70115 – Perspectives on Law



UTS: Faculty of Law70115 – Perspectives on LawAssignment 1: Option (2) SolicitorSolicitor: ‘It doesn't matter that the original purpose of the Magna Carta has been forgotten by many people today. The real importance of the Magna Carta is that it continues to symbolise the power of the people against the State.’ Critically analyse this statement.Magna Carta was born out of a turbulent time in English history: the brink of revolt, invasion and civil war. The King’s misuse of power, with unjust taxes supporting fruitless and exorbitant royal endeavours framed the year 1215. In pressuring the King to sign Magna Carta, the barons secularised and institutionalised a national urge for revolution. This essay will show that the original purpose of Magna Carta is both legally and symbolically insignificant. This requires a threefold analysis. First, historical analysis is necessary to explore the context of the document. Second, an exploration of the original purpose of the document and its significance – especially in the light of the deconstructivist ideas of the inferiority of “intention” as a literary reading – is essential. Finally, an interrogation of its current legal weight and its symbolic complexity and primacy in the representation of the power of the individual against the state allows for alternative perspectives on the document.Magna CartaIn defining Magna Carta’s context, two analyses are required: an analysis of the legal context and a historiographical analysis of its changing representation in both the law and public opinion.Before 1215, there existed a complex feudal system: all land seised from the King, who had direct legal ownership of the whole of England. The extension of tenure to Lords and commonfolk was seemingly contractual, but only enforced by the King of “the lord’s moral or social obligation”: the common people had no legal right to the land, and, thus had no rights and little political sway. The people of the land lacked the legally enforceable rights and limits on power that are hallmarks of modern democracy. In fact, legal rights only existed for aliens. There was, however, some measure of equality in the common law: the King’s justitiarii itenerantes developed a bank of common decisions, which would become the common law. However, there was still no legal way to oppose the King’s decisions. This did not stop the nobility from trying. The commonfolk swore oaths of fealty, not to the King, but to the barons, who could then extend their power to try to influence the King through participation in the curia Regis, and through intimidation.Also significant was the specific local and international political contemporary context, which was quite complex. Two events triggered the escalation to the signing of Magna Carta: King John losing England’s land stakes in France, and his dispute with the Pope Innocent III over the election of the Archbishop of Canterbury. The Pope issued a papal bull that deposed the King, allowing the King Philip of France to execute the bull. However, King John fixed relations with the Pope by making the whole of England the Pope’s fiefdom and by increasing his tithe. However, with the subsequent defeat of King John and King Olaf of the Holy Roman Empire, tensions between the barons and the King grew. Furthermore, the King’s taxes continued to grow. With the blessing of the Archbishop of Canterbury, Langton, the barons “insist[ed] on their pretensions” and confronted the King. In 1215, faced by the armies of the confederated barons of England, the King submitted to Magna Carta, a more strongly worded and legally enforceable re-draft of Henry’s Charter.Whereas the legal and historical contexts are identifiable, the ramifications are more complex. The original 1215 Charter was effective for only a short duration, and there were many revisions to it in between the years 1215-1297. The Magna Carta that was legally significant was the 1297 inspeximus, whereby Edward confirmed into legislation a modified Magna Carta. The many revisions of Magna Carta obscure its original purpose.The Original PurposeThere are certain issues inherent in interpreting the original purpose of Magna Carta: which original purpose should be analysed (and, as such “remembered” and taken into account in legal decision-making). The 1215 iteration of Magna Carta was a reaction to the complex political situation described above. As such, it included clause 61, which reflected the council of barons’ intention to subject the King to checks, effectively and legally limiting his power. The 1297 iteration of Magna Carta, however, did not include this security clause. This due to the different contexts, including the lack of baronial pressure in 1297, where King Edward I was merely confirming King John I’s charter in homage to King Henry III: as an act of good faith rather than overt military pressure. The original purposes of these are complex and different, reducing the relevance of context and original purpose in its application.There is legal and philosophical precedent for the isolation of intention from application: namely the rules of statutory interpretation and the literary analysis. Furthermore, the Tudors of England in mid fifteenth to early sixteenth centuries put this in practice.The common law rules of statutory interpretation developed much in the way that the interpretation of Magna Carta has: starting literally, expanding through a purposive approach and, finally, to a “golden rule” of “avoid[ing] obvious absurdities” and extracting the most proper