Even with the benefit of a legible version and a
modern translation of Magna
Carta it is sometimes difficult to see what all the fuss is about. The charter that King John signed at Runnymede on 15 June 1215 is, as the
master of the rolls, Lord Dyson, said
this year, a curious hotch-potch. A
ringing – or any other kind of – declaration of modern liberties it most
definitely is not. The idea that it has much directly to do with democracy,
equality or, as Margaret Thatcher claimed in her Bruges lecture in 1988, with
representative government, is false.
It is a stretch to claim that the charter is the root of the modern rights
of women, although it does codify the right – which had been developing for a
generation or more – that “no widow shall be compelled to marry so long as she
wishes to remain without a husband”, and even gave them certain very narrow
property rights. It did not expressly endorse trial by jury. It states no overarching
theory of rights. Most of what it contains is pragmatic rather than principled.
Look at chapter 50 of the charter, for example, in which the king pledges to
“entirely remove from our bailiwicks the relations of Gerard de Atheyes, so
that for the future they will have no bailiwick in England”. This part of the
document is all about brute power, not grand statements.
Especially on the 800th anniversary of the charter, it is also a mistake to
imagine that the road from Runnymede has been a smooth one. For one thing,
newly important again, Magna Carta is at heart an English rather than a British
document. Although it contains important clauses about Wales and Scotland, as
well as mentioning Ireland in the preamble, it treats the
non-English parts of the
British Isles as the separate lands that they were.
It is one of the noblest aims of politics to achieve moments in which
lasting principles of justice and equity emerge from the mess and confusion of
power struggles. It is in that light that we should understand, and welcome,
Gordon Brown’s call for a constitutional convention to settle the union. Here too
we have clashes of party interest that must be settled in ways that establish a
greater good to which all can subscribe, however reluctantly. This happens slowly.
The charter was reissued, amended, reasserted and changed from the moment
it was signed. Yet, for all that,Magna Carta matters in 2015 in some of the same ways it mattered in 1215. Partly
that is because there is continuity and principle in the text. “To none
will we sell, to none will we deny, or delay, the right of justice” –
chapter 40 of the charter and still in force today – is as resonant and
succinct a statement today as it was eight centuries ago. The doctrine of
proportionality between offence and sentence in chapter 20 echoes through the
centuries too. The principles that judges must know the law and that only
judges shall sit in judgment speak to the rule of law in the 21st as much
as the 13th century.
An even more important continuity, though, is not so much the substance of
Magna Carta as the idea of it. It is this created and imagined version, not its
precise content or its 13th century historical significance, that explains why
the Queen will be going to Runnymede on Monday and illuminates the national
self-congratulation of the anniversary. FW Maitland, father of modern English
legal history, called Magna Carta a “sacred text”. David Cameron has
called it the “foundation of all
our laws and liberties”. Historically speaking, this is bunk. But in so far as
it supports the idea that individual freedom is precious and must be defended
and passed on, it is genuinely ennobling.
Myth it may be, but a virtuous national myth that speaks to the belief that
the timeless and magisterial law stands above the flawed ruler, whether
medieval or modern. The charter may or may not be an embodiment of British
freedom or human rights. It was not a proto-constitution, yet to an extent, in
popular imagination, it stands in as one. And while, in an age of
globalisation, it also points to our national failure to find ways, say, of
bringing international business within the law, it recognises the importance of
trying.
We are free in part because we believe we are free and because we are
determined that we should be free. We have Magna Carta and its history to thank
for that – but history is not enough: after 800 years, we may now need
a comparable feat of farsighted courage.
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