Steilen on Magna Carta and the Origins of Legislative Power @MJSteilen @UBSchoolofLaw

Matthew J. Steilen, SUNY Buffalo School of Law, has published Magna Carta and the Origins of Legislative Power as a University at Buffalo School of Law Legal Studies Research Paper. Here is the abstract.

This article argues that Magna Carta has a central place in the development of debate and deliberative politics in parliament. Its focus is chapter 12 of the Magna Carta of 1215, in which the king promised not to levy certain taxes “unless by the common counsel of our realm.” Conventionally these words are interpreted to require consent before levying a tax. Against this view, the article argues that “common counsel” meant public deliberation or debate. The source of these ideas was the cathedral schools, the forerunners of the first European universities. Evidence for this “school theory” of common counsel is presented in two parts. First is a study of the career of Stephen Langton, who taught theology in the cathedral schools of Paris. Langton came to England in 1213 to serve as archbishop of Canterbury, and period sources suggest he played a central role in encouraging dissident barons and negotiating Magna Carta. The article addresses scholarly questions about the reliability of these sources. The second part is a study of London, its government, and political culture. The article argues that London’s political traditions provided a fertile environment for Langton’s advice to the dissident barons about how to pursue their grievances against King John. Finally, the article presents an argument against the conventional interpretation of “common counsel” as a requirement of consent, addressing the meaning of the relevant Latin terms, usage in Magna Carta and related documents, law and practice relating to taxation, theories of kingship, and the meaning of “parliament.”

Download the article from SSRN at the link.

Tate on Magna Carta and the Definition of Fundamental Rights @JCTate1215 @TulsaLawReview @SMULawSchool

Joshua C. Tate, Southern Methodist University School of Law, is publishing Magna Carta and the Definition of Fundamental Rights in volume 59 of the Tulsa Law Review (2024). Here is the abstract.

The U.S. Supreme Court has long relied on the language of Magna Carta in interpreting the U.S. Constitution, particularly the Fifth and Fourteenth Amendments. In recent years, the Court has concluded that the absence of certain rights from Magna Carta—and the common law tradition more generally—means that those rights ought not to be considered fundamental today. Some Justices of the Court have also crafted a highly restrictive definition of “liberty” on the basis of Magna Carta and the common law texts interpreting it. This Article argues that the Court has viewed Magna Carta too narrowly, and that “liberty” has a broader meaning in the common law tradition. Reviewing the privileges and liberties of medieval cities that were reaffirmed in Magna Carta, the Article concludes that rights to travel, to conduct one’s business without interference, and to avoid the jurisdiction of oppressive courts are all a part of the common law tradition of liberty and should be considered deeply rooted in our nation’s history and tradition.

Download the article from SSRN at the link.

Greenlead, Chung, and Mowbray on the Launch of the Foundations of the Common Law Library (1215-1914) @grahamgreenleaf

Graham Greenleaf, University of New South Wales, Faculty of Law, Philip Chung, University of New South Wales, Faculty of Law, and Andrew Mowbray, University of Technology Sydney, Faculty of Law have published Speaking Notes: Launch of the Foundations of the Common Law Library (1215-1914), IALS, University of London, 3 October 2018. Here is the abstract.

It is now more than 800 years since the Magna Carta of 1215, soon after which English law started to document its history. In some ex-colonies of the British Empire, the common law has been part of their legal history for over 200 years. This presentation sets out the background to the Foundations of the Common Law Library (1215-1914), and the launch of a free access Prototype of the Library. This project is based on collaboration between thirteen free access Legal Information Institutes (LIIs) from across the common law world. Their pre-1915 content is now searchable from one location on the Commonwealth Legal Information Institute (CommonLII). As of 3 October 2018, the Prototype Library includes 100 databases containing over 500,000 searchable items, from 1220-1914. There are 179,000 cases; 24,000 legislation items; 300,000 gazettes; and 3,000 other items, primarily legal scholarship but also some treaties. There is substantial content from 32 pre-1915 jurisdictions. The paper includes examples of searches of the Library and different ways by which search results can be displayed. In particular, the interconnections between cases over time, and across geographical boundaries is illustrated. The necessary conditions for development from a Prototype to the fully developed Library are discussed. The role of the common law as part of the intangible cultural heritage of mankind is considered.

