THAT GREAT CHARTER

Setting: An unofficial meeting of the Universal Declaration of Human Rights Committee to discuss potential articles to be included in the declaration.

Focus: The Magna Carta. Its historical standing, influence and relevance to the establishment and evolution of human rights.

Character Assumed: Eleanor Roosevelt, chairperson of the United Nations Commission on Human Rights.

Minutes into the conference…

John Peters Humphrey of Canada: It does have resonance today. Because it does find appreciation in areas where people are deprived of basic rights. Free men ought to have their rights even if they must fight for them.

Peng-chun Chang of China: “Free men” are a privileged few. When peasants called for the abolition of a harsh and unjust system, they were promised much and given nothing new. Serfdom stayed. As did broken promises of reform. King after king, ruler after ruler, have disappointed us. Equality is a dream for the lowest of the low. After two world wars, this world is so broken and bruised and exposed. We’ve never been more conscious of our flaws as human beings. Our future depends on how we can make amends where human rights have been abused. Yes, we’ve learnt our lessons, but we have so much farther to go.

René Cassin of France: And if you need one, Magna Carta is a useful reminder of what freedom traditionally means. It defines our rights in essentially negative terms. If I have freedom of speech, you can’t shut me up. If I have freedom of assembly, people can’t tell me who I’m allowed to congregate with or in what numbers. And it’s worth reminding ourselves, that that’s the essential message of freedom in an age when freedom is used to mean pretty much the opposite. It’s used to mean an entitlement, a claim, the freedom to work, the freedom to have affordable healthcare, the freedom from discrimination and so on. Freedom, if it means anything, means a guarantee against state coercion.

John Peters Humphrey of Canada: The state shall make no law infringing freedom of speech or freedom of religion. Thou shalt not take property without due process and just compensation. No taxation without representation. The critical basis of their thinking was that rights are not something handed down from on high by a benevolent government. They’re part of the natural liberty of free people. Therefore, government doesn’t need to be ordered to do things for their citizens, it needs to be forbidden from doing things to them. True to Monsieur Cassin’s words, the meaning of political liberty everywhere changed!

Alexander E. Bogomolov of the Union of Soviet Socialist Republics: No agreement is worth the paper it’s written on if it doesn’t have the enforcement mechanism. There are countries represented over here and they are not democracies.

John Peters Humphrey of Canada: Democracy or otherwise, Mr. Bogomolov, Human Rights belong to us all. All human beings are born free and equal in dignity and rights. Think of the principles that inspired not only the authors of Magna Carta but the people who have stood for freedom and for individual rights down the history of time.

Alexander E. Bogomolov of the Union of Soviet Socialist Republics: The principles of Magna Carta are worthy of our attention and respect, yes. We need to make sure that what is said in Magna Carta, is still what happens in our institutions today. Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it.

René Cassin of France: Right you are! Liberté, Égalité, Fraternité!

Alexander E. Bogomolov of the Union of Soviet Socialist Republics: Ahaha, Oui, Monsieur Cassin! It’s not enough to have a gold replica of Magna Carta in your parliament, it is necessary to have it in your heart and in your institutions if we’re to be true to those principles of liberty handed down over so many centuries. Not all governments are getting them right today.

We’re all respectful of the rule of law. The question is how do we make it work?

Hernán Santa Cruz of Chile: By incorporating it in our declaration. And making plain to people, universally, how they and society at large will benefit from upholding such a doctrine.

We don’t need to reinvent the wheel here. We don’t need to come out with some revolutionary, radical, new solution. They weren’t saying anything different back then than we are now:

The King is under the law. He does not make the law. Parliament and the King cannot pass laws that infringe the rights of people.

Even if the barons were technically guilty of treason, their actions will be proved by history to have been justified and indeed essential. They put their lives, their families and their possessions at risk for the good of the kingdom and history will show that the balance in Magna Carta is one that most or nearly all subsequent Kings will have no difficulty abiding with and that is because it is a fair balance. If the court rules against my client, then the court will be finding that tyranny must go unchecked and that Kings are not subject to the rule of law. If this court were to come to that conclusion, it would send an appalling message around the known and indeed unknown world. And it would set a precedent for tyranny and undermine the role of justice for centuries to come.

