Wednesday, 3 July 2013


I'm afraid that my aim to publish a post on the subject of law each day last week went overboard in the flurry of conferences and examining.  However, there was still lots of time for thinking.  I'd also like to thank those who've sent comments to previous posts - either on Twitter or here - they've been provocative and useful, and I'd love to hear more...

Illustration of a judge From Peniarth 28 manuscript c. 1250

And it occurs to me that using the much vaunted Magna Carta in order to critique modern day applications of law is perhaps only part of the story.  Because, much as we might hold up Magna Carta as the ultimate expression of constitutional freedoms, it isn't!  So perhaps the more useful thing to do is to think about the shortcomings of Magna Carta and the ways in which we are so conspicuously failing to address those shortcomings 800 years later.

Most obviously, there was no supreme court in the thirteenth century.  So the rights and privileges enshrined in Magna Carta were all very well, but ensuring that they meant something in practice was trickier.  Are we in a similar situation now? - where the politicisation of law - eg. detention without trial - lacks the checks and balances of a supreme court?  At the time of Magna Carta, the enforcers were the king's own servants, so the idea of reining in the power of the monarchy was deeply flawed. Again, have we established sufficient safeguards now? - imprisonment without trial is effectively in the hands of the same political establishment as any who might be able to limit its use.

It's also useful to flip things around and think about it from the perspective of the litigants.  We tend to assume that Magna Carta defended the rights of the users of law, and upheld the principles which protected them.  But from the point of view of those users, although they clearly cared about the principles, the integrity of Magna Carta over the years was, to a great extent, challenged by the fact that, really, people wanted to win.  In each individual case, winning, understandably, tended to mean more to people than defending abstract ideas of justice - when it's your own livelihood which is at stake, things look a bit different.  And I wonder whether this is also something to worry about now - moral principles about law must compete with the users' very justifiable desire for a positive outcome.  Our highfalutin discussions ultimately mean little in most cases unless members of society feel sure and safe.  And this is a tension which is all to easy for politicians to exploit.

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