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Jamieson, Nigel J --- "Magna Carta in a handcart. From 1215 to 2015 and far beyond" [2015] OtaLawRw 8; (2015) 14 Otago LR

Last Updated: 26 May 2017

Magna Carta in a Handcart

^{From 1215 to 2015 and Far Beyond}

Nigel J Jamieson^*

The most efficient method of protecting ourselves against such errors [as the intrusion of untimely ideas] is that of reading our history backwards as well as forwards ...

F W Maitland: Domesday Book And Beyond

His method of juxtaposing two scenes, or two worlds, and leaving them to make their comment on each other ... what he himself called the contrapuntal method ... is the exact equivalent of his advocation of the Socratic, or maieutic method ...

M C Bradbrook: T S Eliot

What’s Magna Carta – a marvel, myth, or misapprehension?¹ For being a charter, it’s certainly a document, so when was it written? 1215, say the historians; the lawyers (for being lawyers) argue among themselves for

^{1216, 1217, 1225, and 1297, for in each of these years the Great Charter}

^{was confirmed, and this especially by Edward I’s proto-parliament of}

^{1297.2 In our own small way, we too are confirming Magna Carta today}

^{by celebrating its 800th anniversary in Otago. At the very least, we’re}

^{reconvening history!}

So what does it mean to celebrate Magna Carta? Perhaps, in the old feudal way, we could pay homage to its long and lively history of over

800 years. That wouldn’t prevent us from celebrating Magna Carta now as a lost cause. We are especially tempted to consider Magna Carta a lost cause today since so many moderns believe our law and technology in

2015 to be so much more up with the play than in 1215. Which will it be then, a wedding or a funeral for Magna Carta?³ A funeral is where we

^* As far as possible we have preserved the author ’s spoken format of this public lecture given on behalf of the Law Faculty of Otago University on

^{21st July 2015 to celebrate the 800th anniversary of Magna Carta.}

^{1 For truth being stranger than fiction, Magna Carta is bound to be both}

^{mythic and marvellous, and so most easily misunderstood; but in}

^{searching for the truth, what we mistake for myth (such as the Homeric}

^{tale of Troy when exposed to archaeological excavation) obliges us to}

^{reverse our most cherished opinions, when, on turning out to be a near}

^{miraculous revelation of hard fact, we are bound to realign the boundaries}

^{between the rules of evidence for science, history, and literature.}

^{2 Here, hidden behind a choice of dates for differing events competing for}

^{the same concept of the Great Charter of Liberties, lies a conflict of values}

^{between law and history, so differently perceived in fact, or conceived of}

^{in values, especially when evidenced between lawyers and historians as}

^{to what constitutes the real Magna Carta.}

^{3 “‘Funeral or wedding?’ asks the priest of a caller, with an equally smooth,}

^{vague smile.” For the relatively forgotten polemical philosophy of Vasili}

^{Rozanov (law graduate of Moscow University) see Renato Poggioli,}

^{Rozanov (Bowes & Bowes, London, 1962). Just as every wedding celebrates}

pay homage to a life now ended. A wedding is where we celebrate the added value gained from two single lives, in this case of Magna Carta the feudal and the constitutional, in their being conjoined together as one. It’s the task of the prophet-historian to weigh up the lost causes of history against her more promising gains. For the legal historian, the measure applied is that of justice under the law.

For this academic balancing act, with one hand we hold firmly onto justice as our objective, while with our other hand we weigh up law as the means of achieving this objective of justice. We shall apply this measure, which is the task of what we variously call jurisprudence or the science of law, to Magna Carta. We do so because Magna Carta purports to be a legal document in its endeavour to right wrongs, and so to seek justice by correcting injustice.

Throughout our celebration of Magna Carta, we shall keep a close eye on the handcart of history; since it’s been long established that without history there’s no jurisprudence.⁴ This science of law, in all its various shapes and forms, relies on learning from experience; taken as much from the historical past as towards the prophetic future. The full width of human experience that fills our handcart of history is sometimes described as the lawyer ’s extraversion; which it is for being the jurist’s far wider outlook than that of the lawyer in his looking for law.

The width of this world outlook requires jurists to study pretty nearly everything for their legal science of jurisprudence; without which they couldn’t hope to equate law with justice. At the anthropological level they study our manmade law as a means to justice. At the level of theological jurisprudence they study those absolutes or higher ends by which to evaluate our manmade law. Between these two levels, they exert almost every other flavour of jurisprudence – linguistic, literary, logical, legal, sociological, and even psychoanalytic jurisprudence – in their search for justice.⁵

the death of each spouse’s self-centredness to achieve the added value of two lives conjoined as one, so too the funeral celebrates the added value of this life when fulfilled by its bodily resurrection in the afterlife. As near as we can make it, therefore, our present collective celebration of Magna Carta ought to be both a wedding and a funeral, and so give rise to something more than their merely arithmetic sum of painful grief and joyful release.

⁴ “Sine historia caecum esse jurisprudentium” – to quote François Balduinus (1520–1573), jurist, historian, and Christian controversialist who sought to reunite the Roman Catholic and Reformed Churches.

