On behalf of the judiciary of the United Kingdom, let me very warmly welcome the American Bar Association to London. It is thoroughly appropriate that your conference is being held here in England on the 800th anniversary, almost to the day, of the sealing of Magna Carta, the Great Charter, by bad King John. And let me assure you that he really was bad, even by the high standards of badness regularly exhibited by Kings and Barons in the 13th century. He was murderous, foul-mouthed, avaricious, lecherous cruel, and dishonest. When he had died, a contemporary chronicler wrote “Black as is hell, John’s presence there makes it blacker still”.
After John had been heavily defeated by the King of France in July 1214, many of his Barons wanted to get rid of him. For much of the following year, John negotiated with the Barons from his base in the Temple Church, which is where this conference is celebrating choral evensong at 5.30 this afternoon. And to no avail, because the Barons chased him out of London in May 1215. A month later the Barons met the King 25 miles away from Temple on a boggy piece of land on the River Thames called Runnymede. And there Magna Carta was sealed. Never can a document have had such an unpromising birth. Neither the King nor the Barons intended to keep to it. The King got the Pope to annul it, while the Barons invited the French King’s son to come over and supplant John as King. The result was civil war, which only lasted a year, because King John did one of the few decent things he had ever done in his dishonest, inept, feckless life: he died.
His son and successor, Henry III, was only 9 years old, but he fortunately had the help of a formidable regent, William Marshal, who reissued Magna Carta as a sign of good faith to the people – and it worked. Henry was accepted as King and the French Prince was chased out of England. And Magna Carta was re-issued or confirmed at least thirty times over the next 150 or so years – normally by Kings who wanted to pacify or tax mutinous Barons.
However, by 1400, Magna Carta was starting rather to fade from view, where it stayed for about 200 years. It is, I think, very telling that Shakespeare makes no mention of Magna Carta in his play King John which was written around 1595. However, the 100 years that followed Shakespeare’s play saw a civil war, followed by the execution of a King, and the exile of another, as democracy and the rule of law were starting to replace royal absolutism It was the century when habeas corpus, security of tenure for judges, parliamentary inviolability, taxation only by legislation, and free elections become enshrined in England’s constitutional settlement.
Magna Carta was revived to play a significant part in this political transformation, largely thanks to Sir Edward Coke, who had been an anti-royalist chief justice, and then a brilliant propagandist. He was really responsible for the idea that the Great Charter was the foundation of democracy and the rule of law. Ever since then, Magna Carta has been regularly invoked by English lawyers, historians and politicians as starting the firing gun for the rule of law and democracy.
And, of course, it was by no means just this side of the Atlantic that the Great Charter was being looked to for this purpose. In the 17th century it was included in the law of many states. And Magna Carta played a great part, of course, in the thinking of the Founding Fathers. Before the fight for independence was properly under way, the Great Charter cropped up in the professional lives of two of the founding fathers. In 1768, a ship belonging to John Hancock was seized by the British, who then sued him for the modern day equivalent of about US$1.5m in the Admiralty Court. Hancock’s lawyer, John Adams, successfully had the claim thrown out on the ground that he would thereby be deprived of his right to trial by jury contrary to Magna Carta, which would wrongly reduce Hancock “below the rank of an Englishman”.
In the period leading up to the Declaration of Independence, Magna Carta was frequently relied on to justify standing up to the British King and the British Parliament. And even today, the text of Magna Carta is, I think, included in the statute books of nineteen of the fifty states.
So, while King John’s reputation has always been very bad, Magna Carta has got the nearest a document can get to being canonised. At least to English people of my generation, the most famous comment about the Great Charter was by Tony Hancock, a seriously funny man, in a radio sketch based on the Hollywood film 12 Angry Men. Trying to persuade his fellow jurors of the importance of the presumption of innocence, he passionately declaims: “Does Magna Carta mean nothing to you? Did she die in vain?”
More seriously, Franklin Roosevelt famously described the Great Charter as the basis of the “democratic aspiration”. But, though he was following the view expressed by Sir Edward Coke, I think that he was mistakenly eliding two concepts, democracy and the rule of law. In 1215, democracy was not even a glimmer in the eye of the Barons or the King: they who would all have been horrified by the idea. No, the earliest glimmerings of democracy came fifty years later, 750 years ago, in 1265, when the first Parliament was summoned
What Magna Carta represented, albeit in primitive form, was the rule of law. In a piecemeal fashion, it set out some rules by which England was to be run, including the renowned clauses 39 and 40, with their promises that no man will be … imprisoned … or in any way ruined … save by judgment of his peers and the law of the land”, and “to no-one shall we sell, … deny or delay justice” . While Magna Carta was a million miles away from being a complete code, but it was the first negotiated set of laws after the Norman Conquest.