Download the paper from SSRN at the link.

Allison on Minimising Magna Carta and Modernising Exposition of the Rule of Law in the English Historical Constitution

John W. F. Allison, University of Cambridge Faculty of Law, is publishing Minimising Magna Carta and Modernising Exposition of the Rule of Law in the English Historical Constitution in Handbook on the Rule of Law (Christopher May and Adam Winchester, eds., Edward Elgar, 2018). Here is the abstract.

Dicey’s view of the English constitution as historical was traditional, but he promoted, and imported to that constitution, a history that was comparative, critical and modernist. His promotion of history as comparison affected his treatment of Magna Carta and his view of its importance to the rule of law. Provisions of Magna Carta provisions are compared and contrasted with Dicey’s exposition of the rule of law to explain his disdain for Magna Carta’s importance, to show the extent to which his exposition of the rule of law marked its modernisation in the English historical constitution, and to illustrate Diceyan history as comparison. The historical comparison serves as an illustration with which to consider the value of history as comparison - for Dicey in his treatment of Magna Carta and for normative interpretivists in drawing upon his rule of law. (This is a draft chapter that has been accepted for publication by Edward Elgar Publishing in the forthcoming 'Handbook on the Rule of Law' edited by Christopher May and Adam Winchester and due to be published in 2. Chapter 10 is available at: https://ssrn.com/abstract=3219209.)

Download the chapter from SSRN at the link.

Farrell and Hughes on Magna Carta and the Invention of "British Rights" @routledgebooks

Michelle Farrell, University of Liverpool, School of Law and Social Justice, and Edel Hughes, University of Limerick, are publishing Magna Carta and the Invention of 'British Rights' in Human Rights in the Media: Fear and Fetish (Michelle Farrell, Eleanor Drywood, and Edel Hughes, Routledge, 2018) (forthcoming).

In this chapter we argue that the antipathy towards human rights, and the Human Rights Act in particular, that is evident in certain sections of the media and political establishment, lies partly in its relationship with the European, and, therefore, foreign or ‘alien’, system of human rights protection. Somewhat paradoxically though, those who are most trenchant in their criticisms of the Human Rights Act nevertheless stress that Britain is a nation founded upon human rights. Through the lens of the Magna Carta we examine the invention of the tradition of British rights and how the Charter has been co-opted by those who seek to foment opposition to the Human Rights Act and, albeit to a lesser extent, by those who seek to defend the Act by demarcating a clear line of history between the Charter and the Act. Both approaches, we suggest, serve to crowd out the space required for a rational critique of rights.

Download the essay from SSRN at the link.

Allison on Minimizing Magna Carta and Modernizing Exposition of the Rule of Law in the English Historical Constitution @ElgarPublishing @Elgar_Law

John W. F. Allison, University of Cambridge Faculty of Law, has published Minimising Magna Carta and Modernising Exposition of the Rule of Law in the English Historical Constitution as University of Cambridge Faculty of Law Research Paper No. 48/2018. It is forthcoming in Handbook on the Rule of Law (Christopher May and Adam Winchester, Elgar, 2018). Here is the abstract.

Dicey’s view of the English constitution as historical was traditional, but he promoted, and imported to that constitution, a history that was comparative, critical and modernist. His promotion of history as comparison affected his treatment of Magna Carta and his view of its importance to the rule of law. Provisions of Magna Carta provisions are compared and contrasted with Dicey’s exposition of the rule of law to explain his disdain for Magna Carta’s importance, to show the extent to which his exposition of the rule of law marked its modernisation in the English historical constitution, and to illustrate Diceyan history as comparison. The historical comparison serves as an illustration with which to consider the value of history as comparison - for Dicey in his treatment of Magna Carta and for normative interpretivists in drawing upon his rule of law.