Take up the good example of our ancestors, and understand that it is easy to part with or give away great privileges, but hard to be gained if lost.

John Peters Humphrey of Canada: That would mean we stand for the rule of law, curbs on executive power and the freedom to enjoy basic liberties. Fundamentally, we stand for the rights that make a decent society possible; the only rights that have ever been found that make a decent society possible.

It’s an exceptional privilege to have inherited the kind of free and decent society that Magna Carta made possible but it’s also a heavy responsibility.

Charles Habib Malik of Lebanon: A responsibility that unleashes a cultural, economic and even military dynamism when people are free in orderly societies.

Eleanor Roosevelt of the United States of America: That’s why it’s essential that we remember the story, that we retell the story and that we step up now and play our part in guaranteeing the survival of those liberties for future centuries. Magna Carta’s called the charter of liberties because it makes people free. And we sit here for thousands and tens of thousands…

Charles Dukes of the United Kingdom: If I could take you back in time, Edward Coke, an outspoken man did all he could to oppose the absolutist monarchy. He took what was essentially a forgotten medieval document, an elite deal and reinvented it as a charter of liberties for all citizens. His Petition of Right demanded a land in which political or civil liberty is the very end and scope of the constitution. Perhaps, we could nourish the same idea.

Eleanor Roosevelt of the United States of America: As sure as time, history is repeating itself, and as sure as man is man, history is the last place he’ll look for his lessons. I think we can change that. If we go by the wisdom enshrined in Magna Carta, we might make the world more humane and sane. My hope is for our Universal Declaration of Human Rights to be a “Magna Carta for all humankind”.

Charles Habib Malik of Lebanon: After all, Magna Carta, arguably, was one of the first documents that called for freedom of religion; that actually spoke for the church – it was going to be freed up from undue interference from the political leadership – from the king. They set up a council of barons that’s possibly one of the first true parliaments where one was supposed to get advice. In some ways it was one of the first tax revolts that said this isn’t your money, it’s our money. So, those are principles which we continue to pursue and continue to refine. I think those things are of lasting importance. Rule of law is important. You have swift justice, a way that people can’t be put in jail because you feel like it anymore, Your Majesty.

Charles Dukes of the United Kingdom: It also tells us that political culture runs deeper than that. King Henry III had to promise to re-issue Magna Carta and promise that he would respect the liberties his father had scorned and trampled underfoot. So, Kings may come and go but political culture’s enduring and no one could become King of England and hold the throne who did not respect the rights of his subjects.

Once the common people are brought in they cannot again be excluded. In England, the legitimacy of the government runs on protecting the rights of the common man.

It was bred in the bone that the rule of law was important. Not just what the law said. But that the law as written, was applied and was applied fairly.

The devotion to the rule of law, to improving it, in theory and in practice, to assuring that it was applied to everyone, from commoners up to the monarch, tireless efforts over the centuries, to make it a reality, are why we have a legal system that we have enshrined today.

Hernán Santa Cruz of Chile: Quite so! Rule of law is critically important. The importance of people consenting to action is critically important as well. Now, it was a very nascent form of that but it was the principal that has gathered momentum over the years and we’re still striving to find better ways to improve on all of those principles.

Eleanor Roosevelt of the United States of America: Gentlemen, at the core of our history is a passionate belief in freedom. The freedom enshrined in Magna Carta. Some men took considerable risks to secure the freedoms we still enjoy today. And we’re faced with the colossal duty of balancing the pressures of the present and the compulsions of the future with the values of the past.

(Time out for Tea!)

John Peters Humphrey of Canada: When it came into being, this was a defining moment in the history of the world. Liberty is power. And Magna Carta was the foundation stone for the liberties of many millions of citizens across the world and a banner for the protection of the citizen against abusive power by the State. A world that forgets its history is doomed to repeat it. We can’t be more mindful of that lesson than we are today.

Charles Dukes of the United Kingdom: Certainly! The acts of individuals, even accidentally, do have long-lasting historical effects. When we talk about Magna Carta now, we focus on the fact that it was a great influence on the development of legal systems across the world and on the rise of the modern state. But we also know that in the United Kingdom, in particular, most of the provisions of the Magna

Carta have been repealed. Also, in the United States, if Magna Carta were considered constitutional law, certainly it would’ve been superseded by the country’s constitution.

