This well-curated collection of essays re-evaluates Magna Carta's place in modern constitutional thought. Their common focus is a set of questions of interest to historical, sociological and analytical lawyers alike: what is the current meaning of a thirteenth-century document still counted as being “law in force” in the twenty-first century? How do artefacts from one legal order influence the content of other legal orders? What is the relation between written rules and their unwritten context? While no particular methodology characterises the collection as a whole, the preponderance of essays are either works in legal history or what might be called the sociology of law. Unfortunately, no contribution from legal theory appears in the volume, and its potential is limited as a result.
Some tension is evident from the outset in the editors' introduction. James Melton and Robert Hazell point out difficulty in defining precisely what “influence” means. They draw a distinction between the “actual contents of a country's constitution” and influence that is “more symbolic, merely affecting the principles underlying the text” (p. 8, emphases original). This implies that a constitutional text can be separated neatly from the principles underlying it – not an uncontroversial proposition, especially among common law theorists. Distinguishing further between direct and indirect influence, the editors argue that it is probably “over-claiming the case to argue that Magna Carta has influenced constitutional thinking worldwide” (p. 14). Yet, overleaf, they note that “given that many of the de jure rights in the United States constitution can be traced to the Great Charter, or other British statutes that were were inspired by it, one could argue that Magna Carta has indirectly influenced almost all modern constitutions” (p. 16). They conclude that Magna Carta's influence has been primarily symbolic and indirect, with its “actual” influence being limited to the UK and the Commonwealth (pp. 18–19). The result is that their circumspect views on the Great Charter rest on some assumptions about the importance of symbolism that are not expressly justified.
The collection holds some stand-out essays. Some present aspects of Magna Carta's legacy that are likely to come as a surprise to a modern readership – even a critical one. Derek O'Brien's examination of Magna Carta in the British Caribbean colonies, for example, tells the important story of how the property rights anchored in Magna Carta provided the fulcrum for slave-owning elites to leverage massive transfers of wealth from the public purse in the course of abolition. This sad history still smarts in the Caribbean because, while slave owners were compensated for their loss of property, former slaves were not compensated for their forced labour.
Others present novel insight into the actual role of Magna Carta in the legal and political consciousness of the modern British public. Roger Mortimore's essay condenses a wealth of statistical information from two recent Ipsos MORI opinion polls, suggesting that Magna Carta plays a lesser role in public opinion than traditionally supposed. Geraldine van Beuren's essay on the Charter of the Forest situates Magna Carta in its historical context, highlighting parts of the picture most often neglected. Whatever the level of public awareness of Magna Carta, awareness of its sister charter is still lower – even among some who might count themselves as specialists in British public law. An important and neglected strand of Magna Carta revisionism is brought into the foreground of her examination of the Charter of the Forest, which did far more to protect the rights and economic interests of the ordinary subject of thirteenth-century England.
Other essays present aspects of Magna Carta's legacy outside the UK which should interest those observing the changing British constitution. Victor Menaldo and Nora Webb Williams argue that judicial supremacy in the US legal order is a product of that country's federal nature and the deliberate manner in which the US was created by its states: the Constitution “was a vehicle created by the states to make collective decisions with a greater scope than possible through the Articles of Confederation that preceded it, whilst ensuring that said scope was never large enough to considerably weaken its creators” (p. 172). They also seek to explain why the UK constitution rests on the doctrine of parliamentary, as opposed to judicial, supremacy. This kind of comparative analysis is perhaps more crucial for British public lawyers to take seriously than ever before; it is very a real question whether the current process of devolution might not create a unique and inherent constitutional role for the UK Supreme Court that is immune from parliamentary interference in the same manner. In this light, it is unfortunate that no mention is made of Magna Carta's clause 56, which concerns the rights of Welshmen and the application of Welsh law to lands in Wales.
Other contributions are, with respect, lacklustre. Anthony King's essay “Who Are Britain's Barons Now?” promises to identify today's veto-players vis-à-vis ministers and officials (p. 43). “[T]here are still undoubtedly barons of a sort out there,” he muses, “whether humble voters in a liberal democracy or huge multinational corporations” (p. 52). Professor King leaves the reader craving a robust definition of a “baron”. Can a mass of voters really be called “barons”? We are kept waiting for the kind of empirical analysis that this question would seem to demand; the essay presents a more or less anecdotal explanation of “the socio-economic system – the system of ideas and the institutions that embody those ideas – within which today's barons have their being” (p. 52). Democracy is an “institutionalised disappointment” owing to the perfidious influence of “global barons whom British governments are powerless to control” and the “global market capitalist economic system” (p. 53). At the end of the essay, the reader is left with a sense of unease, but no clear idea about the actual actors and institutions that might constitute “barons” in late capitalist Britain. In particular, a potentially interesting discussion of the City of London (whose ancient liberties and customs are still protected by clause 13 of the Great Charter) is absent.
