These recent tweets – two of which have been deleted – caught my attention:
The quintessential Rule of Law making – not always acknowledged but usually present – is the principle of legality, better known as the principle of legitimacy. It underlines that those who propose or support an ‘inherently illegitimate’ law must ‘squarely declare what they are doing’ (Lord Sumption, The Reith Lectures 2019). But, unfortunately, these assertions – without a question of a doubt – fail to correspond with this principle.
Is there a right to lawfully rebel, according to Chapter 61 of the Magna Carta?
Does its display render a business or person immune to fines or closures?
This post serves a two-dimensional purpose; firstly, expose the claims made by these assertions, and secondly, to explain – or vent disappointment on – why such claims could turn to become famous.
Magna Carta (due to it being Latin by convention, the ‘the’ is removed from the title by lawyers and historians, so; by this logic, I’m grammatically correct), Latin for ‘the Great Charter, is a Latin legal document that came into existence in 1215 (English translation is available here) and has substantially shaped the evolution of the Rule of Law. It placed King John and all future sovereigns of England within a Rule of Law. The Charter was agreed to under duress primarily because of rebellion by the country’s Barons due to years of heavy taxation and unsuccessful foreign policies. It is divided into numbered sections, called chapters (not ‘Articles’) by lawyers and historians.
Whilst the original charter was encoded into a statute in 1297, it is not explicitly recognised or relied on in Law today. Most of the encoded provisions were quashed by reason of obsolescence by 1969, although, three remain on the law book:
First, declaring the freedom of the church (Chapter 1, 1215 and 1225). This is likely to remain quiescent unless the Church of England is disestablished.
Second, the pre-existent customs and liberties granted to the City of London shall remain (Chapter 13, 1215; Chapter 9; 1225). Similar to the previous provision, it would be a rarity for this to be engaged unless the a wider and larger London government awaits the city’s future.
Third, the fundamental ‘right to liberty’, which later went on to find its reflection in Article 9 of the Universal Declaration of Human Rights and Article 5 of the European Convention of Human Rights (Chapter 39, 1215; Chapter 29, 1225).
Be that as it may, it is a rarity to find citations of these provisions made by courts and the fundamental nature of these provisions is merely considered an ornament by judges.
Chapter 61 states the following:
Does the phrase ‘lawful rebellion’ appear in Chapter 61? No, it does not.
Does the Chapter render any business or person immune to fines or closure? No, it does not.
The Chapter lays out what can be called a ‘security provision’, setting out how rights under the document can be practically enforced and secured. Such powers and privileges of ‘security’ are provided to twenty-five barons (elected by other barons), not the people. These Magna Carta provisions do not corroborate the claims made in the tweets.
Be that as it may, even if the text of Chapter 61 had provided for ‘lawful rebellion’ or rendered a business immune to fines and helped ward off enforcement officials through a mere display of Magna Carta on windows, the provision was rather evanescent. In a reissue in 1216, the condition was removed from the document. I fail to conceive of any no-nonsense explanation – no matter how contrived – as to why a nullified peace treaty between a long-dead king and his barons, only in force for a year, granting power to only 25 barons, is of any impact today. How would its mere display on a window prevent the closure of a shop under public health regulations?
Despite the profound remnants of the charter, if I were non-compos mentis, I’d quote the UDHR preamble instead (even though ‘UDHR’ sounds like the name of a Northern Ireland Paramilitary Group): “Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression….”. This strikes me as a much firmer concept of ‘lawful rebellion’ with perhaps an arguable status of Customary International Law.
Nevertheless, the serious point is about claims concerning such ancient legal documents, be it the Bill of Rights 1689 or Magna Carta. It is a rarity to see such provisions being successfully relied on upon practice, although such claims become popular due to a lack of constitutional awareness. The absence of an accessible and portable document that we can point to and say ‘this is our constitution’, and perhaps the lack of a strong tradition of ‘constitutionalism’ has led to increased reliance on ideas such as The Freeman-on-the-Land (FMOTL) movement, Displaying Magna Carta on windows and so on. The constitution – although uncodified – is perhaps perceived by the populace as a dark art reserved for the privileged who have the ability and knowledge to pore over a myriad of past precedents and laws to arrive at reasoned conclusions on constitutionally contentious matters.
I have played this post as straightforward as possible as an exercise in public understanding of the Law. I hope it elicits comprehension rather than mere derision. That is all.
A Fortiori 