Eleanor Roosevelt of the United States of America: Yes Lord Dukeston, but having said that, this is our shared legacy of liberty. We can’t forget that it’s an imposing symbol. It may not have been regarded as a Bill of Rights when it was issued. The barons and the King weren’t terribly interested in promulgating rights that would apply across the board. But overtime it has become a critical symbol. It was a vital symbol during the American Revolution. They were fighting for the sword in one hand and Magna Carta in the other. The design adopted was that of an English-American man holding the Magna Carta. The seal was engraved by Paul Revere, whose original, signed bill for the work is located in the Massachusetts Archives. A motto in Latin was also chosen – “Ense petit placidam sub libertate quietem” – which remains the motto of the Commonwealth today. Freely translated this means, “By the sword we seek peace, but peace only under liberty.” So, they were not looking for independence. They were looking for the rights of Englishmen. To which they thought they were entitled. And those were represented by Magna Carta.

John Peters Humphrey of Canada: If I may add, Magna Carta was seen in slightly different ways from the 18th Century on the two sides of the Atlantic. The way constitutional theory developed in Great Britain, Magna Carta was seen chiefly as a guarantor of parliamentary supremacy, especially after the glorious revolution. But in the New World, it retained the older idea of being something that stood equally above Crown and Parliament, as being the supreme constitutional authority. And that was what found its way into the debate that gave us the declaration of independence and the constitution of the USA. And so, it was a real life miracle when ‘bad’ King John was forced to put the royal seal on the Magna Carta.

William Hodgson of Australia: It was. This miracle at Runnymede where King John was forced to concede that free people have inherent rights. That a government that tramples those rights is no government at all. That men and women are entitled to a fair system of rule that’s accessible to everyone; to security of the person; to protection of their property and to a say in how they’re governed. It gave birth to the whole idea that citizens own the government and not the other way around.

John Peters Humphrey of Canada: Precisely! Magna Carta is no dusty museum piece. It’s still the essential foundation of a decent society. The rights we enjoy today, the prosperity, the political liberty, the cultural dynamism, even the national security depend upon the rights it contains and on the clarity and courage of men and women who have refined those rights, expanded them and protected them over the last 700 and something years.

Charles Dukes of the United Kingdom: So, while Magna Carta has come to be seen as the cornerstone of English liberty and an international rallying cry against the arbitrary use of power, at the time it did nothing to improve the lot of the vast majority of English people, and all but three of its provisions have been repealed.

Peng-chun Chang of China: We have to explore this squarely.

The very first paragraph of Magna Carta preserves the freedoms of the Church of England, including the right of free election of clergy. Also notice, something that tells you a lot about Magna Carta and its history: there was a writ issued by Henry II directing a group to hold a free election but forbidding them to elect anyone other than Richard, his clerk. So, at least for many centuries, the sentiment was there and could be looked to in Magna Carta, but the reality was often quite different.

The reason why the Magna Carta survived at all is a pure historic accident. Once the King can’t rule out of his own money, he has to go and ask. And the 1225 Charter was actually a direct deal. You can have your tax, if you will give us the Charter. And so it went on and on and on. Each generation sees new things that it finds unacceptable and as a result we hopefully, improve our societies. But it all stems from this process initiated by the Magna Carta. So yes, while we can give it credit for being the dawn of a global rights movement or any rights movement at all, we can’t possibly assert it was entirely operative.

William Hodgson of Australia: It is our duty to remember.

As long as we continue to cherish the fight for liberty in the past, we will continue to wage it in the present. It’s if we forget what these things mean, that the monuments and the institutions will crumble around us and be forgotten.

(Transitory Awkward Silence. They pause to muse and then, play on…)

René Cassin of France: In my view, Magna Carta was never intended to be a static document that remained fixed in the political circumstances of 1215. It was a living document. It was interpreted by successive generations after the document had its revival in the 17th Century, it inspired the French Declaration of the rights of man, the American Revolution and Canada’s Confederation and the development of parliamentary democracy around the world. So, it remains a living document that continues to inspire new generations.