Magna Carta and the Charter of the Forest are catalogues of legal relations between various feudal estates vis-à-vis the king, governing access to social and economic goods from marriage rights to rights to firewood and honey. We may debate the historiography of these Charters – whether they declared new rights, liberties, and immunities into existence or whether they were merely confirmed customary laws from pre-Norman times. These are important questions, which a number of the contributions in the present volume address. Also of interest, however, is the structure which these rights, liberties and concessions take. They are all legal relations vested in individuals possessed of some legal status. Magna Carta is, above all, a set of declarations creating or reaffirming the legal consequences of certain statuses, and clarifying the relations between status functions such as the Church, the City of London, Earls and Barons, Freemen, Villeins, Heirs and Guardians, Jews, Widows, Women and so on. So, for example, an adult male human being with the status “Earl” occupies one domain in the socio-legal reality projected by Magna Carta; an adult male human being with the status of “Jew” occupies a different one. Magna Carta sets out the legal and political consequences of this differential social positioning. Adopting some insights from social ontology might shed some light on Magna Carta's dual legal and mythic aspects. Legal statuses are entities that arise out of human interactions, and cannot be explained without reference to social causes or properties: See T. Lawson, “Ontology and the Study of Social Reality” (2012) 36 Camb.J.Econ. 345 and J. Searle, Making the Social World (Oxford University Press 2010), chs. 3, 5. Naturalising Magna Carta can only be achieved by explaining the socio-linguistic processes by which it projects a state of affairs as existing in the world, and by which subsequent interpretations modify this projection over time. This would also involve a reappraisal of the supposed shift from status to contract, exemplified in the thought of Sir Henry Maine but called into question already by F.W. Maitland, who perceived a basic continuity from the thirteenth century onwards.
In consequence, a systematic analysis of the relation between different versions of a legal system at different points in time is missing. For example, Craig S. Lerner judges the proposition that Magna Carta embodies a proportionality principle to be “true in a trivial sense”; however, as one tries to identify such a principle more specifically in the text, one sees that the relevant clauses “are of little or no legal relevance” to an American audience because they are not addressed to the question of criminal punishment as the US Eighth Amendment jurisprudence has claimed (p. 168, emphasis original). In this context, we see the mythic power of Magna Carta: it is a venerable legacy to which judges might turn for rhetorical assistance to lend prestige to their innovations. Not only is this type of question of interest to analytical jurisprudence; it cannot be answered well without it. We know, after all, that an ancient document like Magna Carta can remain part of a legal order even while its exact import changes over time. “Earls” and “Jews” still exist in Britain, but the legal consequences of those statuses are very different today than in the thirteenth century. In this respect, Eugenio Bulygin makes a useful distinction between a “legal order” and a “legal system”. This distinguishes “English law” as a continuous legal order from “English law” as at 1215, 1615 or 2015. He refers to the latter as a “legal system” and to all legal systems associated with a set of foundational norms over time as “legal order[s]”: See E. Bulygin, in C. Bernal et al. (eds.), Essays in Legal Philosophy (Oxford 2015), ch. 10. Without clearly identifying whether one is concerned with the modern legacy of Magna Carta to a contemporary legal system or a contemporary legal order, one lacks a question that permits of a satisfactory answer.
On the whole, this is a worthy contribution to the study of Magna Carta at the dawn of the twenty-first century. It presents the reader with novel insights into the Great Charter's history and highlights talking points in the broader conversation about its place in the constitutional thought of the future. Its critical tone may help inoculate students against the mythology of Runnymede. But the collection also makes clear that, however mixed its legacy, and however modest its “actual, direct” influence, Magna Carta will continue to structure debate around the most pressing questions of public power and individual liberty. The 800th anniversary of Magna Carta coincides with a renewed interest in the common law as a constitutional tradition. This view is, perhaps, gaining momentum as British lawyers, legal academics and judges grapple with the possibility of a British exit from the European Union and a possible repeal of the Human Rights Act 1998. As a declaration of statuses and the rights, liberties and immunities of different classes of legal subject vis-à-vis the legal sovereign, Magna Carta is an important precursor to the modern pre-occupation with subjective rights and the idea of limited government – even if we should be wary of filling it with anachronistic notions of democracy, equality and human rights.
