This article featured in Bournbrook’s third print issue.

When London was occupied by the barons, a war with France had just been lost and King John himself had a sword pointed at him, the Magna Carta was produced and sealed in June 1215. A fortuitous turn of events precipitated England having a constitutional document that both guaranteed liberty and placed restraints on the monarch’s power.

In fact, for all the nostalgia surrounding the charter, Magna Carta itself was ignored and failed in doing what it set out to do within three weeks of it being sealed. There were also two reissues of it within a decade, in both 1216 and 1225 under King Henry III. It even failed to keep peace between the monarch and the barons, resulting in the First Barons’ War from 1215 to 1217.

The historian David Starkey highlights and criticises the nostalgia that emanates from the history of the Magna Carta. Instead Starkey says it was more of a ‘typical product of chaos’ and that it did not really do what it set out to, such as restraining the flaunting of power by the monarch.

Yet, this ‘typical product’ had begun a new culture that set precedent for the centuries following up to modern times. This precedent was of liberty and justice, particularly set by clauses thirty-nine and forty in the charter which said, respectively, that no free man can be punished except by lawful judgement and that justice to them may not be obstructed.

Perhaps most importantly, the 1225 reissue was done to gain favour so King Henry could raise taxation. From this, came the principle of taxation in return for redress of grievances. The great importance of this cannot be understated. Parliament in England in 1215 asserted this idea, and even by the eighteenth century in the USA, for example, revolutionaries were still espousing the principle: ‘no taxation without representation’.

Parliamentary sovereignty was therefore developed in English law as the most effective control on government, and this led to other parts of the kingdom’s uncodified constitution being created such as the Petition of Rights and the Bill of Rights 1689.

If one was to compare the English system we should have to those in much of the continent, it can be seen that the promises of liberty and justice and other important principles are enforced by restraining the state in England, rather than giving the state the power to enact these principles for the supposed good of its citizens as is done across the channel.

For example, after the French revolution and the invasions of Napoleon Bonaparte many European countries have legal systems based on the Code Napoléon. A key difference, as Sir Roger Scruton wrote in Fools, Frauds and Firebrands, is that whilst English common law keeps the principles of precedent, the Code Napoléon does not to the same extent. This principle of precedent was profound in growing an organic common law system, meaning it was more fair and less open to exploitation by whoever is in charge than it would have been. Documents such as the Magna Carta helped allow a system based on precedent to flourish by helping to restrict the state’s power.

Whilst many such as David Cameron have been quick to romanticise about the Magna Carta and talk of its importance, the fact is much of what was set out by it and the other parts of our constitution are being trampled over. The European Court of Human Rights of the European Union that presides over us enforces its rights through the top-down principle that comes from the Code Napoléon, and these rights trump the rights first set out by Magna Carta, the Bill of Rights and so forth. Human rights have also handed large amounts of power to the courts; Lord Sumption in his BBC Reith Lectures noted this and suggested politics should take back territory it has lost to the legal world.

What is also worth highlighting is the importance of the church’s involvement with the Magna Carta. The principles the charter had founded had been spread across England as a result of it being sent to the cathedrals of the nation, which helped in allowing the culture of liberty and restraint on the state to grow strongly. Furthermore it was Archbishop Langton who helped make the charter’s ideas be granted to all, not just to ‘free men’ as was the case in 1215.

Perhaps, in the chaos of the politics of today, a proper and renewed interest in our constitution, of documents like the Magna Carta, could spawn the sound ideas of English liberty once more?

Photo from Wikimedia Commons.

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