A Timely Reminder of Liberty’s Roots

Zachary Gorman is academic coordinator with the Robert Menzies Institute, previously having worked as a research fellow at the Institute of Public Affairs. He is also a professional historian with a PhD from the University of Wollongong and a BA with First Class Honours from the University of Sydney. Gorman’s research interest is primarily on the origins of the classical liberal tradition, both within Australia and in a wider Western context. His first book, Sir Joseph Carruthers: Founder of the New South Wales Liberal Party, explored how liberalism came to be associated with the centre-right in Australia.

He has now turned his attention to the broader issue of the origins of the Western political tradition of individual rights and freedoms. The result is Summoning Magna Carta: Freedom’s Symbol Over a Millennium, published this year by the IPA in conjunction with Australian Scholarly Publishing. This book addresses the history and culture leading to the preservation of fundamental rights, covering the period from the Anglo-Saxon invasion of England to the pre-federation founding of Australia’s political institutions.

The common-law tradition epitomised by the medieval instrument known as the Magna Carta transmits the notion that the political ruler is not above the law but subject to it. Under this tradition, public officers adhere to legal-institutional safeguards that effectively protect our fundamental rights from arbitrary government. Magna Carta can therefore be appreciated as the foundation stone of the important ideal of legality known as the rule of law. However, the Great Charter does not have the status of supreme law in the sense of effectively limiting the sovereignty of Parliament. Indeed, as Gorman points out, ‘the main thing to note is despite its grate fame and symbolism, the Charter is not in a privileged legal position. New statutes can override its principles just like any other Act, and its legal power tends to be emotive than binding’.

Gorman is quite right and, in fact, since the 1980s all but three of the original 60 clauses of Magna Carta have been entirely erased from the statute books in England. What remains are only the clauses guaranteeing the customs and liberties of the city of London (Clause 13); and the general prohibition disclaiming the king’s power to order arbitrary arrest, to forbid the sale of justice, and to guarantee judgement by a person’s ‘peers’ (that is, the person’s equals) – in other words, what today is considered ‘the right to trial by jury’ (Clauses 39 and 40).

However, Gorman also takes the correct view that the Great Charter is more than just a piece of parchment. It is, rather, an ideal of “government under the law”, or “an impulse to establish legal justice and restrict despotic government that grew conceptually over time”. Indeed, the whole story of Magna Carta is the story of gradual transformation of a feudal document into a tradition of individual rights and freedoms. This may be a myth but it is a powerful one since it has historically advanced individual liberty and the ideal of limited government.

Gorman’s book then explores Magna Carta in light of an important question: ‘Where do we find our freedom – how do we justify and protect the rights of the individual against the attacks and encroachments of the state?’ As he points out, the Great Charter was ‘reinvented by Englishmen of the Stuart era to justify parliamentary supremacy, Americans to claim no taxation without representation, and Australians to insist that the convict stain did not deny them their British birthright’.

Although it has limited impact on contemporary legal practice, the Great Charter has preserved its significance as a foundational document. Within its clauses lie the first germs of constitutional government that resonate even to this very day, which is reflected in requirements for trial by jury, the prohibition against cruel and unusual punishment, and in the right of the accused to remain silent and have the case subjected to due process.

The book is particular relevant when it covers crucial aspects of Anglo-Saxon history and its impact on the enactment of Magna Carta. Gorman writes that the Great Charter confirmed access to justice and freedom from arbitrary arrest as ‘two central pillars of the rule of law, which while not necessarily new ideas, were not enshrined in a powerful and evocative fashion’. ‘There was also the freedom to come and go from the kingdom during peacetime without seeking the king’s permission’.

Because King John’s son and successor, Henry, promised that he and all his heirs would never ‘procure anything whereby the liberties contained within this charter shall be infringed or weakened’, this ‘set Magna Carta in its privileged position’ as the fundamental law of England. In 1253, ‘the Pope even gave his direct backing to the excommunication of violators of the document, which was widely published in both English and French’. As a consequence, ‘the Church gave Magna Carta a sacredness and an inviolability that contributed greatly to its position in the public conscious. The freedom of the Church provision continued to give the clergy vested interest in its dissemination’.

Gorman also comments on the legacy of Simon de Montfort. Before Montfort’s army was annihilated on the battlefield at Evesham, he sought to consolidate and expand the power of “parliament” under an agreement with the king called the Provisions of Oxford, in 1258. Henry III’s rejection of this agreement culminated in the Second Barons’ War where the victorious Montfort became de facto political ruler of England, thus establishing the “Great Parliament” of 1265 which included representatives of knights and burgesses from the towns. ‘What happened was a watershed, a major step in the evolutionary growth of the system of parliamentary democracy’, says Gorman (p 146). ‘It was government through legislation where the initiative was shared by both the rulers and the ruled … Montfort was staking a claim for liberty and democracy that echoes down through the ages’ (p 146). 

Gorman then explains that, although the birth of the English Parliament is often credited to this momentous event, Montfort’s parliament did not enjoy a long life. The parliament established at Westminster, on January 20, 1265, would last only seven weeks. Henry’s son, Edward, led a successful revolt and Montfort ended up killed at the battle of Evesham. But because Henry continued to meet his barons to discuss matters of national interest, the word ‘parliament’ became enshrined in the lexicon of English political life. The Commons first met separately from the nobility, but from 1341 onwards they started meeting together, thus creating two chambers.

