The Rule of Law and the Magna Carta

Critics of assumptions that we live under the rule of law have come into fashion suddenly, with the 800^th anniversary of the Magna Carta this month. Nicholas Vincent of the University of East Anglia called the myth of “an English-speaking people, freedom-loving people who’ve lived with a degree of liberty and under a rule of law for 800 years “a load of tripe,” among other pungent criticisms. But where were these commentators when the British and the U.S. unloaded the weapons of rendition on detainees in the War on Terror or detention without trial on immigrants? Why is this discussion of the history of the rule of law occurring with little or no reference to the current crisis of the rule of law?

A wide-spread presumption based on the Magna Carta is that the rule of law holds monarchs (or elected officials) accountable to the law equally, so that they are prevented from violating the law with impunity. Article 29 of the Magna Carta provides that: “The body of a free man is not to be arrested, or imprisoned, or disseised, or outlawed, or exiled, or in any way ruined, nor is the king to go against him or send forcibly against him, except by judgment of his peers or by the law of the land.” The Magna Carta did protect the council nobles meeting with the king from arbitrary imprisonment, and this principle formally became the law of the land when the 1297 version became part of English statute law. Yet Tom Ginsburg of the University of Chicago law school contributed to the Magna Carta celebrations by pointing out that the trials of the day protected nobles so that they “could not be tried by commoners,” rather than enforcing equal rule of law for all. And the long suffrage struggles of the past and present have shown that equal access to law through voting remains distant for many, since when the monarchy was replaced by parliamentary-elected representatives with the English Civil War of the 1640s only a very small percentage of adult males were able to vote, just as happened in the United States.

While the Magna Carta prescriptions were strengthened through the 1679 Habeus Corpus Act and the 1689 Bill of Rights in England, legal rights to freedom from arbitrary detention have been difficult for all the people to achieve. For example, in the 21^st century many critics have attacked the imprisonment of those in the legally elusive category of “enemy combatants” under the global War on Terror as a violation of both national law and also international legal standards. Likewise, the detention without legal proceedings of immigrants post-9/11 and afterwards in secret detention centers in the U.S. and in stadium-size facilities in Bari, Italy, would seem to be failures in the rule of law. The openly acknowledged use of waterboarding and other forms of torture violated both U.S. and international law, also suggesting that the rule of law in the present day is not effective.

The legal justifications for these violations of the rule of law are found in controversial legislation passed in the U.S., the U.K., and an ever-increasing number of countries both before and after 9/11 and other events now known as the War on Terror. These policies have been proposed by elected representatives and heads of state, yet a wide range of international jurists have determined that they threaten the rule of law both nationally and globally.

What has been missing from the recent criticisms of the Magna Carta mythology is an examination of how these legal events produce what Carl Schmitt termed a “state of exception.” Early in the 20^th century Schmitt examined modern instances when the sovereign officers of the modern state exercised the power to install emergency powers under the rule of law in his analysis of what allowed the state to resist democratic pressures. More recently Giorgio Agamben draws on Schmitt’s theoretical considerations to critique extended periods of the state of exception, such as Hitler’s February, 1933 suspension of the Weimar Constitution which lasted for the duration of the Third Reich. Agamben’s recent work views the USA PATRIOT Act as a permanent installment of emergency power, and Constitutional law expert Allan Ides also argued after the passage of the USA PATRIOT Act that it put the rule of law at risk.

Both Schmitt and Agamben have been concerned with the common post-WWI practice of rule by decree, where heads of state have carried out unrestrained extensions of their powers even in what appear to be constitutional systems. Presidential signing statements under both Bush II and Obama, Presidential authorizations of the NSA to monitor calls and emails, President Obama’s Kill List, and many other examples are only some of the most recent examples.

Agamben concludes that the difference between dictatorship and democracy is not so large as many might imagine, since modern states of exception establish a legal civil war allowing for the physical elimination of entire categories of citizens that form political reasons cannot be accepted into the political system. In this way permanent states of exception have become common practices of modern nation-states, including democratic ones.

Another widespread assumption supposedly grounded in the Magna Carta and now coming under attack is that the law comes from the people, not from the king or a modern executive office. In 1776, Thomas Paine argued that “the charter which secures this freedom in England, was formed, not in the senate, but in the field, and insisted on by the people, not granted by the crown.” While this may have appealed to the many land-owning farmers of the revolutionary era in the United States, Paine’s comments overlook the nobility of the council members who called the king to account in 1215 on the field at Runnymeade. Quick to point out that the Magna Carta agreement was between “a small group of privileged people and an even-more-privileged monarch,” Sarah Lyle marked its recent anniversary by reminding us that “the people” often refers to a select few of well-to-do, highly educated, property-owning males.

Our twenty-first century equivalent to the council of nobles who pressed the king to agree to the Magna Carta are elected officials, who must certify their gold-plated credibility by passing through the gauntlet of ever-more-expensive campaign fundraising to gain access to their noble positions as elected representatives. Rather than blood descent determining our nobility, money does, as was also true in ancient Athens where wealthy merchants dominated the Council of 400 that controlled the military and wrote the legislation.

The legal experts and historians who suddenly have attacked the myth that the Magna Carta founded the rule of law all share the same astonishing assumption: that we live under the successful rule of law in the U.S. and the U.K. Have the fields of law and history become so compartmentalized that the Magna Carta legal specialists are not reading the civil liberties lawyers and the English early modern historians are not reading the twentieth-century historians? Perhaps the Magna Carta commentators need more time for their morning coffee so that they might peruse the websites of The Guardian and The Intercept. Can readers expect historians to follow the work of advocacy organizations, like Human Rights Watch and the ACLU, who are filling in for depleted ranks of investigative journalism these days?

The past decade has seen only a small handful freed from among the thousands of so-called detainees held without trial, and occasionally judges and legislators have done so with reference to the Magna Carta. For example, Justice Kennedy wrote in the 2008 majority opinion in Boumediene v. Bush, “Magna Carta decreed that no man would be imprisoned contrary to the law of the land.” In finding that the Guantánamo prisoner Lakhdar Boumediene and other detainees had been deprived of an ancient right, the U.S. Supreme Court for some reason was still unable to free the hundreds of other prisoners at Guantánamo or the thousands others held without trial at Bagram or Abu Ghraib or other bases central to the War on Terror.

We may be seeing steps in the direction of re-asserting the rule of law in the recent rejection of some aspects of NSA mass surveillance by the U.S. Congress and the recent U.S. federal appellate court decision to allow a challenge to the post-9/11 immigrant detentions over a decade after the detentions ended . But until much more vigorous legislative policies and judicial limitations are in place, we will not be able to say that the rule of law is alive and well in the U.S. and U.K.

In our own day the list is long of other failures of the equal enforcement of the rule of law supposedly guaranteed by modern legal descendants of the Magna Carta. The killing of innocents by police officers with impunity can be understood as a failure of the rule of law to prosecute government officials, as can failures to effectively prosecute domestic abuse. Equal protection under the law has many well-documented exceptions, from drug sentencing to the death penalty to white collar crime.

In “Common Sense” Tom Paine urged Americans to write their own Magna Carta. Perhaps it is time for those in the U.S. and other countries to consider doing so.