Teaching Comparative Government and Politics

Tuesday, June 16, 2015

Precedent no more?

I am not aware of a comparative textbook that makes a big deal of the Magna Carta, but I'd wager that all of them mention it. Should they? Or should they just note that its mythology is part of the political culture of the UK? and the USA?

Magna Carta, Still Posing a Challenge at 800
It is relatively unsplashy, as these things go — not very long, not very elegantly written, just 3,500 or so words of Medieval Latin crammed illegibly onto a single page of parchment.

But Magna Carta, presented by 40 indignant English barons to their treacherous king in the 13th century, has endured ever since as perhaps the world’s first and best declaration of the rule of law…

On Monday, Magna Carta’s 800th birthday [was] observed with an extravagant ceremony in Runnymede, the meadow near Windsor where King John of England capitulated to the barons’ demands and affixed his royal seal to the original document all those years ago.

The event... feature[d], among other things, a group of 500 American lawyers… a host of England’s foremost jurists and scholars and… Queen Elizabeth II, attending not on sufferance, but of her own free will…

But there are some legal scholars who believe that the charter is actually not such a big deal. Our adulation of it, they say, comes from what we believe it to have been in hindsight — not what it was at the time…

“The myth of Magna Carta lies at the whole origin of our perception of who we are as an English-speaking people, freedom-loving people who’ve lived with a degree of liberty and under a rule of law for 800 years,” said Nicholas Vincent, a professor at the University of East Anglia and the author of “Magna Carta: A Very Short Introduction.”

“It’s a load of tripe, of course. But it’s a very useful myth.”

For one thing, as Jill Lepore pointed out recently in The New Yorker, the original Magna Carta in fact lived a short life and died an obscure death.

It was not seen at the time as marking a great moment in democratic history. Nobody had a chance to follow any of its provisions. Almost immediately after agreeing to it, King John prevailed on the pope to annul it. (In an instance of, perhaps, poetic justice, John died of dysentery shortly afterward.)

Also, it was a narrowly fashioned agreement between a small group of privileged people and an even-more-privileged monarch; there was no mention of regular people or of democracy as we know it…

“It’s one of the many, many things in the Anglo-American legal tradition that will eventually grow and mutate and be misinterpreted as something that’s important,” Akhil Amar, a professor at Yale Law School…

“There’s no question that it’s had a substantial and enduring impact on the development of law in the United States of America,” said William C. Hubbard, president of the American Bar Association. “The idea that the law comes from the people, and it’s not the law of the king, is fundamental.”…

But as a sign of Magna Carta’s enduring relevance, a provision of the charter holding that, “To no one will we sell, to no one deny or delay right or justice,” was cited last month in a Supreme Court decision on judicial integrity. Upholding a Florida law that forbids judges to solicit campaign contributions, Chief Justice Roberts cited the relevant passage and wrote: “This principle dates back at least eight centuries to Magna Carta.”

“There you have it,” Mr. Hubbard said. “To think that those principles have survived 800 years gives me great hope for the future.”

Of course, there were souvenirs available at Runnymede yesterday:

What Monty Python can teach us about Magna Carta on its 800th birthday "So on this 800th anniversary of Magna Carta we should remember that good things can happen for accidental reasons."

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