Download the chapter from SSRN at the link. 

Kendall on Magna Carta: An Old Curiosity, a Mere Social Fact, or a Modern Constitutive and Substantive Part of American Law? @JMLSChicago

Walter J. Kendall, John Marshall Law School, has published Magna Carta - An Old Curiosity, A Mere Social Fact, or a Modern Constitutive and Substantive Part of American Law? Here is the abstract.

Magna Carta an argument: both the beginning of and continuing vital part of Anglo-American law.

Download the article from SSRN at the link.

DesBaillets on Magna Carta in Canada at 800: Happy Birthday or Identity Crisis? @DDesBaillets

David DesBaillets, University of Quebec at Montreal (UQAM), Faculty of Law, has published Magna Carta in Canada at 800: Happy Birthday or Identity Crisis? Here is the abstract.

When Canada celebrated the 800th anniversary of the Magna Carta in 2015, it did so in grand fashion. This event was marked by a nationwide tour, essay writing contests and countless speeches made by politicians, jurists and academics on its central place in the legal foundation of Canadian human rights, Constitutionalism, judiciary and representative democracy. As has been said enthusiastically by any number of Canadian legal historians “the Magna Carta…informs the legal system in English Canada, and the Canadian Charter of Rights and Freedoms.” However, a more critical lens is needed in order to better understand this document and the way in which it has shaped and continues to influence law, proceduralism and constitutionalism in Canada’s modern legal institutions. Starting from the premise that the ways in which justice is represented is often a reflection of the values that legal institutions aspire to represent, this paper demonstrates the power of Magna Carta as a legal symbol to legitimize and create a rights based discourse that portrays our current human rights paradigm as originating in an ancient historical and mystical common law past. In the first half, it looks at the semiotic, historical, anthropological and metaphorical uses of Magna Carta as well as in present day legal institutions and provides an overview of its specific relevance to the modern human rights narrative in Canada’s judiciary. The second half of this paper will re-examine these symbols with a critical lens in order to demonstrate the reality of Magna Carta as a human rights instrument without formal legal status. The significance of a foreign statute which has no direct bearing on Canadian human rights will be scrutinized in its, human rights law, criminal law, indigenous law and administrative law contexts. The primary sources of legal doctrine, jurisprudence, and constitutional interpretations involving Magna Carta as well, secondary sources of critical analysis will be used in attempt to demonstrate that the influence of Magna Carta, both historically and in contemporary discourses on human rights, can be seen as both positive and negative. Finally the paper will describe the paradox of the Magna Carta as both a source of proceduralism, on the one hand, and substantive rights and civil liberties, on the other, in the contentious Canadian debate between these two interrelated conceptions of human rights law as it relates to contemporary anti-terror legislation.

Download the article from SSRN at the link.

Rowberry on Forest Eyre Justices in the Reign of Henry III (1216-1272)

Ryan Rowberry, Georgia State University College of Law, is publishing Forest Eyre Justices in the Reign of Henry III (1216–1272) in volume 25 of the William & Mary Bill of Rights (2016). Here is the abstract.

