Professor Bill Durodié, Chair of International Relations and Head of the Department of Politics, Languages & International Studies delivered this speech at the Bath Civic Celebration on Sunday 25 October 2015.
What matters most about Magna Carta is not the document itself but the ideas it generated – it is not so much the letter of the law but the spirit that matters. As Winston Churchill once noted Magna Carta became; ‘the foundation of principles and systems of government of which neither King John nor his nobles dreamed’.
It may serve to remind some of us here, in various positions of authority today, that it is not simply what we do in the present that really matters as its legacy. And for ideas and actions to stand the test of time they need to capture – not just the spirit of the times – but the aspirations of the future. That’s a tall order for us all to follow but – history is still young – and there is still plenty of time and history ahead of us.
Much of Magna Carta of course is specific to its time – its 63 clauses can come across, in parts, as impenetrable, obscure and even just trivial. But buried among the list of grievances presented by the 25 Barons to King John were not just clauses about fish weirs or standard measures for ale. Clause 39 remains extant to this day to the effect that;
‘No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed, or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his peers/equals, or by the law of the land’.
It comes between two other, equally significant clauses relating to the need for witnesses and access to justice.
Of course, it is easy to be dismissive – as some revisionists are – and to note that ordinary people had no role or say in a contract between the King and his Barons. The peers or equals referred to in the clause above made no intimation of universal equality nor were they necessarily a presentiment of jury trials. We could also note that within a few months of its existence Pope Innocent III had declared the Charter ‘null and void of all validity for ever’.
But that would be to deny the kernel of human aspiration buried within it – a kernel that would re-emerge at significant moments in history among all those who have fought for their freedom – and who, for whatever reason, sought to draw inspiration from and make reference to the Magna Carta.
Over 400 years later, when Sir Edward Coke drafted his Resolutions that were to form the backbone of the Habeas Corpus Act of 1679 he referred explicitly to Clause 39. So too did the Levellers at the outset of the English Civil War, as did those who declared the Rights of Man and of the Citizen at the time of the French Revolution.
Magna Carta went on to inspire the Founding Fathers who drafted the Constitution of the United States of America. It was cited by Nelson Mandela at his trial in 1964 and again, surprisingly to some of you maybe, by some who protested in Tiananmen Square in 1989, as well as more recently, and in a less glowing vein, by those disputing the legitimacy of Guantanamo Bay.
Magna Carta then, is not so much legal history as living meme – and an unfulfilled one at that, as there will always be contestation in society over freedom. In that regards, I would like to offer a few caveats, because as we have seen throughout history, freedoms that are granted can just as easily be taken away. The best way to ward against this is to understand the true source of authority in the contemporary world.
The word authority itself takes its root from the author – or who it is that writes their own story or destiny, rather than having it assumed for them. It no longer derives from simply being the strongest, or the oldest (to capture memory and tradition) – nor are the Church or the Monarch the undisputed authorities they once were. Rather, in a democracy, and in addition to the fixed evidence of the natural sciences, all social authority ultimately derives from the people.
Your constituents sanction you to act on their behalf and it is for them that you act. Increasingly however, the public appear to have disengaged from the sphere of political contestation and representation in the world today. Even a healthy mandate may be better understood as a rejection of the alternative on offer rather than a principled and enthusiastic endorsement of a particular programme.
This contemporary absence of contestation allows laws to be passed and authority to rule with less appeal to, or concern for, those on behalf of which it is ultimately exercised. But whilst these may seem dormant, they have not gone away.
Far from there being an unbroken timeline of steady and progressive reform from 1215 to the present, what we actually see in relation to freedom is a continuous series of interruptions and even set-backs. For instance, there is a big distinction to be made between the Natural Rights promoted by the likes of Locke, Hume, Paine and De Tocqueville as opposed to the supposed Human Rights discourse of today.
That is because the demand for liberty that lies at the heart of the Magna Carta is an appeal to freedom, not rights. Freedoms demanded from the state – not as a rejection of it – but to ward against its overbearing nature containing people’s real potential. Today, the rights that are constantly demanded and promoted are invariably seen as emerging from and granted by the state. Consciously or not they serve to diminish the people who become little more than recipients of privileges from a benevolent state rather than active agents who are the subjects rather than the objects of history.
Today society seems more driven by so-called experts than by its own citizens - those who would nudge us to behave better rather than engage and inspire us to do so, and those who would regulate what we eat, how much we drink, how we bring up our children and even what we can say and the media we have access to.
Today the leaders of nation states forged by the people, for the people, and supposedly accountable to the people, often view themselves more as members of elite international clubs, more accountable to each other or some supposedly higher moral calling, but remote from those who they view more as problems to be managed than as solutions to their problems.
Magna Carta lives today to remind us that real freedom needs to be fought for afresh in every age because it is always simpler for the system to curtail it.
The United States once galvanised the world and inspired generations despite its relatively small size by appealing to all as being the ‘Land of the Free’. Today it, and many others, would rather repackage themselves as the ‘Land of the Safe and the Secure’.
It is just at such times that it behoves us to be reminded of the wisdom of those who did struggle for universal freedoms in the past. And maybe we ought to focus more on fighting for our freedoms than becoming recipients of rights?
John Stuart Mill – one of the Enlightenment’s greats and author of the classic text On Liberty – concluded that work by noting that;
‘A state that dwarfs its men, in order that they may be more docile instruments in its hands even for beneficial purposes, will find that with small men no great thing can really be accomplished’.
Looking forwards, those in authority, here as well as elsewhere, may need to rein in their hubris of claiming to know what is to the benefit of all and acting accordingly. Rather, we all need to work out ways of reinvigorating our democracy and re-engaging our people, viewing these as robust, rational and resourceful, rather than as fickle, vulnerable, victims as they are so often presented today.
That way we might truly capture the sense that England’s greatest gift to the world is not so much its contributions to the Arts and Literature, or even to Science and Engineering, but rather its living and breathing legal system as most famously laid down in Magna Carta.