Human rights and all that’s wrong with the Magna Carta
After a tireless round of celebrations for the 800th anniversary of the Magna Carta we should now ask, in the spirit of sobriety, why all the fuss?
The English Supreme Court judge and historian Lord Sumption in an address to the Friends of the British Library in March said, “It is impossible to say anything new about Magna Carta, unless you say something mad. In fact, even if you say something mad, the likelihood is that it will have been said before.”
In Australia, we’ve had more than our fair share of mad comments about the charter – an attempt to elevate it into a mystical source of our liberties.
Attorney-General George Brandis believes we can trace our constitution back 800 years “to the fundamental principles enshrined in the Magna Carta – limiting arbitrary power, holding the executive to account and affirming the rule of law”.
Foreign Minister Julie Bishop thinks it is “one of the defining codes of Western civilisation” and the source of inspiration for “a new paradigm in foreign aid”. Tony Abbott said on Monday that Magna Carta was one of “the most important constitutional documents of our time”.
The education minister Christopher Pyne has complained about an “over-emphasis on indigenous culture and history and almost an entire blotting out of our British traditions and British heritage”. He wants Magna Carta classes in the schools.
Indeed, the attorney-general has set this as homework for Human Rights Commissioner Tim Wilson. He’s asked Wilson “to take particular interest in promoting and educating the Australian people, in particular schoolchildren, about the importance of the Magna Carta”.
Heaven help the nation’s children if Wilson’s understanding of the Magna Carta is to be unleashed on them.
In an address to the National Press Club in February, the commissioner effused about Magna Carta as the foundation force from which flowed “Western civilisation, liberal enlightenment thinking, human rights and the creation of institutions that preserve our free society”.
As if that were not enough, the charter “ushered in an age that gave power to individuals, encouraged scientific discovery, supported the freedom to test and debate ideas and democratised the creation of wealth”.
If only. This is a piece of hyperventilated myth. Professor Nicholas Vincent at the University of East Anglia says this sort of outpouring is a “load of tripe”. Oliver Cromwell is said to have referred to the document as “Magna Farta” and that is closer to the truth.
The original 1215 charter, and there were three in all, did not give us trial by jury or habeas corpus, nor was it the origin of the rule of law – the three foundations of our liberties. Tom Ginsburg, the professor of international law and political science at the University of Chicago, describes the document as the result of an “intra-elite struggle, in which the nobles were chiefly concerned about their own privileges”.
Jonathan Sumption says the charter was directed mainly to protecting the financial interests of feudal tenants-in-chief, a small group of about 150 to 180 very wealthy men. The tied peasants, who made up half the population of England, were not part of the equation.
You can see why Magna Carta fits in so nicely with Liberal Party thinking.
At the time of the charter, criminal trials were decided by ordeal, not juries or “peers”, and habeas corpus was developed long after 1215. The king could still issue warrants for areas and override a writ of habeas corpus until the 17th century.
It was the chief justice of the King’s Bench, Sir Edward Coke, who fathered the idea that Magna Carta was the source of the rule of law, and that the law was for every man.
This was 400 years after Magna Carta and Coke was on a mission because James I had sacked him as a judge. He spent the remaining years of his life working out how to cut down the imperial notions of the Stuart monarch.
It was Coke who “invented” Magna Carta. He infused a “technical catalogue of feudal regulation” into the flowering of English liberties. He even thought that the charter was the origin of parliamentary sovereignty, yet parliament did not exist for at least half a century after it was signed and sealed.
The Americans have been even more enthusiastic about the Magna Carta than their former English overlords. Slabs of it are to be found in various constitutions of the United States states, and it is frequently referred to in superior court judgments.
As Sumption said, Coke’s analysis was “swallowed wholesale” by the American colonists and there are probably several reasons why the swallowing is still going on in Australia.