⁵ These different flavours of jurisprudence don’t just radiate out in two dimensions, growing more and more distinct as they do so, from the lawyer ’s first extravert engagement in searching for justice under the law. They overlap, integrate, and disintegrate in other dimensions, posing interdisciplinary problems and paradoxes. Through analytic jurisprudence these increasingly sever, not only jurists from lawyers, but also jurists from jurists, and eventually lawyers from lawyers, until these scholars can be re-united through synthetic jurisprudence when

There are two other very different divisions of jurisprudential endeavour that are employed in this search for justice. The first is analytic jurisprudence, which relies on our developing a critical mind for the law. The second is synthetic or integrative jurisprudence, which requires a well-developed conscience by which to discern truth from falsity and justice from injustice. Keep a sharp lookout for each of these levels of concern or divisions of juristic labour in our celebration of Magna Carta – the heart-felt conscience, the critical mind, our purely human concerns, and yet the otherworldly absolutes by which we make our ultimate evaluations.

My first title for this lecture was simply Magna Carta, but you may never have looked into our handcart of legal history before. In any case Magna Carta is no simple thing; since those 800 years of Magna Carta from 1215 to 2015 provide more food for human thought than will fit back as neatly as they came out of history’s handcart. ⁶ For our better measure, therefore, open lectures are written; although I’ve never tried this until now; and so are meant to be read; but then, as for any document being read, how does the reader resurrect the living word out of the dead document?

Spoken and written words don’t always match our changing thought, and so frequently appear at legal loggerheads. Their differences can be reconciled only through a continuing spirit of open communication, so it’s the spirit and not the corpse of Magna Carta that we come here to celebrate today. But every open lecture, read as this one is, should open up what for others may still be closed books; so I’ll pray – ki a Ihu, te kororia te honore, that, i heke mai, te maunga tapu, ki te iwi – that our ears, minds, and hearts shall also, ki a Ihu, be opened to new life in our 800 year-old Magna Carta.

We don’t just celebrate the 800th anniversary of Magna Carta for falling on the 15th day of June 2015; otherwise you might think it already too late to celebrate Magna Carta today. In celebrating Magna Carta now we do so for all time, since it’s never too late to remind ourselves of Magna Carta. As the 18th century champion of freedom, Tom Paine, once wrote, “Those who expect the blessings of freedom, must, like men, undergo the fatigues of supporting it”.⁷ Since society off-loads more fatiguing

their earlier perceptions of justice are then re-conceived under the law.

^{6 Nothing once taken out, dusted off, and reappraised, ever fits back into}

^{the handcart of history the same way. Thus, in the light of the Second}

^{World War, the Great War to End All Wars must perforce be renamed and}

^{rethought of, perhaps as the First World War; although for reconsideration}

^{of the Treaty of Versailles (required as of a peace treaty at international}

^{law to end the Great War), the Second World War becomes no more than}

^{a continuation of the First World War (for which reason of Versailles, none}

^{dare require a peace treaty of Germany to conclude the Second World}

^{War); but instead of exacting reparations, but by a switch of legal values,}

^{proceed to trial and execute, retrospectively as Nazi War Criminals, those}

^{individuals then held responsible for the misconduct of their nation.}

^{7 The Crisis Papers: Number IV, Philadelphia, 12 September, 1777.}

responsibility onto women than men these days, there’s now more women being called as lawmen to safeguard the Charter.

So, thank you all for coming here today to make this celebration possible; and a special thankyou to my friends, family, colleagues and students, today and over the last 40 years, without whom I couldn’t conceive of giving this lecture. Since nothing is ever given these days without a disclaimer for whatever nuts and other anaphylactic agents get into the mix, then let’s be clear that none but I am responsible for whatever allergic reactions result from the following food-mix.

It took a like mind to that of Tom Paine, in this case that of the French lawyer, Charles-Louis Montesquieu, to identify and uphold The Spirit of the Laws; ⁸ without which spirit of freedom under the Charter we fall prey to despotism, instead of sustaining what we think ourselves to know for being democracy. We so often forget our need for freedom under the law as to become dispirited about democracy.

I don’t know about you, but I can get very dispirited about democracy; especially today when I experience our fast-diminishing freedom under the law. As the sociologist, Erich Fromm⁹ correctly pointed out, we fear freedom; and so we renege on the democratic responsibilities by which that freedom is secured. This kernel of democratic freedom in the medieval nutshell of Magna Carta in 1215 is needed to inspire our flagging responsibilities under Magna Carta in 2015.

We accordingly celebrate what for lawyers is often the fighting spirit of Magna Carta. We do so not by might, nor yet by power, lest the spirit of the law be quenched by our fleshly pursuit of black-letter law and heavy-handed enforcement of law and order. Besides, it’s not the bureaucratic body of black-letter law that gives the law it’s forcefulness in any democracy. It’s rather the spirit of freedom; which, for being the result of wise lawmaking, accordingly enlivens and liberates the inherent forcefulness of righteous law.¹⁰

Magna Carta Today

It’s this same spirit of freedom bringing life to the law that has imbued the Magna Carta for over 800 years; and now also, as we take this opportunity to proclaim our continuing life in the law, far beyond the present. It’s also this same model of wise lawmaking that still has the potential, now

⁸ De l’Esprit des Lois, 1748.

