MAGNA CARTA’S LEGACY
The contemporary strength of the Magna Carta is as a foundation of what is described as the rule of law, even though clauses 12 and 14 from the 1215 Charter of Liberties did not survive. Commentators refer back to those clauses and to the mere fact of a King agreeing at that time to confirm existing laws and to place himself under their operation, even in limited respects, as support for the rule of law. It is said to show that no person – not even the King – is above the law. Further, the process whereby agreement was reached is said to reinforce the aspect of the rule of law that holds that the people should not only be governed by the law, but be willing to be so. That is likely only if those in power are also subject to the law.
The events of 1215 became an enduring symbol and an unchallengeable myth. Through the centuries various interpretations have been placed on the participants in those events: eg King John as victim; the role of the barons; and/or the Pope – but the document continues to inspire.
The rule of law is one of the concepts supported by the Magna Carta and it may conveniently be described in the words of the Secretary-General of the United Nations in 2004:
“For the United Nations, the rule of law refers to a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency.”
The Magna Carta has provided inspiration and support for progressive development in governance worldwide since the Middle Ages. It is said to stand for:
- continuation of basic law – of a framework for order and peace fashioned by and from the people – upon which contemporary laws are made and rest and which is innate and inalienable;
- the triumph of liberties over tyranny;
- the rule of law itself – that no one is above the law, no matter how powerful, even a monarch, and that justice will be done according to certain laws that are knowable in advance;
- the value of democratic processes in the government of the people;
- the value of the separation of powers;
- independence and professional competence of the judiciary;
- equality before the law and due process (including the presumption of innocence and burden of proof on the prosecution);
- trial by a jury of one’s peers (as it later developed);
- “no taxation without representation”;
- freedom from arbitrary punishment and proportionality in sentencing.
It is also said to have been the origin of the law of trusts and an early example of the protection of women’s rights (in that widows were not to be forced to remarry and would take their inheritances). It also dealt with a multitude of local and temporal regulations that are of less enduring significance but which secured common freedoms for that time.
Magna Carta, as it has come to be understood and called upon over 800 years, operates as a shield against tyranny, abuse of power and oppression of the governed. It has become the talisman of a society in which the spirits of tolerance and democracy reside. In the English common law system, it is the touchstone of the rule of law and a continuing inspiration to all.