800 years of Magna Carta

The following commentary is provided by Dr Carwyn Jones (Ngāti Kahungunu and Te Aitanga-a-Māhaki), a senior lecturer at Victoria University of Wellington’s Faculty of Law.

Dr Carwyn Jones delivering a lecture.
Photo by: Mark Beatty, Imaging Services, National Library of New Zealand

Last week marked 800 years since King John was forced by a group of barons at Runnymede to accept some constraints on his authority and affix his seal to the document that became known as Magna Carta.

In the eight centuries since then, Magna Carta has been invoked as a symbol of liberty and justice by champions of human rights such as Nelson Mandela, Mahatma Gandhi and Martin Luther King. It has been used to establish pillars of the criminal justice system such as trials by jury and the writ of habeas corpus—that prevents people being held in custody indefinitely without being brought before a court to determine whether their detention is lawful.

Last week our MPs celebrated the anniversary of the Great Charter, venerating it for “paving the road to modern democracy” and forming “the foundation stone of the freedoms and liberties we now enjoy in New Zealand.” Bold claims. This Magna Carta thing must be important.

And indeed it is. But not just because it is very old. We should remember as we celebrate this significant anniversary that the importance of Magna Carta is not to be found in a single moment of time in 1215. In fact, quite a lot of the original document relates quite specifically to the time it was signed and deals with concerns that are peculiar to medieval England. That does not mean that Magna Carta is not relevant to us in New Zealand in the twenty-first century, but simply that, as a former Dean of Harvard Law School once noted, “Magna Carta is not primarily significant for what it was but rather for what it was made to be”. The importance of Magna Carta comes from the life that we give to its principles.

Some core principles of Magna Carta remain very important to our law and constitution. What is probably the most famous clause of Magna Carta is still on the statute books in New Zealand. It states:

NO freeman shall be taken or imprisoned, or be disseised of his freehold, or liberties, or free customs, or be outlawed, or exiled, or any other wise destroyed; nor will we not pass upon him, nor condemn him, but by lawful judgment of his peers, or by the law of the land. We will sell to no man, we will not deny or defer to any man either justice or right.

Though only a few short lines, there is a lot in this clause and even more that has been extrapolated from it. But perhaps most importantly it sets out a principle of equality before the law. It makes clear that every person is entitled to justice and to have his or her rights recognised and that the law will apply equally to all without exception.

This principle of equality before the law can be seen reflected in virtually all of the instruments we would see as being foundational to our understanding of human rights today—the Bill of Rights of 1689 in Britain, the Declaration of the Rights of Man and the Citizen of 1789 in France, the US Bill of Rights of 1791, and, more recently, the Universal Declaration of Human Rights adopted by the United Nations General Assembly in 1948.

Magna Carta stands as a powerful symbol for the principles of justice and equality that underpin modern human rights. The challenge of Magna Carta is to ensure that our society adheres to those principles, no matter what issues we confront. If a casino is granted permission to operate more pokie machines in exchange for building a convention centre, is that equality before the law? If our security services are indiscriminate in the way they collect data about electronic communications, are we free from arbitrary exercise of state power? If we truly want to celebrate Magna Carta, these are the kinds of questions we should be asking. Because the value of Magna Carta comes not from Runnymede in 1215 but from how we choose to give life to its principles today.