As such, it was of vital significance because, together with democracy, the rule of law is one of the twin pillars of a modern civilized society. We hear a lot about democracy these days. But democracy is not enough to ensure a civilised government. Hitler and Mussolini each came to power under entirely proper democratic election systems. No system involving people will ever be perfect or perpetual, but, without the rule of law, democratic government is a hollow thing.
Indeed, I suggest that the rule of law is more important and more fundamental than democracy. It not just in Magna Carta 800 years ago where you find it, but if you go back 2000 or even 3000 years ago, to Rome, to Greece, to China, to Israel, and you won’t find a glimmer of democratic government, but you will find the rule of law.
As lawyers and judges we have a duty to remind governments and our citizens that, along with the defence of the realm, the rule of law is one of the two basic and entrenched roles of government. If a government does not provide proper defence against attack from abroad and the rule of law at home, it is not worthy of the name, and, indeed, without defence of the realm and the rule of law, the value of all the newer services provided by the state, such as welfare, health, and education, will also be severely undermined. And the rule of law does not just mean law and order: today, it means today civil rights, fundamental human and constitutional rights, and it means access to justice, because legal rights are not worth the paper they are written on if they cannot be enforced through the courts. And, I would add, we lawyers and judges do not merely have the duty of reminding governments and citizens of this: we also should remind ourselves that, in our role, we have a duty to do everything we can to ensure that the rule of law, and in particular access to justice, is maintained.
Today, the notion of the rule of law carries with it fundamental rights as I have mentioned. However, virtually every fundamental right which most mainstream, moderate people would take for granted today would have been rejected by most mainstream moderate people in the not-so-distant past. The rights to life, to liberty, and to a fair trial, freedoms from torture, forced labour, and discrimination, and freedoms of religion, expression, and association would be taken for granted by most people today. But you don’t have to go back very far in the history of this country to find a time when every one of these rights and freedoms simply did not exist or existed in an almost unrecognisably restrictive form. Indeed, the great majority of English people had virtually none of these freedoms in any recognisable form even 400 years ago.
And some changes are very recent. In this country, less than 50 years ago, men could be, and not infrequently were, prosecuted and imprisoned for having consensual sex with another man in private. And now two men cannot merely live together openly in a sexual relationship: they can get married in the UK, and, subject to your Supreme Court, that is also true of the US. And casual but blatant racism was acceptable 50 years ago, whereas now it is not merely unlawful but a serious criminal offence.
And standards change with place as well as with time. The death penalty is thought by most people in the UK today to be wrong today but it was only abolished in 1965 No doubt, in the 18th century, it was thought by most people to be somewhat eccentric to oppose the death penalty. And, even today, the death penalty is still part of the law in most states of the US. And even part of the United Kingdom, Northern Ireland, has a significantly different legal position in respect of important social issues such as women’s reproductive rights, blasphemy and gay marriage.
So, while the human rights we talk and litigate about so much are fundamental to a modern civilised and democratic society and should be nurtured and treasured, we should not fool ourselves into thinking that they are timeless, let alone absolute. If we can look back with disbelief, or at least with surprise or disapproval, at accepted norms and laws 200 years ago, or even 50 years ago, then, particularly in a world that is changing ever more quickly, we may expect the same reaction from right-thinking people in 100 years’ time, looking back to our laws and norms.
In some ways, democracy and the rule of law can be seen as polar opposites. Democratic government is loosely based on the notion that the majority should prevail over the minority and should be able to decide what the laws of the land should be. Whereas much of the rule of law is concerned with protecting minorities and, in particular protecting the individual against the state. But a more technical aspect of the tension between the rule of law and importance of democracy is to be found in the potential for conflict between the courts and the legislature.
I would suggest that when it comes to constitutional arrangements, the UK’s system is more democratic, at least in some ways, but the US system is more committed to the rule of law. It is true that in the US many state judges are elected, and none of the UK’s judges are elected. However, many people may think that electing judges is more of a confusion of the rule of law and democracy rather than a triumph of democracy over the rule of law – particularly where a judge can stand for re-election
But the reason I suggest that the UK is more democratic is because we have parliamentary supremacy. That means that democratically elected Parliament can overrule a decision of any un-elected court, including the Supreme Court, whereas no court, not even the Supreme Court, can ever reverse or overrule a statute enacted by Parliament. The position in the US is of course very different: it is by no means unusual for the unelected US Supreme Court to overrule a statute enacted by democratically elected Congress. That is because the US, unlike the UK, has a constitution. The importance which the US system accords to the constitution and to the power of the court to overrule a statute which is inconsistent with the constitution is a tribute to its respect for the rule of law, which is not accorded the same importance in our system.
And so in the US you have courts conclusively deciding the law on issues such as political party funding, gun control, and abortion, and, while many may disagree with their decisions, I sense that there is little American appetite for objecting to judges striking down statutes. Indeed, so far as I can tell, Justices quashing legislation is seen by many Americans as a condign reminder to overreaching politicians of the supremacy of the constitution. How different it is in the UK, where the thought of the courts rather than parliament ruling on abortion, gun control or party funding would be quite alien.