Importantly, it is helpful if political and legal authority can be adorned with some antiquity. If proponents of a cause can reach back and come up with an ancient authority, their case is established so much better.
Sumption again: “Some documents are less important for what they say than for what people wrongly think that they say. Some legislation has a symbolic significance quite distinct from any principle which it actually enacts. Thus it is with Magna Carta. It has become part of the rhetoric of a libertarian tradition based on the rule of law, that represents a precocious and distinctively English contribution to Western political theory.”
Conservatives in Australia have wheeled out Magna Carta in the fight against the twin evils of a Human Rights Act and international treaties that are part of the framework of the United Nations.
When Brandis sooled Wilson into educating the Australian population about the splendours of Magna Carta, he evoked these very notions: human rights have their source, not in post-World War II international instruments, but in the 800-year-old charter.
Wilson parroted this in his Press Club speech, where he said human rights today are “taught as something invented by the UN”.
The conservative line goes: If Magna Carta embodies our human rights, why do we need a Human Rights Act? Importantly, for Wilson’s brand of Institute of Public Affairs-inspired human rights, the number one consideration is property rights. “Property rights are human rights … Preservation of property rights is central to the human rights cause.”
This represents a shift away from the previous centrality that “free speech” was supposed to have.
But to claim that Magna Carta is the antidote to a modern charter of human rights is one of the painfully idiotic theses now deemed suitable for schoolchildren.
The Tea Party war against the UN and its treaties has been going on for some time and the Coalition is onboard with that. The refugee convention has been shredded from the Migration Act and there has been a war against the Racial Discrimination Act, which had its foundations in the international convention on the elimination of all forms of racial discrimination.
Again, the message is, Why should we respect international law when we have this golden document, extracted by force, in Latin in a glass case somewhere that no one has read?
What is so touching is the latter-day lionisation of the “rule of law”, mystically evolved from an attempt to realign the feudal power structure, from the very people who have been busily trashing it, whether it be in the case of David Hicks banged up by a dodgy “justice system”, accessing citizens’ confidential telecommunications data without warrant, or stripping citizenship on the suspicions of a minister.
Instead of being a core element in constitutional development, Lord Sumption sees Magna Carta as “a chapter in the constitutional history of 17th-century England and 18th-century America”.
The British have been busily removing bits of Magna Carta from their statutes, however the Imperial Acts Application Act transported chapter 29 of the later version of Magna Carta to New South Wales, Victoria, Queensland and the ACT: “No freeman shall be taken or imprisoned, or disseised of his freehold, liberties or free customs, or be outlawed or exiled or otherwise destroyed … but by lawful judgement of his peers or by the law of the land.”
Other bits apply in Western Australia, South Australia, Tasmania and the Northern Territory, depending on which sections of the charter remained on the British statute books when a piece of 1828 legislation from England was received in Australia.
So, interpretations restyled from original meanings still find their place here and, again, that can hardly be claimed to be a satisfactory alternative to a homegrown charter of human rights.
I can do no better than lift Lord Sumption’s words to his audience at the British Library: “So when we commemorate Magna Carta, perhaps the first question that we should ask ourselves is this: do we really need the force of myth to sustain our belief in democracy? Do we need to derive our belief in democracy and the rule of law from a group of muscular conservative millionaires from the north of England, who thought in French, knew no Latin or English, and died more than three-quarters of a millennium ago? I rather hope not.”
The blitz of charter-inspired revelries has been impressive and should see some fresh life breathed into the old fantasies. The current monarch, unlike her 13th-century predecessor, went to Runnymede voluntarily to witness the celebrations. A bunch of 500 American lawyers selected in a ballot by the American Bar Association travelled to England to kick up their heels, and at the British Library shop the merchandise department was in full bloom, flogging the Magna quacka rubber duck – which is “sure to add some cultural contemplation to your bath time”.
This article was first published in the print edition of The Saturday Paper on Jun 20, 2015 as "Human rights à la Carta".
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