“High-minded tosh” – the current brouhaha about the Magna Carta

16 March 2015 by

National Archives Displays An Original Copy Of Magna CartaLet’s apply some hard history to the 13th century charter governing the obligations flowing between King John and his barons, or at least read the thing (translation here). So says Lord Sumption in a fascinating address to Friends of the British Library on 9 March.

All sides jockey for position at the Magna Carta shrine, but its significance is entirely due to the myth-making tendencies of the seventeenth century politician and judge Edward Coke.  Since he plucked the charter quite clean of its historical context, the claims made in its name are extraordinary and downright self-serving:

In his column in the Daily Telegraph, Peter Oborne recently described the European Convention on Human Rights as a “document which entrenches the principles of Magna Carta in international law.” Others have come forward to suggest that the partial abrogation in 2014 of a legal aid system which was first created in 1949 was contrary to Magna Carta. Recently, a Global Law Summit in London, which was essentially an international marketing opportunity for British lawyers, described itself on its website as “grounding the legacy and values of Magna Carta in a firmly 21st Century context.

Sumption is not against liberty of the subject, nor motherhood and apple pie, nor even international marketing opportunities for lawyers, but he does have a problem with “the distortion of history to serve an essentially modern political agenda.”

Such claims

encapsulate the view mocked a generation ago in a famous essay by Herbert Butterfield, that the past can be viewed as an accident-prone but on the whole persistent march towards the manifest rightness of our own values.

I’m keeping this post very short, because the speech is imperative reading, and provides such a clear synthesis of feudal history, the relationship between the state and the individual, and the origin of law itself that no summary could do it justice. David Hart Q.C. has reviewed here  Lord Judge and Anthony Arlidge QC’s book which similarly wipes away the “political varnish” that has accrued over the centuries, but Sumption manages in a mere eighteen pages long, to decimate Magna Carta as a blueprint for future constitutional development.

In the three centuries which followed the scene at Runnymede, changes occurred in English society which made the sort of issues that the charter dealt with less important. In the first place, Magna Carta had been directed mainly to protecting the financial interests of tenants-in-chief, a very small group of perhaps 150 to 180 men.

Between 1225, when the Charter was overhauled, and its revival in Coke’s Institutes in the early seventeenth century, it was largely forgotten and barely invoked, except by the Church in the 15th century (“although the Church was by now a nationalised industry of which the monarch was the non-executive chairman”). Even now, only three clauses of the original Magna Carta remain on the statute book, and one of those protects the privileges of the church. Nevertheless it has assumed quasi-religious significance in modern society, being cited in nearly a thousand decisions of the US Supreme Court alone. So it is somewhat chastening to be told that

Coke transformed Magna Carta from a somewhat technical catalogue of feudal regulations, into the foundation document of the English constitution, a status which it has enjoyed ever since among the large community of commentators who have never actually read it.

We need to wean ourselves off the myths surrounding Magna Carta in its golden age, and stop worshipping antiquity whilst remaining “frighteningly ignorant” of it.

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  1. […] of statute law but for its symbolic significance. But for a taster see Rosalind English’s post on […]

  2. markpummell says:

    all very true; but there is one very vital aspect of Magna Carta that very rarely if ever is mentioned… in spite of all that Lord Sumption alludes to, it nonetheless remains a triumph of discourse over bloodshed… in which (some may say marginally) less powerful people were able to achieve something (essentially political) in relation to more powerful people… the gains of 1215 (short living as they proved to be) were not for once the spoils of war… this for me has celebratory kudos

  3. daveyone1 says:

    Reblogged this on World4Justice : NOW! Lobby Forum..

  4. Anne says:

    I will only mention one war-which was the 1939-1945 War which I remember very well, and this was fought so that no foreigner could destroy our very own Common Law Constitution to put their own Laws upon us all-at least, those that may survive the Gas Chambers and Concentration Camps. Just before that war ended, children were taken from school to the Cinema’s not to see any Walt Disney films, but to see the Opening of Belsen-so that we would never forget what man can do and did to their fellow man. Yes we were under age, and we had no idea exactly what we were going to the “pictures” to see. No permission from parents etc but all must realise that those children-including me- had, had their houses bombed and the town they lived in, bombed night after night. We went through that WAR to keep our own Common Law Constitutional Documents rather than have any foreign laws forced unon us-at least those that may have survived that war.

    Why exactly do you think that Magna Carta has indeed survived all these years eh? Because people will fight to keep it and the Bill of Rights rather that have foreigners and other so minded people destroy what so many gave their lives for in two World Wars.

  5. The fact that Magna Carta became the foundation of the constitutions of many nations including the USA stands testament to the brilliance of its authors who saw the significance in putting a restraint on the powers of the crown and a means of saving citizens from the injustices of a tyrannical judiciary. The authors were also minded that succeeding governments may be tempted to reduce the efficacy of the charter and so they included a self protection clause that basically said that anything seeking to diminish the force of the charter would itself be null and void. In January 1970, the Wilson government decided to repeal the greater part of Magna Carta. It can be presumed this was a precursor to handing control of the British government to a foreign power aka the Euopean Union. Since Magna Carta IS the foundation of what passes loosely as a constitution we can claim that the act of the Wilson government means that BRITAIN has had no legitimate government since 1970 and all the ramifications that entails!

    1. Captain Sensible says:

      @ Alison Wunderland

      Well said. Perhaps this is the very reason that there seems so much antagonism towards the Magna Carta from those involved in human rights law. The liberal progressive left are joined at the hip with the EU and ECHR and the dimished force of the MC enables the subservience to Europe they require to pursue the HR agenda, pushing it into areas it was never intended to go.

  6. Tim says:

    How refreshing! I’ve always been disappointed at how little there is of modern relevance in the Magna Carta, even though I had a print of it on my bedroom wall as a boy. Perhaps we only give it such prominence because there is so little else in our bizarre, “unwritten” constitution which we could all unite around and take pride in.

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