^{9 E Fromm, The Fear of Freedom (London, Routledge and Kegan Paul, 1942);}

^{E Fromm, The Sane Society (London, Routledge & Kegan Paul, 1956).}

^{10 For the most part, whether explicitly or implicitly, we are creatures of}

^{reason (by which we are enabled to distinguish our instances of unreason).}

^{A former generation of lawyers would have the grammatical nous to}

^{pick up on the function of this one word, the adverb ‘accordingly’; which}

^{once, as in section 5(j) of the now sadly repealed Acts Interpretation Act}

^{1924, converted a compound to a complex sentence; and so gave its}

^{explicitly restorative significance, now tragically overlooked, to all our}

^{New Zealand legislation.}

largely overlooked, to invigorate our nation of New Zealand today. So too, it’s this very same spirit of freedom under the law, which still travails on behalf of our nation; and it’s this same spirit of freedom, which we still profess to uphold today, even although the main body of black-letter law expressed by the original form of Magna Carta in 1215 has been largely deconstructed, dismembered, and dumped on by later, and not always workable legislation.

So, we either celebrate in the spirit; or else we miss the whole point of our coming together tonight to celebrate Magna Carta.¹¹ Ignorance of the law is no defence, some now say even no excuse under our Common Law; so, whether as lawyers or laypersons, we’ve all been called to serve as lawmen, here in the historic precincts of New Zealand’s once Wild South.

As lawmen to the law, we’re not going to bury Magna Carta still deeper under academic data. There’s no shortage of data in these days of informational overload – accentuated as this is by our decline in values. Our first objective is rather to refresh the present with the same sustaining spirit of freedom once embodied in and flowing from Magna Carta. Our hope is that Magna Carta 1215 will be breathed back into our faltering legal system for every new day of 2015 and far beyond.

It was by this resuscitory process of the law, known to all of us for centuries as simply “righting a wrong”, that brought the typically Anglo- Saxon model of Magna Carta back into legal play, when needed in 1215 to avert a monumental crisis of Norman-French government. This crisis began in 1066 with the wholesale slaughter of Anglo-Saxon citizenry, which then and for long afterwards took place during the Norman-French Conquest of England.¹²

No less than for any other of our unresolved catastrophes, however, this one’s still very much in vogue, as witness the increasing heresy that there was no real law in England before the Norman Conquest. We took the same view, completely at odds with anthropological jurisprudence, that Maori had no law here before Pakeha came to New Zealand. So it’s still up to us New Zealanders, whether to see ourselves as a folksy South Pacific nation with a relatively well-cemented and contented Anglo- Saxon-Maori past, or else as modeled on a brutal conquest by a socially

¹¹ Again, see E Fromm, To Have or to Be (London, Abacus, 1979) for the two means of existence (having or being) that compete for “the spirit of mankind”. The first extols material possessions and resources by which to compete against the human spirit with aggrandisement and aggression. Instead of focusing on things, the second means of existence employs collective experience and shared activity as a measure of heightening the human spirit in its quest for righteous productivity.

¹² Having won the battle against invading Vikings at Stamford Bridge, the Anglo-Saxon Harold (who had been tricked into swearing allegiance to William) was still fighting off Vikings at Hastings. Just as their name denotes, and their continued ruthlessness confirms, the Norman-French invaders were only second-third-and-fourth generation Norse Vikings who by ruthless invasion had plastered their Norse name on Normandy.

^{stiff-lipped, bureaucratically casehardened, and highly institutionalized}

^{Norman-French set of intruders.13}

In all this continuing crisis of Norman-French government for New Zealand, there’s a world of difference, between “revenging a wrong”, which can rarely be done without the rebellious spirit of revolution, and simply “righting a wrong” with the righteous spirit of restitution. Magna Carta signifies neither a revolt, nor a rebellion, nor a revolution. Magna Carta stands entirely for restorative justice.

We’re right to regard Magna Carta for being radical or fundamental; but we’re also far wrong, as a result of our own false values, to mistake what we mean by radical, for being revolutionary. Why ever would we want to be like the Ancient Greeks, who, until receiving the Gospel, were always in search of over-reaching novelties; instead of being more like the Hebrews, for whom history (with hindsight) and prophecy (with foresight) are flipsides of the same continuum of both worldly and otherworldly experience?

When distracted from the prime issues of lawmaking, we are drawn holus-bolus into the same spinning vortex of no more than the present moment; as we do by giving ourselves the sole credit for every little step of human progress. We do so, still like the Greeks, in so far as we presume, even for justice, freedom, and the law, that man alone can be his own measure. But there’s no eternal present; that’s exactly why we feel today the constantly spinning vortex; since for the choosing there’s only an eternal future. Man his own measure was never the measure for Magna Carta; nor shall we mistakenly try to apply it here to whatever justice, freedom, and forcefulness of law has been secured to us by 800 years of Magna Carta.

On the contrary, Magna Carta is nothing new, never was, and never will be.¹⁴ Like our ever-present search for justice, the search for Magna Carta can appear also never-ending; and yet at the same time until the end of time, forever unrequited. Like the Gospel of Jesus Christ, however, this search for justice under Magna Carta would be set in writing. Like the Gospel, it would be written and promulgated by the Church. And like the Gospel, it would hold promise; and continue, in the horizontal

¹³ In talking of Norman-French or Anglo-Saxon-Maori here, we’re dealing with types, in this case political types, and not, anymore than for Hebrews, Romans, Greeks, English, Scots, Irish, or Chinese, with races, peoples, or persons.

