Magazine | November 19, 2015, Issue

When Law Began to Rule

It could well be argued that the signing by King John, and subsequent issuing, of Magna Carta in 1215 was the most decisive episode in English history. Contemporaries were in no doubt about its importance. Royal clerks set about immediately making copies and sealing them. At least 20 were made and put in the archives of cathedrals and other safe places. The charter, suitably amended, was reissued many times, notably in 1217 and 1225, and in derivative documents hundreds of times.

Although Magna Carta is now 800 years old, it is amazing what has survived. Runnymede, the meadow on the Thames where it was signed, is much as it was then. Four of the original copies are still intact. Two are in the British Library. One is in Lincoln Cathedral, another at Salisbury, both original places of deposit. Official documents from the first 50 years of its history that can still be studied can be numbered in hundreds, perhaps thousands.

What is notable about this agreement is its comprehensibility. Clauses 39 and 40 read:

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 equals or by the law of the land.

To no one will we sell, to no one deny or delay right or justice.

Political liberty emerged more fully in England in the 17th century, when constitutional lawyers were able to use Magna Carta to firmly establish fundamental privileges and rights, such as trial by jury, habeas corpus, equality before the law, freedom from arbitrary arrest, and parliamentary control of taxation. The charter was seen by the English not just as a law, the first of the Statutes of the Realm, but almost as a person, a living historical giant. Sir Edward Coke, greatest of the 17th-century constitutional lawyers, discussing amendments by the House of Lords to the Petition of Rights, declared: “Magna Carta is such a fellow that he will have no sovereign.” The Founding Fathers took the living image over in its entirety and referred to Magna Carta as “sinewy” and “tenacious,” as though it were a person.

Now the remarkable thing about Magna Carta is that it long antedated the struggle for parliamentary democracy or any form of representative government. King Edward I’s first parliament of knights and burgesses, held in London on April 25, 1275, came 60 years after Magna Carta and could not have been held without it. The Great Charter came four centuries before the English Civil War, the execution of the king, and the triumph of the House of Commons, five centuries before the American Revolution and the ratification of the U.S. Constitution, and six centuries before Britain’s Great Reform Act.

The logic behind all this originated in the Great Charter, which established, once and for all, the supremacy of the rule of law. What King John, in signing it, was admitting — and what all his successors were forced to admit in turn — was that he was subject to the law, like anyone else. In its clauses were enshrined the salient fact that the sovereign state was a state not of kings or individuals, however rich or mighty or numerous, but of laws, and that the laws must always be supreme.

The fact often tends to be forgotten that the rule of law is far more important than the form of government. Churchill may well have been right when he argued that democracy was the best form of government only in the sense that it was less objectionable than any other. But he might have added that none was any good unless the rule of law underlay it. And the rule of law must be established first. This of course was the fundamental fact that made the so-called Arab Spring such a nonsense. A dozen or so countries changed their constitutions during the spring of 2010, all to various forms of parliamentary democracy. But none established the rule of law, so all of them foundered the moment they were subjected to serious strain.

There is a long history of what I call the democratic illusion. The French Revolution established what its founder called universal male voting. It collapsed at what its nemesis, Napoleon Bonaparte, called “the first whiff of grapeshot.” France has had nine constitutions since then: all precarious. Garibaldi and Mazzini united Italy and gave it a universalist constitution. But they had no magna carta in their history, and therefore no firmly established rule of law, so Mussolini made short work of their national assembly. The Weimar Republic had a universally elected Reichstag, and much else. Hitler, in 1933, destroyed it in a month. Not least, the new Soviet state that emerged from the First World War had a magnificent constitution. But it was based on nothing but rubble. Russia, too, had never fought and won the battle for a magna carta, and therefore what Beatrice and Sidney Webb called “a perfect democracy” produced only the Gulag, with 20 million victims. Mao’s China also had a “perfect” constitution — and 70 million victims.

Americans rightly perceived the importance of Magna Carta in their historical heritage and built on it in the same way the British did. They perceived the rule of law to be the necessary prelude to and foundation of any constitutional process. Other English-speaking countries, notably Canada, Australia, New Zealand, and, above all, India, have followed the same course of development. South Africa, having been launched the same way two decades ago, has already departed from it with clearly disastrous results. There are perhaps 50 states in the world where parliamentary democracy in some shape has taken root, and all have based it on a successful battle to establish the rule of law first.

That is the fact we are celebrating on the 800th anniversary of Magna Carta, and that is the lesson all aspiring democracies in the world have to learn.

– Mr. Johnson is the author of many books, including, most recently, Mozart: A Life.

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