John Peters Humphrey of Canada: I’d say it’s the foundation document for government. It’s a critical part of our social contract with one another. More importantly, it reminds our government that they’re to serve the people of Canada and not the other way around.

René Cassin of France: The bravery and determination of those barons 700 years ago rings down the centuries as a justified act of rebellion. Those of us living today in democracies which take the rule of law seriously are reaping the benefits of the barons’ bold demonstration against King John.

Just remember what came out of it:

Constitutional protection was given to key human rights.
To no one will we sell, to no one deny or delay right or justice.

No free man shall be seized or imprisoned, or stripped of his rights or possessions…except by the lawful judgment of his equals or by the law of the land.

No constable or other royal official shall take corn or other movable goods from any man without immediate payment.

No ‘scutage’ or aid may be levied in our kingdom without its general consent.

A fairly legal system, accessible to everyone. Security of the person, protection of property, a right to a say in how you’re governed and freedom from repressive taxation.

Peng-chun Chang of China: It’s a miracle in 3 ways, I’d say. First of all, it’s extraordinary that all these key rights would find expression in one single, constitutional document. It’s even more extraordinary that this was not an impression of how people wished the world might be, if only the government wasn’t as wretched as it is. It was an expression of rights that really were, by and large, upheld in England, even 8, 9, 10 centuries ago. And the protections that were put into Magna Carta, were preserved, refined and enhanced over the ensuing 700 years, making possible the kind of society that we enjoy today.

William Hodgson of Australia: Which brings us to the realization that the democratic aspiration is no mere recent phase in human history. It is human history. It permeated the ancient life of early people. It blazed anew in the Middle Ages. It was written in Magna Carta.

Alexander E. Bogomolov of the Union of Soviet Socialist Republics: All ideas are products of time and place. Was it inevitable then? That if the Magna Carta hadn’t occurred, we would’ve invented it anyway.

Charles Dukes of the United Kingdom: Sure we would have. The barons and the monarchs were pitted against each other over a series of fundamental questions which still have resonance today. It included some very valuable principles relating to the administration of justice and limited the power of the King to raise taxes without the common accord of the realm.

This is about the distinction between just rule and tyranny, about the King’s obligation to govern for the benefit of all his subjects and not just for himself. It’s tyranny of the worst kind. And the barons had a duty to place restraints upon him. For the law is for the King as well as the people.

Magna Carta was a document which protected the whole country against arbitrary and tyrannical rule. It set a framework for a just and balanced sense of rights and responsibilities between ruler and subject.

Alexander E. Bogomolov of the Union of Soviet Socialist Republics: Hence, we owe a great debt to the distant past here. Political, constitutional, legal systems aren’t like operating systems. Their principles are timeless and the rights contained in Magna Carta aren’t just one way of creating a good society. They’re the only way it’s ever been found. That’s why it’s so important that we understand these rights – where they came from, how they flourished and what challenges they face today.

Charles Dukes of the United Kingdom: The easy mistake to make is to think that previous generations whose views resemble ours: They’re the progressives and the ones moving in the other direction, they’re the reactionaries. But the fascinating thing, if you look at the debate before and up to Magna Carta is the extent to which people who were trying to constrain royal power saw themselves as the conservatives, they were looking not forward to our own democratic age but back to what they imagined to be the natural constitution of England, one where Kings were constrained, where there was a conciliar form of government – a parliamentary form through the Witch Hunt and where above all, the rules were above the rulers. And here’s the extraordinary thing, they were right!

Alexander E. Bogomolov of the Union of Soviet Socialist Republics: So, the barons, the knights, the people who fought against John did it not because they wished government had been different than it always had been but because John wasn’t respecting their judicial liberties and Magna Carta said these rights have always existed and they always will exist?

Charles Dukes of the United Kingdom: Spot on!

Hernán Santa Cruz of Chile: The words we’re talking about in constitutions or Magna Carta, could be mere parchment barriers as one of the founders put it, unless they’re supported by the people. In our case, by we, the people. Over more than 700 years, the development of the rule of law is what underlies, it’s what gives meaning to Magna Carta and its continuing influence. It reminds us that we have the obligation to carry forward the values represented in that document so that it doesn’t become simply a list of meaningless rights.