¹⁴ On this score of there being nothing new, the Common Law Court of Exchequer in 1130 was using the equivalent of today’s computers “at the Talies”, where in the Exchequer (descended from a Saxon original, and so called scaccario for its accounting process computed as on a “chess-board where the men are arranged in ranks and move by definite rules and restrictions”) the amounts computate for being recorded on nick-sticks or tallies: See Richard, Son of Nigel, De Necessarius Observantiis Scarccarii Dialogus (ed Charles Johnson, London, Thomas Nelson, 1950) xi–xlviii,

^7.

human plane, to sustain that promise of justice, in so far as that promise can be realised over time; and far beyond.

Using this same horizontally-extended and human time-line, as so also does the Gospel, Magna Carta would bring together hugely different races, kinds, classes, cultures, and all other sorts of people; and then go on to unite them in the vertical plane with their common purpose of searching for and sustaining justice. Like the Gospel, Magna Carta justice would be restorative, not recriminatory. Also, like the Gospel, its influence would spread far and wide – and this beyond every first perception of its ongoing conception.¹⁵ I’m not speaking just figuratively here – in terms of hard data, the Magna Carta is a Church document.¹⁶

Again like the Gospel, Magna Carta would be a peacemaker; and its proponents, however much misunderstood, would rarely if ever become revolutionary troublemakers. Not for nothing did Lord Chatham in the

18th century label Magna Carta, “the Bible of the English Constitution.” But that too for England was nothing new, since Alfred the Great included the Ten Commandments in his Compendium of Anglo-Saxon Laws for the 9th century.

For the English-speaking world, from the earliest of Anglo-Saxon times, and certainly for as long as the Common Law of England presumed the Gospel of Christianity to provide the law’s surest foundation, Magna Carta would be held high for being both a jurisprudential or ethical, as well as a legal standard. Magna Carta would not be in itself an absolute, but it would serve in the same way as the Ten Commandments, at first a unifying standard for Israel, yet also later for the seven separate and once warring Anglo-Saxon Kingdoms. It would do so just as, although in a very different way, the Twelve Tables would unite the plebs and patricians for Rome; or else as the Gospel, and in turn Te Tiriti, would serve to unite first the Confederation of Maori Tribes, as well as Maori, Pakeha, and nearly every other sort of serious Settler.

This high-flying standard is the same essence of Magna Carta’s timelessness; which is the same character that Maori ascribe to Te Tiriti as a living document, and the same character, although with infinitely

¹⁵ The co-ordinates of perception and conception are as often at critical odds as they need to be creatively identified. For example, to secure the reader ’s reception of any communication, the reader ’s perception needs first be accounted for and incorporated into the writer ’s conception. How otherwise could the author be assured of the reader ’s reception? There’s no point to any author conceiving what lies beyond the reader ’s perception.

¹⁶ To treat it as a purely political or legal document is to overlook its spiritual provenance and so also the sovereign basis of its authenticity; on the strength of which metaphysics there is no way by which any future republic or parliamentary protectorate can reconcile itself with the Great Charter ’s provisions. This is made evident by Cromwell’s carried-out proposal whereby “we shall cut off the king’s head with the crown on it.” For Magna Carta, the Protectorate is far more than an interregnum. Cromwell did the wrong thing, even although for the right reasons.

more depth, width, and intensity, which every Bible-believer ascribes to the Word of God. Are you with me, now in the fullest measure, or only as we judge a book by its cover; when, on no more than on that cover, we swear to tell the truth, the whole truth, and nothing but the truth, so help me God in any court of law?

By our continued celebration of Magna Carta, we are thus free to return to this theme of spiritual grace under the law, opposed as it so often is by both worldly power and fleshly might; and to put on record our present need to apply this same resuscitory kiss of life to so many of today’s so sadly disgraced statutes, regulations, and case decisions, that so perplex us in 2015. Our fight for justice today is no less than our forefathers fought the same spiritual battle won by Magna Carta in 1215.

As Lawyer Pleydell said to the Colonel in Scott’s Guy Mannering, “the battle is not to the strong”; but we’ll need theological jurisprudence, or at least metaphysics more than mere religiosity, to appreciate how the tide of battle so favours the weak; as once it did against all odds by bringing the impoverished and fifth removed son of Henry II to the English throne as the despotic King John; yet from which height of favoured power, John would forfeit his kingdom for the lawlessness perpetrated by him against his own freemen; and by which sovereign injustice the tide of battle under Magna Carta would turn back to favour those freemen who by their leader ’s lawlessness had become the weak.

If as lawmen we need more up-to-date specifics on this score, then look to our own lawlessness embodied in the Canterbury Earthquake Response and Recovery Act 2010; or look to the unforeseen consequences of disqualifying sentenced prisoners under the Electoral Amendment Act of the same year; or else to the all-too-clearly foreseen consequences of the New Zealand Public Health and Disability Act 2013. By now, with history moving faster than ever before, because the speed of light is surely slowing down, historians must rely on their students for keeping themselves up to date.¹⁷

The Metaphysics of Magna Carta

Dare we enter into the metaphysics, deeper still into the theology of Magna Carta? In more colloquial terms, what do we make of Magna Carta – either a call to battle or else a peace treaty? In short, what’s our concept of aut pax aut bellum (peace or war)? The Greeks, with their inherent taste for all-encompassing novelties would define war as the father of all things; no less than countless Romans, Jews, and Arabs¹⁸ have

¹⁷ My thanks here to Curtis Barnes for his research paper, “The Vanishing Act” (as yet unpublished) enquiring into the legal paradoxes and problems presented by these three pieces of legislation.

