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The Relevance of Magna Carta in Canada in 2015

When enacted in 1215, the Magna Carta was the first charter of it’s kind to guarantee the rights and freedoms to citizens, while restricting the powers of the sovereign.[1] This great charter sought to eliminate the arbitrary use of power of the king, and imposed the application of the law to all. Throughout the past 800 years the Magna Carta has served as a founding block for democracy, legitimacy, accountability and the evolution of human rights. This legislation is one of the most important sources of Common Law as we know it today.[2] Although many articles from the charter have been reformulated, amended or deleted, the key principles enounced were so powerful they still shape our legal system in 2015. The Magna Carta established inalienable human rights and inspired countries, as well as international organizations to broaden their horizons in terms of the application of the law and civil liberties. To have the Magna Carta in Canada serves not only as a reminder of how the law has evolved, it serves as an inspiration to expand the possibilities and go beyond protecting the most basic human rights. The historical aspect of the charter allows us to appreciate how it emerged in a democratic manner, and it’s current presence permits us to question the legitimacy of contemporary situations that would possibly allow us to alienate these rights when matters such as terrorism are presented.

History:

In 1215, England was ruled by King John, who was known to be cruel, merciless dictator, and under his reign poverty was increasing and liberties were restricted.[3] The barons who were at the time responsible for cultivating and administrating the land under his authority could no longer tolerate his blatant disregard for the law, along with his harsh and unpredictable sanction methods and demanded a change. [4] In response, negotiations occurred and the Magna Carta of 1215 was born.[5] This great charter was considered a success to the denizens of England since it was one of the first documents to grant judicial rights to citizens. [6]

One of the most important notions established in the charter that remains a fundamental part of modern law today is the right to not be detained without a just and fair trial before one’s peers.[7] This was exceptional and groundbreaking, considering it established standards and put an end to King John’s inhumane and arbitrary punishment regime.[8] The charter also allowed citizens to be imprisoned only by the law of the land, which, in itself meant that the king could no longer be arbitrary in his imprisonment, but must present legal recourse, and not simply rely on his emotions, his values, or selfish motives. [9] However, the Magna Carta did not ensure liberty for all – the Charter only recognized these rights and freedoms to free men, and at the time much of the British population were peasants and therefore not considered free men.[10] The Magna Carta remains to this day an influential and rudimentary source of the English Common Law.

The Magna Carta sets forward some fundamental rights and liberties that have been repeated, improved and built-upon over time. These liberties all play a crucial role in prestigious and influential documents such as the British Bill of Rights, the United States Declaration of Human Rights, the Declaration of the Rights of Man and the Citizen in France, the Universal Declaration of Human Rights of 1958, and finally the European Convention on Human Rights and the Human Rights Act.[11]

Although the Magna Carta itself did not put forward many of the broad concepts elaborated in these diverse texts, conventions and declarations, it served as an inspirational starting point for them. [12] It can be said that: “the Magna Carta forms the basis of the freedoms and liberties we now enjoy”[13].

The Magna Carta, historically can be seen as the foundation of the Common Law. Doctrine and case law has evolved around the major concepts of liberty, democracy, evolution and sovereignty. The Magna Carta and its essential principles and values shape the laws and charters or various countries, just as they do on the international level. It is also crucial to appreciate the struggle for justice that was present in the 1200’s when the law was a simple suggestion. The demand for justice as seen by the barons is also a fascinating way to appreciate the need for a reliable system founded on equality, justice and democracy, rather than purely on money, power and violence. Liberties, transparence and an equitable legal system are components we are still thriving for today. Having the Magna Carta in Canada is a wonderfully powerful way to appreciate how far we, as an English colony have come in terms of justice, evolution and adaptation, yet also represents the amelioration and perfections that can be made to our system of justice and government.

Legal Importance

The Magna Carta can be credited as a key source of the principle of rule of law. Reflecting the concepts in the Magna Carta, the rule of law establishes that no one is above the law, regardless of one’s political, economic or social standing. [14] It ensures that the law is applicable to all. This concept was established in order to protect individuals from the abuse, dictatorship or arbitrary use of force by the sovereign. It also provides accountability of those who transgress the law. [15] This concept is the most important rule of our constitution and it finds its roots in the Magna Carta. This great charter is essential to the development and the legitimacy of our democracy and validates our pre-existing laws.[16] It is what allows us, as citizens to live in a country free of oppression, abuse of power or revocation of our rights and freedoms.

