人权史上的《自由大宪章》

《自由大宪章》被公认为是英国人权发展史上的一个里程碑式的文件。《自由大宪章》是英国的盎格鲁 -撒克逊传统与诺曼征服后特定的历史背景相结合的产物。它对于“自由民”的权利的规定体现了英国权利观念的特点 ,并树立起了英国人权传统。人们在对它的历史诠释中赋予了它在人权发展史上的重大的意义。《自由大宪章》作为英国人权传统的基石 ,它对于英国、欧洲大陆、美国乃至世界其他各国都有着深远的影响。     

The Commonwealth is Getting its Second Wind

This article looks forward to the Commonwealth Heads of Government Meeting in London, April 2018, in light of reflection on the nature of the Commonwealth (‘club, church or beehive?’) and its legacy. Special attention is paid to the significant anniversaries of 2015—Magna Carta, United Nations, end of the Second World War, London Declaration and 50 years of the Commonwealth Secretariat. The author also considers the agendas for CHOGM and the implications for the Commonwealth of Britain’s exit from the European Union (Brexit).     

Remembering A Year of Anniversaries, 2015

2015 was a year of significant anniversaries and commemorations related to the Commonwealth, Magna Carta, World War II and the United Nations. In this article the author reflects on these events, on his personal participation and on the media coverage of the events.     

MAGNA CARTA 1215: A GLORIOUS FAILURE

Along with the tradition of celebrating the importance of the Charter of 1215, there is a long tradition of skepticism concerning its purpose (which was not to achieve responsible government but to preserve the property of wealthy landowners), its force (it was annulled by the Pope and repudiated by the king within a few weeks), and even its success as a peace treaty (war broke out within a few months). The author will outline the reasons for skepticism, because we can only see what there is to celebrate in 2015, if we understand that the Charter of 1215 was the failed result of a reactionary armed tax rebellion by wealthy and powerful landowners, who were not trying to make a new constitution. What is there to celebrate? The author will address that question by asking why the Charter of 1215 was neither void (as the Pope asserted) for repugnancy to the King’s authority, nor voidable for duress. The author challenges the idea that the Charter of 1215 is the foundation of the rule of law in England, arguing that the rule of law goes back farther, and that the Charter of 1215 was very limited in its impact. But it did promote the rule of law in two ways: by giving new specificity to legal duties and restrictions that the king had already been subject to, and by highlighting the country’s need for effective processes for giving effect to those duties and restrictions.     

MAGNA CARTA AND THE AMERICAN POLITICAL IMAGINATION: TWO INSTANCES OF HABEAS CORPUS VINDICATED

Magna Carta has long been understood as a source of inspiration for the U.S. Constitution, and especially its enshrinement of the writ of habeas corpus — the right of any prisoner to test his or her detention according to the law. In the “Suspension Clause” of the U.S. Constitution (Article I, Section 8), Congress is granted permission to suspend habeas corpus only “when in cases of Rebellion or Invasion the public Safety may require it.” This article surveys two failed attempts by the U.S. government to suspend the writ of habeas corpus. The first (which was actually the very first such attempt) was in 1807 and followed revelations of the so-called Burr Conspiracy. The second (incidentally the most recent in American history) occurred during the War on Terror and culminated with the Supreme Court’s decision of Boumediene vs Bush in 2008. A close examination of these two historical episodes reveals just how different were the constitutional processes of the early republic and contemporary times. Additionally, comparing the uses of Magna Carta during the two episodes demonstrates marked changes in American political culture. Historical consciousness, vital to early Americans’ understanding of their political system, has shifted to an elite level. Likewise, the protection of fundamental liberties has migrated from the popular branch of government (Congress) to the elite one (the Supreme Court). This article considers the implication of this shift in both constitutional processes and historical consciousness.     

MAGNA CARTA AND THE FUNDAMENTAL RIGHT TO DUE PROCESS

The 800th anniversary of Magna Carta has been marked by much pageantry and celebration. Some scholars have taken this opportunity to point out that the myth of Magna Carta is far greater than what the actual 1215 Charter managed to accomplish. Nevertheless, Magna Carta did make a meaningful and concrete contribution to due process in 1215, as shown by certain provisions that are seemingly overlooked by critics eager to downplay the Charter’s importance. This article highlights two lesser known clauses of Magna Carta that had real contemporary significance in guaranteeing the availability of jury trial for some categories of civil litigation. The ringing promises of Clauses 39 and 40 may have inspired great jurists and founders of nations, but the more humble Clauses 17 and 18 — specifying the proper location and manner of hearing certain civil cases — must also be taken into account in assessing the Charter’s importance.