But there has been a significant shift in the constitutional settlement in the UK over the past fifty years. A combination of factors has, I think, resulted in the judges in this country having more political (with a small “p”) heft, and moving towards more of a quasi-constitutional role. First, the increasing powers of the executive in many areas mean that there has been a much greater call for judicial scrutiny of administrative decisions. Secondly, EU law requires judges sometimes to overrule primary legislation, which has given the courts a taste of wider powers. Thirdly, because, unlike the US, the UK does not have proper separation of powers, so that cabinet and other ministers are in the legislature, Parliament can often be controlled by a Prime Minister with a decent majority. So, for much of the past few decades, parliamentary power has waned, and judges may have unconsciously filled the vacuum.
Fourthly, the Human Rights Act of 1998 has for the first time given UK judges a quasi-constitutional function, as it requires them to apply the Human Rights Convention, which is a sort of European mini-constitution. Fifthly, yesterday’s judges came of age in the respectful and conventional forties and fifties, whereas today’s judges grew up in the questioning and disrespectful sixties and seventies, and that affects the judicial outlook quite a bit. Sixthly, the legislature is sometimes too divided or too uncertain to take difficult or unpopular decisions and the courts therefore may be tempted to feel that they ought to step in. So, on some controversial issues where something needs to be done, it may be that legislative indecision is starting to become a reason for increased judicial activism.
But, even despite this, the courts in this country have far less political influence or power than those in the US. And I think that this difference can be seen in the differing perceptions of Magna Carta in the seventeenth and eighteenth centuries in our two countries. By the end of the eighteenth century, it was generally accepted that the English courts could not overrule or declare unlawful a statute: that is parliamentary sovereignty. Magna Carta was regarded as a milestone, but most of its various clauses were successively repealed, so that only four remain, including clauses 39 and 40. In other words, Magna Carta was ultimately regarded a statute like any other, whose each and every provision could be repealed or amended by Parliament. So, in English eyes, while the Great Charter could be invoked against the executive arm of government, it was not above Parliament, whatever fine words judges may have used in the past.
By contrast, across the Atlantic in the eighteenth century, Magna Carta was regarded as having granted people “inalienable rights”, which could not be taken away either by the King or by Parliament. Thus, when Benjamin Franklin when asked by the British House of Commons to explain the American refusal to pay the stamp tax despite the fact that it had been enacted by Parliament, he justified it by reference to “the common rights of Englishmen as declared by Magna Charta”. The notion of inalienable rights found its way, of course, into the declaration of independence, thanks to Thomas Jefferson. In other words, even before independence, the American approach diverged from the British concept of parliamentary sovereignty. Contrary to the British view, the American view was that the Great Charter contained inalienable rights which could not be defeated by a simple vote in the legislature.
Hence one sees, from the very conception of the USA, the appearance of the notion that the rule of law can trump the democratic will, a fundamental departure from the traditional British constitutional tradition. As Joyce Lee Malcolm has written, “While Englishmen on both sides of the Atlantic set a high value on their rights, their manner of protecting them diverged” and “[t]hat divergence has arguably resulted in Magna Carta’s legacy remaining more vibrant in America than in the land of its origins.” And that may explain why it is a US, indeed an ABA, memorial which we find at Runnymede.
Some people, such as my colleague Lord Sumption believe that the real significance of the Great Charter to the rule of law, as well as to democracy has been overstated. But, if the general view of the Great Charter is not entirely accurate or is somewhat overblown, then there is always the view of my predecessor-but-one to remember. Lord Bingham wrote:
“The significance of Magna Carta lay not only in what it actually said but, perhaps to an even greater extent, in what later generations claimed and believed it had said. Sometimes the myth is more important that the actuality.”
One only has to think how the famous clauses 39 and 40 have echoed down the corridors of history to realise both how and why the Great Charter has achieved such an iconic status in the popular view.
I would like to end with another quote. I was taught by my English teachers that the best essays compositions end where they started, and I started with King John. Winston Churchill once said, with Magna Carta well in mind that “When the long tally is added, it will be seen that the British nation and the English-speaking world owe far more to the vices of John than to the labours of virtuous sovereigns”.
That observation reminds us all that the United Kingdom and the United States not merely have a common language, but we share many other features, including the common law, and a common belief in justice and decency in the law, but also in political, familial and social relationships. These features are to be treasured, particularly in an unsecure world. Because of those many features which we share, as well as the many personal and professional relationships which exist between lawyers and judges in our two countries, I am pleased and honoured to have been asked to address you at the start of your conference. I have little doubt that it will be an enormous success.
This post courtesy of American Bar Association, where it originally appeared here.