¹⁸ For the Romans, as said of them by the Caledonians, then read Tacitus, that “they make a wilderness and call it peace”. For the Jews read Jeremiah

6: 13-14 “... from the prophet even unto the priest every one dealeth falsely ... saying ‘Peace, peace,’ when there is no peace.” For the Arabs, read Derek Prince, The Key to the Middle East (Minnesota, Chosen Books,

^{decried so many of our peace proposals for being counterfeit solutions.}

If you’ve ever read Dorothy L Sayers on The Mind of the Maker,¹⁹ you’ll know that what we make of anything – of ourselves no less than of Magna Carta – is a really serious matter. It was Professor Peter Sim, Dean of Law in this Faculty from 1968-83, who first introduced me to Dorothy Sayers, better known as a crime-writer than as a metaphysician, for her writing of our need to have the mind of the maker. To understand anything at all, we need to be able to enter into the mind of the maker; and for being ourselves a people in the making, to understand very clearly the process of our own making.

For those of us yet to touch on theological jurisprudence, let’s remind ourselves that England’s Magna Carta in 1215, together with Scotland’s Declaration of Arbroath in 1320 (each of which later evinced the 1776

Declaration of American Independence), are clear examples of what it means to talk either of metaphysics (as first beginnings) or of theological jurisprudence (as final outcomes). In their most foundational sense all three of these documents are charters laying claim to first beginnings (as seen with hindsight) and final outcomes (as seen with foresight).

The same is true no less for New Zealand’s Treaty of Waitangi 1840, as so often once referred to as the Maori Magna Carta; and to which growing list of our own charters we would for various reasons unhesitatingly add the New Zealand Declaration of Independence of 1835, despite the sadness of its judicial dismissal in New Zealand by which to undercut the status of Te Tiriti at international law.

Like Magna Carta, Te Tiriti could never have been implemented without the Christian Gospel, whose 200th anniversary of being brought to New Zealand by Samuel Marsden in 1815 we now also celebrate this year in 2015. Strange, isn’t it – how divinity “shapes our ends, rough- hew them as we will.”²⁰

The Magna Carta restores justice more through its surgically precise use of metaphysics, than by morals or by law (both of which are relatively blunt instruments). We all think to know what is required of a medical physician in restoring health, but what is it to be a legislative metaphysician in restoring justice? As Lawyer Pleydell again says in Scott’s Guy Mannering “The Law is like laudanum. It’s easier for a quack to apply it than to learn to apply it like a real physician”.

Magna Carta begins by guaranteeing the rights and liberties of what would eventually become the Church of England – Ecclesia Anglicana,

2013) for the Arab rejection of UN and Israeli peace proposals; together with Bernard Lewis, The Arabs in History (Oxford, OUP, 1993).

^{19 (London, Methuen, 1941). There is now an online pdf version.}

^{20 This rough-hewn paragraph requires correction; for which correction I am}

^{indebted to Diccon Sim. Christmas Day 1814, when Marsden preached}

^{the Gospel (as translated by Ruatara sentence by sentence) in the Bay of}

^{Islands at Oihi Bay in 1814, became the official date for celebrating the}

^{bicentenary in 2014.}

no less, as explicitly referred to as such in the Great Charter. We’ve lost almost all sight of this part played by the Gospel in our own legal system and constitutional heritage; but remember there’s no set age for becoming geriatric; and that as we rapidly decline into our collective state of legal dementia, we ourselves take the credit for, and youthfully stake our lives on New Zealand being an entirely self-made nation.

That’s another heresy completely at odds with Magna Carta. It’s also at odds with our New Zealand National Anthem; and likewise with the oaths so many of us once made to be admitted as barristers and solicitors to the legal profession. So if we’re here to celebrate Magna Carta, let’s at least do so openly and honestly in recognising the huge component of Church History without which this nation would have been no nation, and most certainly no nation as we think ourselves to have known it. We have only to read England’s first history book, Bede’s Ecclesiastical History of the English People²¹ to appreciate how without the Church, it would be impossible for us to formulate any future concept of England, and in turn any concept of New Zealand as the nation we now are.

Once again accordingly, for knowing the mind of the maker as a lawmaker, we too become makers of legislation; the “highest human enterprise”, as Helvetius described lawmaking; but we are never really the creators of what we make. For that we need the divine breath, both literally and figuratively, the divine breath of inspiration. So, don’t we all look for inspiration, whether in law, science, literature, or the arts – or else get bogged down in the petty fatigue that comes from doing no more than will sustain the minimum mechanics of life?

Once trapped in the mechanics of everyday survival we’re bound to find it hard to give more than a token recognition in 2015 to celebrating any 800-year-old Magna Carta. The Ancient Hebrews were big on celebrating Passovers: the Ancient Greeks were big on funeral orations; and it is from one of these funeral orations, that of Pericles as recorded by Thucydides, that we borrow our concept of democracy;²² but as we also know from a film-title, which I needn’t repeat, there’s nothing much bigger than a big Greek wedding. Magna Carta was a Passover. Let’s hope we’re still wedded to its righteous celebration.

