By Nigel Saul
Published Online (2013)
The making of Magna Carta was a turning point in English constitutional history. The Charter’s great achievement was to place the monarchy – the executive power – under the law. Previously there had been much discussion about the relationship between the king and the law. Some thinkers of the time said that the king was above the law: that he made the law and he enforced it, but he was not actually bound by it himself. Rival thinkers, on the other hand, maintained that the law was there to be discovered: the king interpreted it and was bound by it as well as having the duty of enforcing it. In England in 1215 Magna Carta settled all those debates once and for all. In the words of the great lawyer, Henry Bracton, writing in the mid thirteenth century, ‘in England the king is below God and below the law’.
The two most famous clauses of the Charter, numbers 39 and 40, still resonate across the centuries. Clause 39 says that no free man shall be arrested, imprisoned or dispossessed of his lands without judgement of his peers or against the law of the land. Clause 40 says that to no free man will right or justice be delayed or denied. Between them, these two clauses established the principle of the due process of law, a principle fundamental to life in the free world today.
Magna Carta is both an inspiration and a reminder to us. It is a reminder of the achievement of our forebears in standing up to an unjust ruler and affirming principles of universal validity that still hold true today. It is also an inspiration in that it encourages us to champion those same principles today, to be vigilant in our defence of due process, and to assist those in less favoured lands who are fighting for the kind of freedoms that we, as a result of Magna Carta, can so easily take for granted.
Yet the legacy of Magna Carta is not unproblematic. We see the Charter as a kind of a Bill of Rights, a fundamental law that we honour as the first statute on our statute book. Yet paradoxically, at the same time, we pride ourselves in not having a written constitution in this country. Magna Carta’s importance today is actually more symbolic than actual. Beyond the two famous clauses, 39 and 40, it affords us no real protection. The question then arises of how we think is the best way of preserving the rights of the individual against the State in future. Do we perhaps need a new Magna Carta, a Bill of Rights, to protect us from growing executive power and the flood of legislation pouring in from Europe? Or do we, on the other hand, think our present safeguards are quite sufficient? These are some of the questions we might reflect on as we ponder the legacy of Magna Carta on the approach to the eight-hundredth anniversary of its making.
Nigel Saul is a Professor of Medieval History at Royal Holloway University.
Source: Royal Holloway