Without the Charter of the Forest there would literally be no Magna Carta. The charter acceded to by King John in 1215 was simply known as the Charter of Runnymede. It was not until February 1218 — one year after the clauses related to forest law in the Charter of Runnymede (articles 44, 47, 53) were excised, added to and reissued as a separate, smaller charter in 1217 named the Carta de Foresta — that we have evidence for contemporaries calling the physically larger 1217 reissuance of the Charter of Runnymede ‘Magna Carta’ (large charter) to distinguish it from its smaller companion charter. In 1225 Henry III reissued Magna Carta and the Charter of the Forest as companion charters in exchange for “a tax of one-fifteenth of all movable goods.” Later, in 1297, Edward I also confirmed both charters (Conformatio Cartarum) in order to access monies from his subjects to support military campaigns in Scotland and on the continent. And from the end of the thirteenth century, the Magna Carta and the Charter of the Forest can be found as the first two statutes in the royal statute rolls and in many of the lawyer’s statute books that remain from around that time. But compared to Magna Carta, its more diminutive sibling, the Charter of the Forest, has languished in relative obscurity. This is largely due to the fact that unlike the common law, which continued to survive and adapt, forest law became largely extinct in England around the same time as the flightless Dodo bird in the second half of the seventeenth century. By the eighteenth century the forest law was already regarded as an “unprofitable anachronism.” Forest law’s demise centuries ago may explain why itinerant forest eyre justices have received almost no prosopographical attention compared to justices, sergeants, and clerks of the central royal courts, as well as the itinerant royal justices in general eyre, the majority of whom have been identified and examined in numerous monographs, articles, lists, and potted biographies. This article will begin to reclaim some of these forest eyre justices by identifying, listing, and analyzing all forest eyre justices during the reign of Henry III (1216-1272). While some may contend that there is minimal merit in learning about justices from a largely obsolete, archaic legal system, this article will show that forest eyre justices were closely related to, and in many cases indivisible from, common law justices, thus providing us another lens through which to view the development of the nascent common law in the thirteenth century. From a more granular perspective, despite the eventual decline of forest law it is arguable whether Magna Carta or the Charter of the Forest had a more significant impact on the day-to-day lives of thirteenth century contemporaries, particularly the poor who lived in forest areas.

Download the article from SSRN at the link.

McSweeney on Salvation By Statute: Magna Carta, Legislation, and the King's Soul @WMLaw School

Thomas J. McSweeney, William & Mary Law School, has published Salvation by Statute: Magna Carta, Legislation, and the King's Soul in volume 25 of the William & Mary Bill of Rights Journal (2016). Here is the abstract.

Scholarship on Magna Carta has advanced quite a bit in the past 100 years. The numerous articles and books written for the 700th, 750th, and 800th anniversaries of the Charter have changed our understanding of that text in significant ways. Scholars have tried to escape from the anachronistic interpretations of earlier generations of lawyers and scholars. But as much as we have tried to flee from the long-dominant Whig narrative of Magna Carta, a narrative that relegates Magna Carta to a predefined role as a predecessor to the American Bill of Rights, that narrative still affects the way historians approach the Charter and blinds us to things that have been staring us in the face for centuries. This article examines a curious phrase in Magna Carta that has never received any serious commentary from the historians. The second sentence of Magna Carta states that King John issued it “for the salvation of our soul and for the souls of all our ancestors and heirs[.]” No one has thought to ask why a person writing in 1215 would have thought it plausible that Magna Carta, a charter of liberties, could save the soul of the king, as well as those of his ancestors and heirs. This article will examine the different ways in which the language “for the salvation of our soul and the souls of our ancestors and heirs” appeared in the context of royal justice in the twelfth and thirteenth centuries. It will suggest that medieval English kings could and did conceive of the law and their administration of it, both through acts of judgment and acts of lawgiving, as a treasury of potential alms from which they could draw to atone for their past sins. This opens up new possibilities for the study of the early history of English legislation.

Download the article from SSRN at the link. 

Hooper on the Historical and Legal Limits of Arbitrary Government Decision Making @SydneyLawSchool

Grant Robert Hooper, University of Sydney Law School, has published From the Magna Carta to Bentham to Modern Australian Judicial Review: Themes of Practicality and Spirituality at 84 Australian Institute of Administrative Law Forum 22 (2016). Here is the abstract.

