Some may view separating fact from fiction as the very remit of legal practitioners and courts of law. That is certainly how law is often portrayed in dramatised reconstructions – lawyers wading through pages and pages of documents to ascertain the truth of the matter to be argued before court in the ultimate pursuit of justice.
Yet fiction is not foreign to law. Indeed it is sometimes central to its development and implementation. The annual lecture at Cumberland Lodge on 24 June 2015 saw Lord Hoffmann present an interesting insight into the constitution fiction of Magna Carta. Lord Hoffmann took his audience through an account of the history surrounding the creation of ‘The Great Charter’. In so doing, he contended that, while the popular view of the Magna Carta as enshrining principles fundamental to modern day concepts of liberty is simply wrong, the symbolism of Magna Carta is its enduring and vital legacy.
There has been much by way of celebration of Magna Carta of late as 15 June 2015 marked the 800th year of its agreement. As Lord Hoffmann explained, the Magna Carta is very much a product of circumstances – an agreement made at Runnymede between King John and rebelling barons who had a long list of grievances that they demanded to be met by the King. This document is preoccupied with the practical resolution of matters of the day and so articles provide for the clearance of all fish-weirs from the River Thames and the standardisation of measures of wine and ale. The acclaimed Magna Carta also makes clear that no one would be arrested for murder simply on the basis of a woman’s accusation, unless her husband happened to be the victim of the crime.
How did a highly anachronistic document, that was in fact only valid in original form for a matter of weeks, come to be seen to enshrine some of the most fundamental concepts of rule of law abiding states? Certainly the Magna Carta contains several clauses that, in the abstract, seem to be of far reaching consequence. Article 39, which remains valid law through subsequent enactments, provides that ‘No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.’ And Article 40 provides: ‘To no one will we sell, to no one deny or delay right or justice.’
Lord Hoffmann pointed to the 17th century and figures such as Sir Edward Coke when assigning responsibility for Magna Carta’s enduring legacy. On Coke’s analysis, articles like 39 and 40 of Magna Carta embodied ancient principles of English law, never mind the particular purpose of the document in which those articles were written.
For Lord Hoffmann, and many others, this fiction does not take away from the importance of the Magna Carta. It is not so much what Magna Carta says that is important; it is what people feel that it says that is important. It is the symbolism of Magna Carta that sustains its importance in present day debates of human rights, including in the emerging debate over whether the Human Rights Act ought to be replaced by a British Bill of Rights.
I find it fascinating that there is a readiness to accept Magna Carta’s legacy as a fictionalised construction yet at the same time to seemingly advocate that the fiction is perpetuated. One might hope that principles that are so fundamental to our modern day conception of rule of law need not be grounded in symbolic and fictionalised origins.