Nevertheless, what it takes to celebrate Magna Carta is a tough order; since us academics have been brought up to mistake intellectual critique for the height of joyful celebration; by which “the work of a good critic” [and I’m quoting here from a very good critic] “will appear cold and impersonal [as it most certainly will to those] in search of a stimulus”.

We’re apt to forget, as we do of Rome’s Twelve Tables, and of Sinai’s

²¹ We do no dishonour here either to the ancients or to the classics, whether those of Bede, Scott, or other writers, by thinking them to need citations; which in any case would be as much misleading as leading for being afflicted by today’s diverse and various editions.

²² See K R Popper, The Open Society and Its Enemies (London, Routledge & Kegan Paul, 1945) Vol 1, Ch 10 III.

Ten Commandments, that great laws are never less in law than for their being also great literature, from which resultant clarity and credibility these laws both get and give a great deal of their legal stimulus. In the same way, we can overlook the same literary greatness evoked by the skin-thin transparency of Magna Carta for thinking it to be so quickly sewn-up from a long-dead sheep back in 1215.

Right now we’ve got the same huge problems in moving from authoritative hardcopy to merely a virtual image of the law on a screen; and so we overlook the cause of our being so depressed today by the huge yet hidden amounts of our screen-bound but no less hide-bound legislation. Run your head up against the law these days, however minimally, and you’ve run your head, if not hard up against Behemoth, then straight into the open jaws of Leviathan.

For those of us who must wonder where we’re heading in this celebration of Magna Carta – if not surely back to Behemoth, or into the wide-open jaws of Leviathan – we still believe ourselves to be introducing Magna Carta’s first chapter; and it is because this pivotal first chapter is now so seldom if ever dealt with in legal, political, or constitutional history, that we focus on the consequences of its oversight from 1215 to

^2015.

The Great Charter of Liberties as Drafted

This Great Charter of Liberties as drafted in 1215 is too often regarded, both by lawyers and historians, to have been cobbled together in haste; but to any draftsman taught to respond to instructions as if they were a dock-brief (that’s from the prisoner in the dock to whatever lawyer there and then takes the case) there are always deadlines. These deadlines are no less critical for lectures and commentaries than for legislation and litigation; but as any writer no less reader ought to pick from both the form and substance of Magna Carta, this Great Charter of 1215 was conceived of with deep feeling, made only after intensely committed thought and prayer; and birthed in the face of utmost personal risk and at the cost of much collective pain, suffering, and hard labour.

Whether in this Wild South, as much as in any other portion of our still prevailing Wild West; and when exacted from poets, pioneers, prophets, and other lawmen – think here of Ethel Benjamin and of James K Baxter for being different kinds of lawmen – this sort of pain and suffering is always going to be the price exacted for incorporating true creativity. You’d think of this divine inspiration coming upon writers with a woop and a woosh; but they’re not like the angels, created-beings, but only made-from-dust beings; which is the very source that puts us all at risk of thinking ourselves self-made.

On the contrary, creativity comes to us, often never more directly than at second-hand, third-hand, or even if given directly from some fatherly hand, yet is experienced by all of us often only through a faint, fragile, and so easily overlooked breath of life-giving inspiration. And as said before, creativity comes at a cost, because all the dross, the rust, and the

^{scum of brute survival, needs first be stripped away to feel this creative}

^{breath – the very same breath that is still breathing life into Magna Carta.}

So, here we are, still forced to admit that our searching on this furthest side of the world instead of logistically at Runnymede, for that same creative legal stimulus that will evoke our joyful celebration of the Magna Carta today, is going to remain one of the most difficult, if not also treacherous of tasks, for our being carried into the cold and impersonal realm of analytic jurisprudence. So let’s try literary jurisprudence instead.

Are we then still to adopt that “cold and impersonal” critique, which the academic, M C Bradbrook,²³ extolled and required of T S Eliot’s work? After all, Eliot was to Miss Bradbrook, as to many other academics of his own time, one of the foremost critics as well as the leading poet of his age. This, after all, was the same T S Eliot, who, after writing (in somewhat trivial fashion as many then thought) of his own exceedingly domestic Waste Land, had turned down the far bigger picture of George Orwell’s Animal Farm as being then politically incorrect (as it then was) for publication. This is still a huge issue, but then what little of Magna Carta is left in our New Zealand Statute Book possibly remains there only because of being still politically correct for publication.

“Bide a wee,” as we’d say in any Scots University, since a lot more hangs on this formula for “cold and impersonal” criticism than first appears; since by the Education Act 1989, many of us here are appointed to be the “the critics and conscience of society”. So too, as a matter of both anthropological and sociological jurisprudence you’ll have picked up how difficult this “cold and impersonal” critical task is for anyone of Scots, Welsh, and/or Irish forebears; who, however unsuccessfully, has been brought up, no doubt like even Miss Bradbrook, to feign being the “cold and impersonal” stiff-lipped Anglo-Academic – one so very

²³ M C Bradbrook, T S Eliot (London, Longmans, Green & Co, 1950).