current reading. The literal approach would define the original purpose and interpret the Charter in that context, which would be quite narrow. The mischief approach is more appropriate, looking not only at what the Charter tried to do, but what it tried to prevent, allowing interpretation that is more flexible. Finally, however, a “golden rule” analysis of the Charter would reveal a much wider scope, expanding the word of the law in the direction of current applicability and relevance, rather than its original intention. With the “golden rule” approach, the Charter is most applicable to current legal contexts. There is a philosophical basis for this rule as well – the Deconstructivist School of literary analysis, as expounded by Derrida and Barthes. The School posits that, once the story emerges, proper analysis requires but a cursory glance at the author, whose intentions become one of many readings of the text. In application to Magna Carta, the intention of King John I and the barons becomes less relevant, as do the intentions of King Henry III, King Edward I and the English and Australian Parliaments who repealed or extended the jurisdiction of the legislation. According to this school, if the original purposes of Magna Carta were forgotten, it is relatively unimportant, since contemporary readings of the Charter are as valid, if not more so than the intentions of the old Kings of England.This seems to be the attitude of the Tudors disregarded the intentions of the Charter’s writers, “reinvent[ing Magna Carta] as [a] guarantor of ... basic rights.” The original purpose of Magna Carta is complex and somewhat diluted by its multiple iterations. As such, there is no doubt that its purpose has been forgotten, and replaced by contemporary interpretations. Considering the success of the Tudors, and taking heed of deconstructivist philosophy and modern rules of legislative interpretation, that the original purpose of the law is forgotten seems less relevant, and that it is dynamically interpreted should be lauded.The Real Importance ... A SymbolConsidering that the Charter is now isolated from its original purpose, there remains the question: from whence does its pervasive influence originate? There are two possible solutions, its legal power and its symbolic influence, and both must be analysed in order to ascertain its “real importance.”Regarding present day legal weight, Magna Carta requires assessment on two counts: applicability in the United Kingdom and in her former colonies. In the United Kingdom, 1863 statute revisions repealed most of Magna Carta, with subsequent revisions repealing almost all clauses of the 1297 Charter, leaving only clause 1, 9 and 29 (although each has been replaced by subsequent legislation). In Australia, however, Magna Carta is still actively in force, passed on in 1828, confirmed in 1865 and overtly re-legislated in NSW in 1969. Magna Carta, in Australia, is an active law. In Prisoners A-XX Inclusive v State of New South Wales, Sheller JA states that “25 Edw I Chapter 29 ... [is] in force in New South Wales” although, Sheller JA does imply that Magna Carta is to be taken as a statement of the principles of common law, rather than as a regular law.Legal longevity has, however, recently been discounted as a measure of importance in legal literature, with judges claiming “archaic” laws should no longer be in place and legal literature stating asserting the primacy of flexibility over strict adherence to ancient laws who’s meaning is lost: “sometimes the rules that make the least sense last the longest”. Even considering Magna Carta’s relative legal impotence, there is no doubt, that it is still central to the common law system, even if only as a historical anchor for the common law. Furthermore, even allowing for the total rejection of consideration of original purpose, there has been definite and current analysis of the original legislation and its historic, and changing, interpretation.This essay has ascertained that the Charter is still somewhat legally significant; however, its legal weight must be balanced against its domination as a symbol of the common law. Here, one must compare the alleged achievements and actual effects of the Charter, as well as the power of the symbolic but non-legally based assertions on the functionality of Magna Carta. The four pervasive myths associated with Magna Carta: a guarantee of trial by jury, the creation of parliament in England, the requirement of parliamentary consent for taxes and a means to overrule the absolute power of the King. These myths create a powerful, but legally fractured, symbol of the power of the people over the state.The first myth stems from an interpretation of clause 29, whereby “no free man shall be ... imprisoned ... except by the lawful judgment of his peers or by the law of the land.” However, there is a flaw in this analysis: where the clause seems to require “lawful judgement of his peers,” it allows an alternative, “by the law of the land.” At this time, the King was the law of the land, rendering the entirety of the clause legally powerless. However, this clause did provide and alternate benefit, a free writ whereby any prisoner (or victim of punishment) could question the legality of his imprisonment via his right to habeas corpus. Whilst the right to “lawful judgement of his peers” cleared the way for a jury based legal system, it was only with King Henry II and the Fourth Lateran Council that juries became commonplace.The second and third myths are more complex. Whereby there are brief references to