Celebrating the Magna Carta

By David W. Rivkin[1]President of the International Bar Association

We do not honor the 800th anniversary of the Magna Carta because of its importance as an historical event.  As many historians have noted, King John soon disavowed the document and died soon after that, and Pope Innocent III annulled it.  While the Magna Carta did not lead to immediate peace, King Henry III’s Regent re-issued it (with some revisions) in 1216 and 1217 to create peace with the barons, and King Henry III did so himself in 1225 to gain cooperation and taxes from the barons.  When King Edward I re-issued the Magna Carta in 1297, it became part of English statutory law.

In celebrating the Magna Carta’s anniversary, however, we do not reflect on the importance of the peaceful resolutions of these disputes or the impact they had on English or world history.  These were not defining events like the Glorious Revolution in 1688 or the American Revolution in 1776 that changed the course of history.

Instead, we celebrate the anniversary of the Magna Carta because of its enduring principles.  These principles inspired those revolutions and more.  Since Edward Coke’s day, they have served as the critical explanation of the limits of sovereign power.  As an American, I am grateful for the document that recorded peace between King John and his barons five and a half centuries before our Revolution.  The Magna Carta provided the legal basis for the Founding Fathers to assert the rights of Americans to fundamental freedoms.  Paul Revere engraved the Liberty Bowl in 1768 with the words “Magna Carta” to while telling the story of revolutionaries who had fought tyrants; Massachusetts currency at the time also include the words.  Core principles of the Magna Carta were enshrined in the US Constitution.

The 800th anniversary therefore provides an occasion to focus on these principles and their continuing importance.  The rule of law has never been more important.   The world has become completely interconnected.   Every economy depends the rest of the world for trade and investment.  Climate change is a global issue that cannot be solved without global cooperation.  Culture, both serious and pop, knows no borders; a YouTube video can be viral in moments worldwide.  For all these reasons, the manner in which countries respect or disrespect the rule of law, internationally and domestically, has an impact on all other countries.  Countries that follow the rule of law can reasonably ask others to do the same; countries that succeed despite disregard for the rule of law unfortunately provide an example to others that it is not a necessary component for success.

Commentators generally and rightly pay homage to Clause 39 of the Magna Carta, which embodied the right to due process.  Indeed, that is a fundamental protection of civil liberties; the nobles understood it then and we know it now. However, many other clauses of the Magna Carta deserve our attention for their perceptiveness in understanding how to create a government ruled by law and not by power.

The rule of law requires that it be applied equally to the powerful and the powerless.  In order for that to occur, the judiciary must be independent and able to interpret the law without government interference.  Clause 24 recognized this principle; it required, “No sheriff, constable, coroners or other royal officials are to hold lawsuits that should be held by the royal justices.”  Without an independent judiciary, with the power to interpret laws and to apply justice impartially, many of the other protections of democracy will disappear.

But the drafters of the Magna Carta also understood that, for the judiciary to provide proper justice, limits on judicial power were also needed.  Judges had to be properly qualified:  “We will appoint as justices, constables, sheriffs or other officials only men that know the law of the realm and are minded to keep it well.” (Clause 45)  Clause 38 required that no one could be put on trial “without bringing credible witnesses to the charge.”  Clause 20 set forth the principle of proportionality, which remains a core component of international law, required that “a free man shall be fined only in proportion to the degree of his offence … but not so heavily as to deprive him of his livelihood.”   In light of the concerns about corruption in the judiciary that exists in many countries today, it is worth noting that Clause 40 provided, “To no one will we sell, to no one deny or delay justice.” The US Supreme Court has also cited this clause as a basis for the right to a speedy trial.

The drafters of the Magna Carta understood that many other safeguards were needed to limit the power of government. Clauses 28, 30 and 31 required that the government would not take the property of its citizens without their consent and without fair payment:  for example, “no constable or other royal official shall take corn or other movable goods without immediate payment.”

The Magna Carta of 1215 even provided a means to enforce the many promises King John made.  A committee of four barons could raise any grievance with the King, and if the King did not satisfy that grievance, a Committee of 25 barons could determine the grievance.  If they agreed with the grievance, they had the power to take over the King’s authority.  This clause, however, was so dangerous to sovereign authority that it was deleted from subsequent versions.

These principles did not derive from the imagination of a few men in a swampy field at Runnymede.  Their universality is demonstrated by the fact that, at about this same time period, the nobles of Catalonia and Aragon entered into a similar pact with their king.  The Oath of Aragon stated, “We, who are as good as you, swear to you, who are no better than us, to accept you as our king and sovereign, provided you observe all our liberties and laws, but if not, not.”  The limits on the power of sovereigns and their duty to comply with the law could not be stated more succinctly and effectively.  The Oath also shows that the celebration of the Magna Carta should not be limited to common law countries, for these principles are deeply rooted in every tradition.

The International Bar Association is proud to be working to enhance the rule of law throughout the world.  Our Human Rights Institute regularly trains judges and builds institutions to ensure the independence of the judiciary.  It criticizes countries that stray from these principles, whether they be developed or developing, North or South.  The IBA’s new Judicial Integrity Initiative is focusing on the roots of judicial corruption and how it can best be combatted.  And the 50+ regular committees of the IBA routinely work to improve the law and its practice, in order to further the ideals of the Magna Carta that government must rule only by the dictates of the law.

[1] David W. Rivkin is President of the International Bar Association.  He is Co-Chair of the International Dispute Resolution Group of Debevoise & Plimpton LLP, based in its New York and London offices.


 

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