^{Because creativity and criticism (compare legislative composition and its}

^{interpretation) are correlative components of the same communicative}

^{process; and because Eliot (as both poet and critic) is so perturbed}

^{(both for himself and his correlative tasks) by the closeness of this same}

^{relationship between creativity and criticism, a thorough jurisprudential}

^{investigation would be valuable of Eliot’s metaphysics by which, the task}

^{of the critic, as seen by Eliot, is to “reopen old communications” and to}

^{“bring back the poet to life – the great, the perennial task of criticism”; so}

^{too if as Eliot prescribes for the poetic process “a continual self-sacrifice,}

^{a continual extinction of personality”, then there is nothing either of poet}

^{(or parliament) to be brought back to life, except the poem (or statute).}

^{Likewise, “in matters of great importance the critic must not coerce and}

^{he must not make judgements of better or worse”. To borrow Bradbrook’s}

^{words, “it is not the business of the critic to stimulate”, since “the}

^{emotional critic is almost necessarily a bad critic”. Nevertheless for being}

^{both poet and critic (and so immune from any legal doctrine of separation}

^{by which to keep these creative and critical tasks apart) Eliot may be more}

^{the critic than creator as a poet since he relies (so differently from other}

^{poets but so heavily for himself) on the forcefulness of understatement.}

^{different from the Auld Edinboro’ Identities, say of Cockburn, Erskine,}

^{Adam Smith, or Wee Davie Hume.}

Bradbrook’s model of a “cold and impersonal” Anglo-Academic (of which you’re not to make more of than I intend) is a very different sort of scholar, as you may well imagine, from the passionately freedom-loving intellectual that came out to this Otago Free Church Settlement back in

1847. To find out whether we still passionately belong to that freedom- loving society we need to find a way around this heart-versus-mind conundrum in scholarship for the sake of understanding Magna Carta, which is no doubt why we’ve been given this tall order tonight at Otago.

For the sake of this tall order then, it may be better to take a layman’s look, rather than a lawyer ’s look at Magna Carta. After all, none but a layman, certainly not any more fully informed scholar, would think of covering 800 years of Magna Carta in a single lecture – unless of course by full immersion.

A Layman’s Look at Magna Carta

Here then is a layman’s more passionate look at the same subject. After all, in being made for freemen (no offence meant to lawyers here) the Magna Carta was made for laymen, and not for lawyers. Besides, Magna Carta couldn’t have been made, far less conceived, by those who were then no more than “cold and impersonal” critics of the times in which they lived. Magna Carta lives on today thanks to the purity of its passion for righteous freedom.

Magna Carta could have been made only by legal idealists – people who are passionate by nature, but made also cautious by experience in their enthusiasm for the law. That’s the true professional. So, we have, here tonight, not only 800 years to celebrate, far less whatever happened on the 15th day of June, 1215, but also an entire hereafter. As a layman, I like the word “hereafter”, don’t you – even although it’s now been excommunicated from its proper place in legal speech and writing? That’s scary – in so far as for the lack of that word, we ourselves may have no hereafter!

In any case, as for both lawyers and laymen, we’re not really talking about the rights of Magna Carta, or at least not as we think to know of rights today; and this as a result of so many of our basic privileges having been done to death through rights-only-legislation. We’re not even talking about liberties – although such talk is not completely out of order for that word having been so much used in Magna Carta.

There, at Runnymede, by the Thames [near where our present Queen often resides at Windsor], and on the literally hallowed ground there taken up by the Church of England on behalf of the Charter, the already existing rights and liberties therein mentioned were used, perhaps with an excess of caution; since what we know now for being this Great Charter of Liberties of 1215 was drawn in the form of a legal grant or conveyance.

Accordingly, by legal sleight-of-hand (since I’m speaking of 1215

when the art of conveyancing was still in its infancy, and not as now in decrepitude) this legal grant or conveyance was made to come, as legally it had to come from the ruling monarch; yet in this case, from a notoriously unreliable monarch, one whose mere confirmation alone of these pre-existing rights and liberties for which he held royal responsibility could not in any way be relied on.

Consequently, and more by legal fiction and face-saver than by any done deed at Runnymede, Bad King John (badly brought-up as the favourite fifth son of the Lionheart, no less) is being deviously dressed- up (or is it dressed-down) by his church-adversaries as a willing donor to the nation of what, for the most part by way of existing rights and liberties, is an already established legal order. But remember this, that in dealing now with Bad King John and his bunch of henchmen, this infant Church of England is dealing with a pack of ravenous wolves.

Now, unless you’re a national chess champion, as was Professor Richard Sutton, Dean of this Faculty from 1981–85 and 98–99, you might easily overlook the scriptural admonition that, when amongst wolves, we’re all meant to be as innocent as doves and as cunning as serpents. Accordingly, it’s no surprise to us lay persons that the best-trained lawyers must always appear so devious; and so, as in Magna Carta, to grant again, as if from scratch or de novo, what most assuredly has already been granted.

Whether for being a feudal, or constitutional document, Magna Carta is content to restore an already firmly established and clearly understood concept of justice. By exercising their right of diffidatio to renounce their fealty, the barons comply to the letter with feudal law. This masquerade (as it may seem to a layman) of restoring justice under Magna Carta does not require any revolt or rebellion by the barons (as this concept is so often extolled in history books). We can have no further problem, either feudal or democratic, with Magna Carta. By reason of its added value from living in both worlds, Magna Carta gets the best of both a declining feudal, and an increasingly modern world.