This article considers the interplay or balance between a need to allow the government to govern and the notion that law contains a substantive content to protect the individual from arbitrary government decision making. To illustrate that this search for balance is not new, and despite 800 years is not resolved, this paper starts with the Magna Carta but then proceeds to consider influential historical figures chosen for the impact they have had, and continue to have, on the modern understanding of what limits can and should be imposed on government and how these limits may be legitimately applied by the judiciary. The historical figures chosen are Lord Coke, Blackstone, Dicey, Bentham and Austin. They in particular highlight what might be described as some of the original and core underlying values that shape the judicial response to Parliament’s modern efforts to increase governmental power. In this regard, it will be contended that while modern judicial review is essentially practical, there persists a touch of spirituality and without understanding this it is not possible to appreciate the balance that the High Court so often seeks to achieve between increased governmental power and protecting individuals from arbitrary government decision making. This “balance” will be explored by examining some examples of the modern form of the Magna Carta’s “law of the land” or “due process”, natural justice. More specifically it will touch upon three well-known modern developments, being: the judiciary’s re-birth, defence, reformulation and re-badging of natural justice; the constitutionalisation of judicial review; and the adoption of a broader “purposive” approach to statutory interpretation generally.

Download the article from SSRN at the link.

Joshua Tate Speaks on Magna Carta and the Charter of the Forests at LSU

Via Aaron Sheehan-Dean, Fred H. Frey Professor of  History, LSU:

The Modern History Colloquium presents a lecture by Professor Joshua Tate (SMU Law School) "Magna Carta and the Charter of the Forests" on Monday, February 13 at 12:00 PM, 236 Coates Hall, on the LSU Campus.

The year 2017 marks the 800th anniversary of the Charter of the Forest issued by King Henry III of England. The Charter of the Forest allowed Englishmen to use certain common lands wrongly claimed by King John and his predecessors. Although the rights granted were narrower than the various procedural rights in Magna Carta, they had relevance for all the king’s subjects, not just the barons and great lords. This lecture will use these two charters as a jumping-off point for a discussion of what rights ought to be considered fundamental and whether Magna Carta deserves its longstanding reputation as one of the most important documents in legal history.

Joshua Tate’s research and teaching focus on legal history, property, and trusts and estates. He has been a full-time faculty member at SMU Dedman School of Law since the fall of 2005. He is currently engaged in a study of the development of property rights and remedies in medieval England, focusing on issues of jurisdictional conflict with regard to rights of presentation to churches. Society for Legal History.

Voss @Juss_Professor on the Royal Prerogative in Colonial Constitutional Law

Satvinder Juss, King's College London; Dickson Poon School of Law; A. Dickson Poon Transnational Law Institute, is publishing The Royal Prerogative in Colonial Constitutional Law as Chapter 11 of Landmark Cases in Public Law (Juss and Sunkin, eds., Hart-Bloomsbury, 2017). Here is the abstract.

The Chagos Islanders Case will be remembered for its abandonment of the common law’s affirmation of a Subject’s right to be free from exile, when more than a decade ago the British Government in the exercise of its imperial powers decided upon the permanent exclusion of an entire population from its homeland for reasons unconnected with their collective well-being. Paradoxically, freedom from exile is a right guaranteed in the folklore of the UK, as demonstrated only too vividly in the celebrations of the 800th Anniversary of Magna Carta in 2015. A judgment given by Laws LJ in the Divisional Court in 2000 when the matter first arose in challenge brought by Louis Oliver Bancoult, a Chagos Islander, against the actions of the British Goverment, and subsequently affirmed most resoundingly by Sedley LJ in the Court of Appeal in 2007, had upheld this historic right. They had held that government objectives could not lawfully be accomplished by the use of prerogative powers. The Crown has to exercise governance over the Colonies as a Crown function. The interests of these territories are not coterminous with interests of the UK state and its allies. The governance of each colonial territory is in constitutional principle a discrete function of the Crown. However, in 2008 the House of Lords (as it then was) overturned these decisions, only to revisit the question again in judgment delivered in 2016, thus demonstrating the particularly protracted and vexatious nature of the issues which the Government had sought to determine through the ill-judged mechanism of the Royal Prerogative. The Bancoult saga is the longest Supreme court case ever heard. The 2008 decision was not its last. In 2016 the Supreme Court gave a split decision, but which nonetheless still fully acknowledged that its earlier 2008 decision had moved the law forward and that, in the words of Lord Mance giving the majority decision (and who had also given judgment in 2008), the exercise of prerogative powers were “susceptible to judicial review on ordinary principles of legality, rationality and procedural impropriety.” Yet, the plight of the Chagos Islanders remained unchanged in 2008 as it did in 2016 – such that further legal challenges remain likely. The story is not yet over and this analysis is an attempt to locate the Bancoult litigation in its proper political context and to suggest that the House of Lords in 2008 could – and indeed should – have a taken a different decision for reasons connected entirely to the fact that the Government was using prerogative powers in the context of colonial governance.This has serious implications both for the future use of the Prerogative and for Public Law in general.