The author also discusses, among other things, the contributions of John Fortescue (1394-1476). He was the first Chancellor to King Henry VI, and to be later appointed Chief Justice of the King’s Bench, in 1442. As Gorman points out, ‘Fortescue argued that the laws were the sinews that held the body together, and a king thus constituted had no more ability to change the laws than a head had to changes its sinews. At the very least such an attempt would damage both the head and the body’.

Gorman does well in linking Fortescue to St Thomas Aquinas. Fortescue was an admirer of Aquinas’ theological work, whom he often quoted and whose ideas of the law of nature he wholeheartedly embraced. By asserting that the English king couldn’t change the Fundamental Laws of the Realm, Fortescue was endorsed the principles that grew out from Magna Carta. He argued that, in England, ‘the king may not be free to govern his people tyrannically, which only comes to pass when regal power is restrained by political law’.

Chapter 12 is about Sir Edward Coke (1552-1643). Coke’s writings in the 1600s are the foundations stones for judicial review, anti-monopoly law, and freedom from seizure of anyone in their home. His decision in Dr Bonham’s Case (1608), one of Coke’s most celebrated decisions, became  ‘a central common law principle that a man should not judge a case that he was a party to, but the College of Physicians was entitled to do so by statute’. By invalidating an Act of Parliament, Coke was claiming the right of the common law courts to ‘control acts of Parliament, and sometimes adjudge them to be utterly void’. As such, ‘Coke foreshadowed and influenced the development of the American system of judicial review which maintains that basic liberties are protected even from legislative curtailment’.

Chapter 13 addresses the negative consequences of the Glorious Revolution, which, according to Gorman, ‘increased the capacity for tyranny, even while it reduced its likelihood by taking power of the hands of a single individual’. ‘1688 was a pivotal victory in the fight for popular government, but there remained an enduring debate over what were the proper limits of government, regardless of who wielded its power’, he argues.

By institutionalising “parliamentary sovereignty”, the Glorious Revolution inevitably transformed England, ‘from a collection of semi-autonomous local governments overseen by the king, into a centralised nation-state where Parliament alone held the supreme power. In such a situation the local autonomy of the colonies, which even internally functioned on the decentralised medieval model, became more exceptional and therefore vulnerable’.

The English Constitution has lost most of its moderating features that Montesquieu had praised in the eighteenth century. For example, the exclusion of the sovereign from politics was accompanied by the upper house’s limited power to participate in the legislative process, thus effectively making England to be entirely governed by a small committee of political rulers called ‘the Cabinet’. These significant alterations in the English Constitution mean that the doctrine of separation of powers (and checks and balances) which is so important to prevent political tyranny is no longer a reality under the present legal-institutional framework.

Chapter 14 is focused on the impact of John Locke’s political theory in America, particularly the American Revolution. Locke’s theory, ‘was prescient in calling for the separation of the legislative and executive branches of government, lets those writing the laws would have the added power to administer them in their own interest’. Gorman then explains that such theory is deeply embedded in the Declaration of Independence, especially in its appeal to inalienable rights of the individual coupled with the lawful right to resist political tyranny. He goes on to explain how the American Declaration sets limits on what constitutional governments could do.

Gorman also explains why the American colonists cared so much about British politics. The colonists based their grievances on the assumption that they were English subjects inhabiting the “New Continent”. Gorman refers to James Otis, a prominent American lawyer who appealed to Coke’s writings to argue that British policy was depriving the colonists of their basic rights derived from Magna Carta. As Gorman points out, ‘in addition claiming laws contrary to natural law should be null and void, Otis insisted that laws made by a British Parliament that gave Americans no representation robbed their rights. This served as a prelude to Otis’ 1763 pamphlet The Rights of the British Colonies Asserted, which declared that ‘taxation without representation is tyranny’.

The following chapter, Chapter 15, is entitled ‘Australian Liberty’. It starts with the reminder that ‘our most fundamental rights are inalienable, they are not ours to give away even if we desired to do so’.  The Great Charter has shaped who we are as a nation by inspiring the High Court to interpret the Australian Constitution, thus ‘giving strength to how the “on just terms” provision protect property rights and helping to inform the famous decision to strike down a ban on the communist party as contrary to the rule of law’.

Ultimately, legal and extra-legal elements that lead to the realisation of the rule of law come to us trailing their historical past. It is not safe, therefore, to assume that our individual rights and freedoms will be protected while the values and traditions that gave birth to the concept of constitutional government are being deliberately abandoned. The logic of thought, the evidence of history, and the testimony of ongoing events in this country are all opposed to that assumption. As such, Summoning Magna Carta: Freedom’s Symbol Over a Millenium is a very important book and I commend Dr Zachary Gorman on a significant contribution to the important cause of individual liberty and the rule of law.    

Augusto Zimmermann LLB, LLM, PhD, CIArb, DipEd, is Professor and Head of Law at Sheridan Institute of Higher Education in Perth, WA. From 2012 to 2017, he served as a Law Reform Commissioner in Western Australia. Professor Zimmermann is also President of the Western Australian Legal Theory Association (WALTA), and co-editor of “Fundamental Rights in the Age of Covid-19” (Connor Court / The Western Australian Jurist, 2020).