Recently I encountered yet another one of those anti-EU campaigners who prefer their ’ancient rights and freedoms’ to the existence of the European Union. The Magna Carta (1215) seems to be a favourite reference.
Is their belief based on a myth or on rational thought?
I invite readers to make a comparison.
Read the text of the Magna Carta in an English translation, available here with an introductory note:
http://www.fordham.edu/halsall/source/magnacarta.html
Then turn to the Charter of Fundamental Rights of the European Union, published in the Official Journal of the European Union 14.12.2007 C 303/1.
After reading both, make your informed decision. Which Charter do you opt for and why?
Ralf Grahn
Sunday, 29 March 2009
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Well the Charter contains more rights than the Magna Carta...
ReplyDeleteIt must be said that it is unfair to compare a 13th Century document to a modern charter based on centuries of political and human progress. But, equally, it is strange to cite the Magna Carta as a basis or even a starting point of political and legal liberties in England.
Again, focus on the Magna Carta is a very Whiggish view of history, and it seems to ignore a large amount of English legal history. The Magna Carta, after all, really only applied to a small class of feudal lords and strengthened their power and the feudal system as a whole. The feudal system can hardly be characterised as a well-spring of liberty and freedom since it involved tight attachment to the land and the aristocracy, and the holding of land in such a way as to reduce the lower classes of society to serfdom. It would be stretching credulity to breaking point to suggest that the Magna Carta provided liberty to any significant degree to people outside the aristocracy, just as it would be a misreading of history to claim that the Bill of Rights in the 17th Century granted anything other than parliamentary privilage.
(Indeed, it could be argued that article 17 of the Charter does more to protect liberty than the entire Magna Carta).
If the English wish to look to their history for their freedoms, then it is a complex story of land reform and court access, marked by more struggle than they acknowledge. The common law provided so little access to justice that a completely separate court system had to evolve to address the failure of the common law system: the equity system.
The emphasis placed on the Magna Carta and the common law neglects a large part of cultural and legal history throughout the UK and Ireland. Scotland, with its mix of the common law and civil law traditions is a particular case in point. The legal nationalism is a strange feature of English nationalism; I can't imagine such poison directed at other legal systems in other countries. Why is the civil law seen as almost evil, as depriving people of their rights? Surely there are areas where both legal systems can improve, and a proper debate on the merits of each and what can be learnt from their compartitive study would be better than invoking a nebulous notion and intellectually lazy idea of "ancient rights"?
I like this part:
ReplyDelete"(54) No one shall be arrested or imprisoned on the appeal of a woman for the death of any person except her husband."
Clearly women can not be trusted!
Eurocentric,
ReplyDeleteThank you for your erudite comments. I won't comment at this stage at least, not to prejudge possible alternative views on ancient rights enshrined by the Magna Carta.
Grahnlaw,
ReplyDeleteI am most probably the anti-EU campaigner you are referring to. The problem I have is this.
You are a blog that seeks to inform people about EU law.
I on another blog (Eurocentric's) have asked a question - What present UK practices would be permissable under the ECHR. You have failed to answer.
I will make it simple by choosing one.
If I am arrested and my DNA taken, would my DNA be kept on a database, if I am released without charge. Would this happen under the ECHR?
GW,
ReplyDeleteYou are right, you were the latest ant-EU campaigner I had seen lauding the merits of the Magna Carta.
My blog informs people about EU law (and politics) according to my own writing schedule, including some comments on readers' comments.
Outside that I give legal advice to my clients.
My initial feeling is that you would be best served by finding a specialist who already knows the different aspects (UK, EU, Council of Europe law), or be prepared for time consuming research of an area in flux.
Did you have any views on the two charters?
No, and I wouldn't understand it if I did. So, as you say, I shall look for my answers elsewhere.
ReplyDeleteI would suggest though that if you are going to deride Magna Carta and push your ECHR on to the general blogosphere that you warn us in advance that there is nothing here for the 'common people'
So now we arrive at the same position that we were in before. I am as uninformed by you as I was by the media you criticize.
Many thanks.
WG,
ReplyDeleteI am not deriding Magna Carta, an important historical document.
I am just interested to see the reasons for its alleged superiority in our age.
Grahnlaw is right when he says that each of the points you [wg] raise would require a lot of time and research individually.
ReplyDeleteHowever, as a general rule to the Human rights issues you raised (excluding the European Prosecuter) none of the things you mention are required under the ECHR (which is already part of UK law under the Human Rights Act 1998). The ECHR is independent from the EU, and in any case, the Lisbon Treaty would do more to ensure that Community law complies with the Convention (it was included probably intended to address tensions between the ECJ and the German Constitutional Court over the protect of rights in Community law as well).
On the question of whether they permit those points, again, that would take a lot of time and research to answer. However, I would point out that all of that is possible under the UK Constitution, so the rights of UK citizens aren't lessened or made less secure either by the ECHR or the Lisbon Treaty. Notably, the UK set up jury-free "Diplock courts" in NI during the Troubles.
(Trial with a jury has both advantages and disadvantages, which are vigorously debated on by legal experts in the UK, Ireland and elsewhere. While I'm a supporter of juries, I would be hesitent to hold them up as an inherently "better" form of trial).
I would also point out that the EU Charter that's linked here is not the ECHR (it's easy to find with google if you wish to read it). Also, the UK has an opt-out from this Charter.
Note: Just to be clear, I didn't mean by "(excluding the European Prosecuter)" that it would be required, just that it won't be decided by the ECHR and the Charter.
ReplyDeleteProbably unnecessary to bring that up, but just in case.