The right to be judged by one’s equals also remains a fundamental right in modern Canada. The freedom of choice as to be seen before a Judge or Jury in indictable criminal cases is a liberty we take for granted. When looking back on the struggles and the determination required to obtain such a choice, it becomes quite clear that we must recognize the struggle in order to appreciate this liberty[17] This serves as a reminder that we the people have a certain power and are able to influence and power to obtain various rights or freedoms through democratic participation. The context has changed yet the facts remain the same. The Magna Carta was established when the barons pressured the King to respect their liberties and submit himself to the law. In modern times we have a similar power granted to us in the form of municipal, provincial and federal elections, where our opinion can be voiced and we are able to participate in a change.

The Magna Carta’s Relevance in 2015

Even 800 years later, the Magna Carta remains a fundamental source of Common Law.[18] Not only was this protection of rights groundbreaking in 1215, the broader notions found in this charter are the foundation on which multiple legal systems are founded, even today. These concepts, rooted in the Magna Carta are crucial to the proper development, administration and evolution of our Canadian legal system. This document did not explicitly define concepts such as accountability, democracy or evolution of law, yet hundreds of documents are inspired by the charter that and take it upon themselves to develop and expand on these values and notions.

These principles, rules and concepts established in the Magna Carta have served as inspiration to many influential leaders and governments. The particular liberty of being tried by our equals prior to being sent to prison is however sometimes overruled when the question of national security is presented. For example, in the early 2000’s when the threat of terrorism was high, individuals were denied the right to a fair process in due time and were detained and imprisoned immediately. The liberties expressed in the Magna Carta and then molded into our own constitution and international Bill of Rights are therefore not guaranteed. This raises the question – do we allow these liberties to be violated when we are scared? In instances of panic or fear due to terrorism, such as our current threats from ISIS, is it legally acceptable to disregard these rights? How do we identify which human right is more important: the right to security or the right to be free from the arbitrary application of the law? The presence of the Magna Carta should make us question the validity of certain laws and political initiatives, all while encouraging and inspiring us to thrive for the enhancement of liberties, democracy, accountability and a legitimate application of the law.

[1] Brun, Tremblay & Brouillet . Droit Constitutionnel, 5e edition, (2008) p.1054.

[2] Poirier, D & Debruche, A, Introduction Generale a la Common Law, 3e edition. (2005) p.146.

[3] Brun, Tremblay & Brouillet . Droit Constitutionnel, 5e edition, (2008) p.1057.

[4] Hudson, John. The formation of English common law: law and society in England from the Norman Conquest to Magna Carta. Routledge, 2014.

[5] Poirier, D & Debruche, A , Introduction Generale a la Common Law, 3e edition.(2005) p.67-69

[6] Poirier, D & Debruche, A , Introduction Generale a la Common Law, 3e edition.(2005) p.66.

[7] Ibid, p.147.

[8] U.S National Archives and Records Administration at https://www.archives.gov/exhibits/featured_documents/magna_carta/.

[9] McIlwain, Charles Howard. “Due Process of Law in Magna Carta.” Columbia Law Review 14.1 (1914): 27-51.

[10] Breay, C., & Harrison, J. (2015, March 13). Magna Carta an introduction. At http://www.bl.uk/magna-carta/articles/why-magna-carta-still-matters-today.

[11] Breay, C., & Harrison, J. (2015, March 13). Magna Carta an introduction. At http://www.bl.uk/magna-carta/articles/why-magna-carta-still-matters-today.

[12] Introduction Generale a la Common Law, Poirier, D & Debruche, A. (2005) p.145-157.

[13] Breay, C., & Harrison, J. (2015, March 13). Magna Carta an introduction. At http://www.bl.uk/magna-carta/articles/why-magna-carta-still-matters-today.

[14] Poirier, D & Debruche, A, Introduction Generale a la Common Law, 3e edition. (2005) p.29.

[15] Sen, Amartya Kumar. “Democracy as a universal value.” Journal of democracy 10.3 (1999): p.5.

[16] Brun, Tremblay & Brouillet . Droit Constitutionnel, 5e edition, (2008) p.1057.

[17]Linebaugh, P The Magna Carta manifesto: liberties and commons for all. University of California Press, (2008).

[18] Hudson, John. The formation of English common law: law and society in England from the Norman Conquest to Magna Carta. Routledge, (2014).

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