Download the chapter from SSRN at the link.

John Baker's Forthcoming Book on the Reinvention of Magna Carta, 1216-1616

John Baker, Cambridge University, is publishing The Reinvention of Magna Carta, 1216-1616 (Cambridge University Press, 2017) (Cambridge Studies in English Legal History). Here is a description of the book's contents from the publisher's website.

Magna Carta was largely ineffective for practical purposes between the fourteenth century and the sixteenth, late-medieval law lectures giving no hint of its later importance. A treatise by William Fleetwood (c.1558) was still in the traditional mould, but the lectures of the 'Puritan' barrister and MP Robert Snagge in 1581, and the speeches and tracts of his colleagues, advocated new uses for it. After centuries of oblivion, in 1587 there were eight reported cases in which chapter 29 was cited. Sir Edward Coke made extensive claims for chapter 29, linking it with habeas corpus, and then as a judge (1606–16) he deployed it with effect in challenging encroachments on the common law and the liberty of the subject. This book ends in 1616 with the lectures of Francis Ashley, summarising the effects of the new learning, and then Coke's dismissal for pushing his case too hard. A challenging new account.

Provides a new history of early modern constitutional law, concentrating on the protection of personal liberties through recourse to Magna Carta

Shows how constitutional developments occurred in practice, looking at real cases and highlighting the importance of unpublished legal texts

Includes new biographical and bibliographical material, which will be of interest to historians both of historical thought and of legal literature

Bilder on Charter Constitutionalism, Edward Coke, and the Virginia Charter

Mary Sarah Bilder, Boston College School of Law, is publishing Charter Constitutionalism: The Myth of Edward Coke and the Virginia Charter in volume 94 of the North Carolina Law Review. Here is the abstract.

Magna Carta’s connection to the American constitutional tradition has been traced to Edward Coke’s insertion of English liberties in the 1606 Virginia Charter. This account curiously turns out to be unsupported by direct evidence. This Article recounts an alternative history of the origins of English liberties in American constitutionalism. A quarter century before the Virginia charter, provisions assuring liberties to English children born overseas were inserted in the earliest letters patent. These provisions drew on an older practice extending liberties to children born overseas. Because of these provisions, persons born in the colonies were guaranteed the same liberties as those born in England. This explanation suggests new appreciation for the interpretive flexibility of early written constitutionalism. As the liberties provisions reveal, words described the underlying concept but were not used to fix a precise definition. Thus, various words could be altered over time to ensure that the concept adapted to contemporary political and legal issues. Throughout, however, the assurance remained that those born in the colonies possessed English liberties. This Article calls this genre of early written constitutionalism “charter constitutionalism” to emphasize this elastic interpretive practice. Charter constitutionalism deserves recognition as a founding strand of American constitutionalism.

Download the article from SSRN at the link.

Lerner on The Troublesome Inheritance of Americans in Magna Carta and Trial by Jury

Renee Lettow Lerner, George Washington University Law School, has published The Troublesome Inheritance of Americans in Magna Carta and Trial by Jury at Magna Carta and its Modern Legacy 77-98 (Robert Hazell and James Melton eds., Cambridge University Press 2015). Here is the abstract.