Charles Habib Malik of Lebanon: You mentioned the Rule of Law. I’d like to come in here. It is the basic principle of governance of any civilized policy or society. Everyone, whether individually or collectively, is unquestionably under the supremacy of law. Whoever the person may be, however high he or she is, no one is above the law notwithstanding how powerful and how rich he or she may be. And Magna Carta gave us that.

It’s our legal heritage. All our constitutions have echoes of Magna Carta in it.

It symbolizes rule of law, insurrection against tyranny, limited government and popular sovereignty. A cornerstone. And what we have built on that cornerstone is the rule of law. What happens in a court, is a restraint of power and might, exactly what the barons were doing at Runnymede and they coerced the King into granting the Charter.

Peng-chun Chang of China: When we think of the Rule of Law, we mean something very concrete, very practical and it certainly traces its origins to Magna Carta. And the one reason why we live in communities that are basically peaceful, that most people respect the rule of law – they don’t want violence in the streets. They want people who’re violent to be arrested. They don’t want the strong to always win. And this is practical rule of law. This is what means that people go up and down the street just getting on with their lives, looking after their families and so on and so forth. Rule of law is not an esoteric, wonderful, academic subject. It’s practical, hard reality.

Eleanor Roosevelt of the United States of America: Yes, the fact that the government only has such powers as we, the people, decide to give it, is absolutely something that stands out.

There isn’t a country represented here which has not in this century had at least one government that was capable of making orders that led to people being locked up and in many cases killed. There isn’t one here. We don’t realize how fortunate we are that there’s a channel between the judiciary and us. And we have got to be careful to not take these things for granted. The rule of law applies because you have independent judges but in the end it also matters that your community; our community accept that this is the way we run. That there isn’t a government that says “well, judges can say what they like, we’re going to do this.” And that the governments also respect the rule of law. I think that’s a crucial part of it. It’s a community thing. We’re all in it together. Governments hate judges who make findings against them. Of course they do! But nevertheless, they respect it. And that’s where we’re lucky. These traditions have gone on for a very long time. And they’re precious to us and precious to everybody in the street that you were talking about a few minutes ago.

William Hodgson of Australia: If I may put it in the simplest terms, Magna Carta represents democracy. The ideal of the commitment to the rule of law. It correspondingly became a form of judicial review.

That it was written down became very important for us.

You are dealing with a writing. You’re not dealing with some broader interpretation that you might expect from the political branches. And at least on the theory of how law was practiced at the time, you are not imposing your will on the question, you are simply construing a legal document. The fact that there is a writing there, I think makes the institution of judicial review more acceptable.

There is a higher law underlying some of our rights. It was used as a model for upholding constitutional limits to statutes.

Peng-chun Chang of China: If I could come in here… That doctrine of abstract right or a divine higher law is rather religious. We’re being required to believe six impossible things before breakfast. Not everyone shares the same morality. Which is why I’d like to think the Magna Carta’s a product of the theory of Equality.

There’s Rights – you possess something that cannot simply be suspended.

The reason why it’s successful and will remain and more and more people will accept it and indeed in 300 years’ time everyone will accept it is because it isn’t religious. It’s based on a much more simple idea which is the existence of other people.

Charles Dukes of the United Kingdom: Well said, Mr. Chang! One of the fundamental points that comes out of the Magna Carta is the idea that you have to have access to justice. That if you can’t enforce your rights in a court of law, you have no rights. If we try to reduce rights simply to cultural practices, we move into a rather dangerous world.

So, in a sense the Universal Human Rights would be guff if they can’t be enforced.

William Hodgson of Australia: But we have to accept that rights are fundamental and pre-exist to the question of enforcement. Our cultures introduced us to these very rights.

Peng-chun Chang of China: Sure they did. But let’s desist from bringing culture or religion into the picture. If we look at Clause 61. It’s from this that we take the very vivid principle: That no one is above the law. No King, King-anointed, god-servant, inherits by divine luck (you could call it) that right. Now every King in medieval Europe made an oath that he’d be a good King, do lots of justice, look after lots of poor people, all the sorts of things that you’d want your King to do. But in medieval Europe, if the King didn’t provide justice and so on and so forth, I’m afraid they took the view that he’d have to answer to god in heaven. Well, when the King’s dead, it’s not much good if you’ve had no justice or you’re not properly looked after.

