New Zealand Law Society - Philip A Joseph, LLD

Philip A Joseph, LLD

This article is over 3 years old. More recent information on this subject may exist.

The Magna Carta is an enigmatic and alluring instrument. It was a practical response to needs – to rein in the excesses of King John and his zealous officials. The King agreed to meet with his barons on 15 June 1215 at a meadow called Runnymede, situated on the banks of the Thames near Windsor Castle. The barons held specific grievances against their King and, the month previously, had renounced all allegiance to the Crown. They now gathered at Runnymede to present their demands, the Articles of the Barons. On 19 June, John affixed his Great Seal to this famous instrument, “freely acceding to the laws and liberties which they [the barons] demanded”.

The Magna Carta is more than the aggregated meaning of its individual parts. Yet, it is an intensely practical document, not much given to rhetorical flourish or lofty generalities: “[I]t is keyed to the problems at hand, spelling out one by one concrete remedies for actual abuses.” The Charter was not well organised, often with related problems dealt with in scattered parts of the document. Unlike modern statutes, it was not broken down into numbered sections or chapters. This occurred only in later times to aid reference and instil coherence. The barons foisted the Charter on John but the benefits it conferred were not restricted to them. The instrument deals with diverse, unrelated subjects, such as feudal relationships, abuses by local officials, royal forests, towns and trade, debts and estates, and church and state. Much of the content has little or no relevance to the present day, which makes the Great Charter – a historical “event” captured in time – even the more remarkable. Throughout the ages, it has remained a beacon and symbol for two enduring notions – liberty and the rule of law.

One chapter towers above all others, exhibiting rhetorical flourish not found elsewhere in the Charter. Chapter 39 declared and confirmed that the King may not punish, imprison or coerce the subject in an arbitrary manner. It declares with austere clarity: “No free man shall be taken, imprisoned, disseised, outlawed, banished, or in any way destroyed, nor will We proceed against or prosecute him, except by the lawful judgment of his peers and by the law of the land.” Chapter 40 complements those famous words by declaring that justice should be available to all persons of all rank: “To no one will We sell, to none will We deny or delay, right or justice.”

These chapters enshrine perfectly the ideal of the rule of law: a government of laws and not of individuals. Their provisions are both substantive and procedural: substantive because a person may be punished only in accordance with “the law of the land”, and procedural because that may be done only “by lawful judgment of his peers”. Later restatements of the Magna Carta substituted the phrase “due process of law” for the words “the law of the land”, although the expressions have always been treated as synonymous. The phrase “due process of law” is enshrined in the 5th and 14th Amendments to the American Constitution and is emblematic of the historical rule of law. With the restatements and confirmations of the Magna Carta, two principles emerged: that the King should be subject to law and the law should be the primary means of controlling the executive power.

The events of June 1215 exemplify two features of Westminster constitutional method. The first is historical myth-making; the second is constitutional veneration. Throughout English constitutional history, appeals were made to the fundamental norms of the mythical ancient constitution whenever the balance of the constitution was contested. The barons’ uprising against John in 1215 began with a cry for the confirmation of the just laws of Edward the Confessor (1042-1066), which successive generations had upheld as embracing the subject’s protections under the ancient constitution. Five hundred years on, Sir Edward Coke and his contemporaries likewise appealed to the ancient constitution as a response to the Stuart abuses. Their purpose was to marshal arguments of fundamental principle that could denounce the Stuarts’ claims to Divine Right.

Historical myth-making engages the rhetoric of constitutional veneration. The meaning, reverence and esteem that successive generations bestowed on the Magna Carta elevated it into constitutional folklore. Often it is not the encrypted words that convey an instrument’s true meaning and significance but rather the interpretations that successive generations place on it. The meaning and significance of historically-placed instruments are ambulatory, prone to reinterpretation and restatement in accordance with perceived contemporary needs. We appeal to the historical past to address present ills and provide guidance for the future. The Magna Carta has remained in the constitutional consciousness for 800 years, and daresay will do so for generations to come.

Professor Joseph was admitted in 1974. He has written and contributed to many texts and articles on constitutional and administrative law, including the definitive Constitutional and Administrative Law in New Zealand, of which the first edition was published in 1993 and the latest (fourth) edition in 2014 (Thomson Reuters). Professor Joseph was conferred the degree Doctor of Laws in 2004 in recognition of the contribution made by his text and other writings. He consults for the law firm Russell McVeagh, is a member of the Editorial Advisory Boards of Public Law Review and New Zealand Journal of Public and International Law and is a member of the NZLS Rule of Law Committee.

Lawyer Listing for Bots