Many Americans insisted on their traditional rights as Englishmen in the conflict with Britain before and after declaring independence. Magna Carta — particularly the provisions concerning the “law of the land” and “judgment of his peers” — embodied fundamental rights of Englishmen that American revolutionaries were willing to fight to protect. As Edward Coke had found more than a century before, American revolutionaries understood that invoking such an ancient document inspired resistance to authority. Americans cherished Magna Carta most because of its association with jury trial. Juries had proved useful to Americans in their conflict with Britain. Colonial American juries had nullified the law of seditious libel, customs taxes, and debts to British merchants. It was no wonder Americans held the jury in high esteem, at least until they had to run their own governments. Americans filled their constitutions, both federal and state, with rights to jury trial. Several American states even included translations of provisions from Magna Carta in their constitutions, enshrining the “judgment of his peers.” Once Americans had achieved independence and formed the new republics, judges faced the task of interpreting these thirteenth-century provisions as eighteenth- and nineteenth-century law. American judges quoted Blackstone and historical treatises. Through the nineteenth century, however, American enthusiasm for juries waned. The much-repeated phrases from Magna Carta became a flimsy screen, masking the steady decline of jury power.

Download the essay from SSRN at the link.

Krygier on Magna Carta and the Rule of Law Tradition

Martin Krygier, University of New South Wales Faculty of Law, is publishing Magna Carta and the Rule of Law Tradition in Department of the Australian Senate Papers on Parliament Series. Here is the abstract.

The argument of this paper has five parts. First I sketch two opposed views, those of Magna Carta Votaries, True Believers, on the one hand, and Sceptics, on the other. I believe both are mistaken, indeed both make the same mistake on the way to opposite conclusions. Second, I introduce a theme that I think is less banal than it sounds (I hope that’s true, because it does sound pretty banal): Everyone is from Somewhere. Then I move from the first part of my title, Magna Carta, to the second part, the rule of law tradition. I treat it in three stages, by saying something first about tradition, then about legal tradition, and finally about rule of law tradition. My conclusion supports two cheers for Magna Carta and three for rule of law tradition.

Download the paper from SSRN at the link.

DesBaillets on Magna Carta and Contemporary Canadian Law

David DesBaillets, University of Quebec at Montreal (UQAM), Faculty of Law; University of Ottawa, Faculty of Law, has published Symbolism and Significance: The Place of Magna Carta in Contemporary Canadian Law. Here is the abstract.

When the e-mail arrived in my inbox inviting me to view the Magna Carta I was, as I imagine any law student would be, utterly thrilled. The event was part of the international celebration of the 800th anniversary of the ancient Latin legal document from the 13th century BCE that would see a handful of surviving copies tour the world, including a Canadian sojourn, and be given the sort of red carpet treatment normally reserved for rock stars and foreign heads of State.

Download the article from SSRN at the link.

Simon Chesterman On the Myth of Magna Carta

Simon Chesterman, National University of Singapore, Faculty of Law, has published The Myth of Magna Carta — Or, How a Failed Peace Treaty with French Aristocrats Was Reinvented as the Foundation of English (and American) Liberty. Here is the abstract.

Magna Carta bears an iconic status in legal history. Signed eight centuries ago by King John at Runnymede, near Windsor, it laid the foundations for constraints on arbitrary power — the basis for the rule of law, democracy, and human rights. The only problem with the historical account is that almost none of it is true. The agreement at Runnymede was not a constitutional document intended to limit power but a peace treaty to preserve the King’s rule. Despite many paintings and a commemorative £2 coin showing him holding Magna Carta and a quill, King John never signed it. Oh, and it was not called Magna Carta.

Download the article from SSRN at the link.

The Rule of Law and Magna Carta

R. George Wright, Indiana University School of Law, has published The Magna Carta and the Contemporary Rule of Law Problem as Indiana University Robert H. McKinney School of Law Research Paper No. 2015-29. Here is the abstract.

This Article seizes upon the 800th anniversary of the Magna Carta to draw attention to important problems associated with the contemporary rule of law. In particular, the Article discusses the rule of law as a systematically undersupplied public good. The Article then notes the insufficiency of standard incentive-based responses to rule of law problems. The Article considers finally the idea of ‘faithfulness’ in the law, and the role of civic and personal virtues in appropriately sustaining the rule of law.

Download the text of the article from SSRN at the link.