use of legal documents as instruments of political transformation. Second, countries that do not have a long legal history and codified robust protections for individual liberties have naturally been drawn to the ideals and principles espoused by the Great Charter which, naturally, have guided and informed their constitutions and founding declarations. America’s founding fathers often invoked Magna Carta in the course of their struggle against their colonial masters; when asked to justify the reason for Pennsylvania’s refusal to pay stamp tax in 1766 by the House of Commons, Benjamin Franklin principally cited Magna Carta to put forth the argument that the tax was not in consonance with the principles set forth in the Charter. The critical role played by Magna Carta in the formulation of the American Declaration of Independence of 1776 and the American Constitution of 1787, which for the first time explicitly recognize the need for the power of government to be predicated upon the consent of the governed, is best evidenced by the fact that the only monument in memory of the Great Charter at Runnymede was erected by the American Bar Association in 1957 in recognition of the inextricable linkage between the Charter and America’s founding documents. Realizing the venerated status of Magna Carta in American society, Winston Churchill took active steps for gifting one of its copies to the United States during World War 2, as the “only really adequate gesture which it is in our power to make in return for the means to preserve our country.” The Charter was first cited in an American Supreme Court decision in 1819 and has subsequently been cited in more than 100 decisions; Justice Breyer of the U.S. Supreme Court rightly noted recently that the Charter has been cited more by American courts than by British courts. Justice Anthony Kennedy recently remarked that the Charter is in his mind every single day as he begins his work and emphasized the importance of continuing the struggle for freedom that started in 1215.
Even in India, the Constitution, which, at root, is a social document, gives expression to the principles enshrined in the Great Charter 8 centuries ago in the form of fundamental rights embodied in Part 3 of the Constitution. Indeed, the Indian Supreme Court has traced the origin of Article 21 of the Constitution to Magna Carta. At the international level, the Universal Declaration of Human Rights was described by the chairperson of its drafting committee, Eleanor Roosevelt, as the “International Magna Carta of all men everywhere.”
Actual Importance: Separating Myth from Reality
While it is true that Magna Carta played an instrumental role in developing new principles that have emerged as the bedrock of modern democratic societies, it was by no means the first document to enunciate those principles. In eleventh-century Germany, King Conrad II agreed not to take the land of his knights away “save according to the constitution of our ancestors and the judgment of their peers.” Similarly, King Henry I of England issued the Charter of Liberties in 1100 in which he resolved to “abolish all the evil customs by which the Kingdom of England has been unjustly oppressed,” which essentially included the same practices that were addressed by Magna Carta 115 years later.
Many thinkers have argued that Magna Carta has been reinterpreted to read within it principles establishing the supremacy of law and free and fair trials which it was never designed to promote; it is nothing more than”an abandoned castle and a romantic ruin.”
While distortions of history, coupled with unwarranted rhetorical flourishes, have certainly glorified Magna Carta in ways that are difficult to reconcile with the practical purposes which the document was designed to serve, its importance in giving a concrete form and shape to the idea of creating a society governed by uniform and definite laws can hardly be overemphasized. Although it would be unwise to overlook the fact that Magna Carta was, in its most rudimentary sense, a pact between British elites to put an end to their constant squabbles and skirmishes, we would be well served to remember that the document does not claim to comprehensively and exhaustively delineate a set of principles that must lie at the heart of the concept of rule of law; instead, its importance lies in the fact that it was the first legal instrument to set forth the proposition that monarchical power must be subservient to a higher law, albeit in a specific context to deal with a specific problem at a particular point in history.
The Magna Carta’s real value is the articulation of the rights of the individual, the statement that no one could be imprisoned / sentenced without due process, and a just judicial infrastructure.
This was articulated before 1215, probably, but this rule changed British law and hence a large number of its colonies.
Pity, some “secular” people would love to damage this principle in relation to India’s majority religion: we are called un-secular for just being in existence.