Charles Dukes of the United Kingdom: Indeed. What Magna Carta did was to say in clause 61 that if the King didn’t abide by the Charter when he was notified that he’s in breach of it. In effect, a council of twenty-five barons can take over the running of the kingdom. They’re not to harm him, they’re not to injure him, and they’re not of course to treat him with violence or his family. But they’re no longer stuck with the oaths of allegiance and fealty. And this is a fantastically important moment. Suddenly, the King is answerable on Earth, not just in heaven. And from this we derive constant references through the Middle Ages to the King not being above the law. The law comes first, the King comes second. He’s certainly the most important person in the Kingdom but he is beneath the law. The Magna Carta was just trying to bring the King down to Earth.

William Hodgson of Australia: It leads us to this really important point, which is easy in any democracy to overlook but in any dictatorship would be no trouble at all – no King is above the law, no President is above the law, no executive is above the law, everyone is answerable for their actions, in court.

Charles Dukes of the United Kingdom: And that leads to the second aspect, we’re all entitled to justice. The clauses don’t just say justice, they talk about right and justice. Now, there weren’t many rights about in 1215 but over the centuries, our rights have come to be established and you find the preservation, the entitlement to a court system that will preserve your rights is there found within the Charter and I regard the insistence in the Charter on right and justice as being its second most important legacy to us because again, we are there, responsible for seeing that justice is available to all our citizens even if they’re taking on the President/Prime Minister or they’re taking on the government, all the great local bodies, local authorities, these rights are recognized in the Charter. The barons weren’t thinking of us. The barons weren’t full of ideas about voting, of course they weren’t. But as our country developed and then the USA did from ours and the constitutional arrangements, these things became part of the country. In England now, if somebody says something or does something that somebody would regard as diabolical and dictatorial, and someone says it’s against Magna Carta. It isn’t against Magna Carta. There isn’t a word in Magna Carta about trial by jury, but people think of Magna Carta as representing their rights, their entitlements, the need for justice to be done and most important of all, equality before the law.

Eleanor Roosevelt of the United States of America: If I were to get a measure of all we’ve said today, Magna Carta still reverberates.

In the court process: when civil justice systems are in disarray. The cases are taking too long to come on, just sort of meandering. And when the judiciary decides this is not the way the administration of justice should operate and relying on Magna Carta, certainly referring to Magna Carta or not delaying justice – and Justice delayed is justice denied – A whole new branch of jurisprudence can be created – the structure of saying we will not put up with this, the judicial system cannot accept this kind of slow, turgid process, had Magna Carta as part of the support for it.

So, yes, if you say Magna Carta, you’re probably a bit short of better authority but nevertheless it remains a useful reminder to all of us, including the judges that there are some very basic principles which govern our lives, govern our judicial lives and which we should be alert to. And then bear in mind, we talk about due process, we talk about habeas corpus, we talk about impartial juries, you have a Bill of Rights in England, we have a Bill of Rights here in America, these are in direct lineage from Magna Carta. When you examine the lineage that has come down to us from Magna Carta, many of the arguments which are well founded stem originally from the thought processes that have developed over the last 700 years.

Hernán Santa Cruz of Chile: If you don’t take your freedoms for granted, then the Magna Carta becomes a more vivid, vibrant document. Nobody was looking for independence to start with. Everyone was looking for rights. It is very useful as a symbol that represents the rule of law, liberties. It’s been reinvented over the years. It’s a charter of liberty. It was a powerful symbol. Through the ages. It’s available whenever you do need resort to something that in a tangible way represents these basic fundamental liberties.

Eleanor Roosevelt of the United States of America: Magna Carta was the dawn. And we have sworn to give the world some more sunshine.

(Vociferous agreement. Applause. End of day’s play.)

When the Universal Declaration of Human Rights was adopted by the United Nations in 1948, it was declared ‘a Magna Carta for all human kind’.

And so, That Great Charter lives…

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