councils in clauses 61 and 14, the first was not reissued in 1297 and the second only hinted at the emergence of parliament. Maitland argues that Magna Carta was the first legal text to with “what may be called a distinct definition of [parliament]”, which was essential to its future legal and political weight. However, Maitland then redresses the statement, stating, “During the period which ends with the charter we have little evidence as to the constitution of the national assembly.” Whereas the legal significance of this is minimal, the symbolism expounded upon by the Tudor Kings and the early parliaments allowed these almost incidental turns of phrase to flower into the modern parliamentary system, and the requirement for parliamentary to approve taxes - profound symbols of the power of the people.The fourth myth is perhaps the most significant in creating the well-established symbol of Magna Carta as empowering the people over the state. This myth was also technically true, when it comes to the 1215 iteration of the Charter. Clause 61 provides that, for the first time in English legal history, the King must swear an oath of fealty to his people (as represented by the baronial council) whom had enforceable veto power over him. This was however, repealed and not reissued. This did not destroy the idea of legal revolt, however: with Harry Evans stating in a speech to the Senate that the legal significance of the Charter was irrelevant as compared to its symbolic domination. He identifies all of the myths of Magna Carta as coming together: “the myth of Magna Carta [is] reflected [in] the relative successes of the English revolutions.”Finally, it is interesting to note the way in which the Charter has entered the collective subconscious of society. This is explored in The Trialwhereby Kafka dances around a dystopic legal system devoid of the central rights associated (in myth) to Magna Carta. The system does not guarantee habeas corpus, with the protagonist, K, imprisoned without the ability to ascertain the reason for this. His peers do not try him; the legal system is unapproachable, closed. Kafka’s caricature revealing, through the climactic grotesque of K’s death, that our society is revolted by legal system that denies the basic rights symbolised in Magna Carta. As such, even given its legal abjection, the Charter is symbolically central to both the common law system and the international legal subconscious.The original purpose of the Charter has become obscure, but the Charter is still significant, both legally and as a symbol of the power of the people. Magna Carta’s original purpose may have been forgotten, but it is still significant, the legal and symbolic weight of the Charter balancing, allowing for moral extension and legal enforcement when required. Furthermore, there is legal and philosophical precedent that allows for the relative disregard of legislative context in judicial interpretation. The Charter serves as a symbol of the power of the people, a first point of call for human rights and a last check of symbolic revolt against over-powerful monarchs.BibliographyArticles – Books – Reports Australian Law Postgraduate Network, Statutory Interpretation (2009) ALPN <; at 19/09/09.Baker, J. H., An Introduction to English Legal History (4th ed, 2002).Barthes, Roland, 'The Death of the Author' (1968) 5-6 Aspen item 3, essay 1.Bryson J, John, 'Law and Politics of Magna Carta' (2004) Plantagenet Society of Australia <; at 19/09/2009.Butt, Peter BA LLM(Hons)(Syd) et.al. (eds), 'Butterworths Concise Australian Legal Dictionary' (2004).Calvert, Peter, Revolution (1 ed, 1970).Cohen, Nick, 'Who killed Magna Carta?' (2000) The New Statesman Essay - The tyranny of the brands NewStatesman <; at 15/09/2009.Corey, Richard, 'The day Magna Carta died' (2006) A Tangled Web <; at 15/09/09.Evans, Harry, 'Bad King John and the Australian Constitution' (1997) Occasional Lectures <; at 19/09/2009.Evans, Michael, Sources of English Legal and Constitutional History (1st ed, 1984).Finet, Scott, 'Franz Kafka's Trial as a symbol in Judicial Opinions' (1988) 12(1) Legal Studies Forum <; at 16/09/2009.History of Law, Magna Carta history A.D. 1215 (2004) <; at 15 September 2009.Kafka, Franza, The Trial (1st ed, 1925).Lexington, 'The idiocy of protectionism' (2009) The Economist <; at 22/09/2009.Lyons, Bryce, 'XXII Magna Carta and the Defeat of Angevin Absolutism', A Constitutional and Legal History of Medieval England (2nd ed, 1980) 310-315, 317-319, 321.Maitland, F.W., The Constitutional History of England (1st ed, 1888).Robertson, Geoffrey, Crimes Against Humanity (3rd ed, 1999).Wordnet, 'Distraint' (2009) Princeton Wordnet <; at 18/09/09.IV, Twelfth Ecumenical Council: Lateran, 'The Canons of the Fourth Lateran Council' (1215) <; at 19/08/2009.Turner, Ralph V., 'The Origins of the Medieval English Jury: Frankish, English, or Scandinavian?' (May, 1968) 7(2) The Journal of British Studies 1-10.CasesPrisoners A-XX Inclusive v State of New South Wales (1995) 38 NSWLR 622.StatutesThe Australian Courts Act 1828 (Imperial) 9 George IV Chapter 83.The Charter of Liberties 1101 (England) 1-2 Hen I.Civil Procedure Acts Repeal Act 1879 (England).Colonial Laws Validity Act 1865 (UK).Confirmatio Cartarum 1297 (England) 25 Edw I.The Habeas Corpus Act 1679 (England).Imperial Acts Application Act 1969 (NSW).Magna Carta 1215 (England) 16 Jon I.Statute Law (Ireland) Revision Act 1872.Statute Law (Repeals) Act 1969 (England).Statute Law Revision Act 1863 (England). ................
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