So likewise, in terms of both theological and psychoanalytic jurisprudence (not that there’s always much to pick between them) the pretended novelties of 1215 are not unlike those of our own legal fictions and assumed principles of democracy in 2015. These already-existing rights and liberties of 1215 have been so well established by earlier monarchs in earlier charters, that they are by now a face-saving stratagem to smooth the way for Magna Carta being accepted by a notoriously despotic, tyrannical, and completely untrustworthy king.

It’s a settled principle of legislative drafting that every statute, just like every charter, must have a legislative scheme, even although this may never be given either political or legal statement in the statute or charter. It was this legislative scheme of Magna Carta – using a more authoritative and openly strategic level of restorative justice to checkmate King John’s subversive deviousness – that was so aptly and openly employed by Archbishop Stephen Langton in his brilliant drafting of Magna Carta.

It would also be a Magna Carta into which Langton, as draftsman for both Church and State, would take the opportunity to slip several much-needed novelties. It’s no accident that almost all of these pressing novelties brutally needed to constrain King John’s despotic deviousness, were omitted from every subsequent Confirmation of the Charter.

In 1215, the law very well knew, and as often declared itself to be bound by its own limitations. When faced with a monarch like Bad King John, something like Magna Carta could make the law so clear by doing no more than righting the wrongs of his despotic rule, and thus operating surgically as an instrument of restorative justice.

This once inspired state of legal humility went on to outlast the Victorians, after which, in the name of our own self-satisfied notion of human progress, the law would be merely assumed to affirm and abide within its own self-determined capabilities. In short, the law as we now know it, especially as the Rule of Law, would very quickly defeat its own purpose by holding itself out to be an absolute; but by so doing completely lose the sense and spirit of Magna Carta. ²⁴

On the Jurisprudential Scale

In our becoming so macho-mesmerized by the strength, might, and the power of our self-made law, we’ve lost almost all of our legislative authority – the authority that was once derived simply from the grace given to righteous proclamation. We’ve lost too that basic trust without which responsive obedience to the law is bound to languish and grow apathetic in any professed democracy. And likewise we’ve lost the deep and profoundly metaphysical respect engendered for our so-called Rule of Law when that respect can no longer be underpinned and upheld by absolute, rather than by just relative and merely contingent values.

The linguistic evidence for this decline in values is given voice by ourselves as well as by others all around us. Once the social consensus

²⁴ For a more detailed account of current controversies see David H Griffiths, “Defining the ‘Secular ’ in the New Zealand Bill of Rights Era: Some Cases and Controversies” [2011] OtaLawRw 4; (2011) 12 Otago LR 497. Query: For secularism being so much its own brand of religion, is it really possible for a professedly secular State to be sure of itself in its claim to respect freedom of thought, conscience, and religion? The Soviets tried it, always reinforcing their aspirations with the most idealistic of enacted constitutions (as well as with prison camps, gulags, deportation, joblessness, statelessness, and the non-person). So, is Eliot right, that, as a matter of metaphysics, you not only can, but also should divorce the poet from his poem, the legislator from his legislation, the critic from his emotions, the countryman from his country, and the creator from his creation? What, for Eliot by way of psychoanalytic jurisprudence, pivots on this stoic separation, impersonal alienation, and domestic divorce between creativity and criticism? On the other hand, what constitutes our common endeavour to ensure good law and good government, not just despite, but also because of our division of labour and separation of powers among legislature, judiciary, and executive?

for anything, no matter how trivial, would be expressed for something being “all right”, later shortened to “right”; then it would be “all good”, abbreviated to “good”; and later still it would become just “okay”. Now when most world languages testify to an ongoing declension of values, and when our own next-most-recent buzzword of “absolutely” has been superseded by an inevitable apathy, this present consensus we now describe to ourselves for being, well, just merely ‘cool’.

Magna Carta Today in 2015

So what’s the prognosis for Magna Carta today in 2015? When the philosopher Stanley Fish visited our Law Faculty a year or two back his advice was simply this: “Do your job; don’t do anybody else’s job; and don’t let them do yours!” That’s very much the same transparent commonsense that explains the success of Magna Carta. Now, if the same principle had been levied against Mad King George, as the Church had levied Magna Carta against Bad King John, then there would have been no need for the Revolt of the American Colonies on the strength of Magna Carta, and quite likely no French Revolution thereafter, and still a whale-oiled economy for New Zealand (for better or worse) as a result of there having been no American Civil War that blew the whalers out of the water.

Our laws have never been so transparently inaccessible as now, not only to laymen, lawyers, and judges, but also alike to law-teachers and law-students. We can Google up all our laws (so they say) at the press of a button; but without going to court, and not always even then, can we be made to see more than what they just might be taken to mean. Once again the religiosity of securing formal accessibility to the law has triumphed over our more basic need for substantive accessibility.

Our constitutional law (birthed more traditionally in the private conscience than in any public institution) has sadly been reversed through the rise of administrative law, and the consequent submergence of both into public law, thus giving the false impression that institutions are more important than people. But if we may extrapolate the phrase with which Lord Mansfield tried to turn English Law into Scots Law, it’s also in the making of our democracy that “the ties of conscience upon an upright mind” have had more input from lone and solitary individuals than from any heavy-handed and increasingly bureaucratic institutions.

Under our Common Law system, whether of England or Scotland where caution and experience militate against any written constitution, it has always been the privilege of the very ordinary folk, to become the most extraordinary of persons; as of Jenny Geddes who, to rebut the English form of worship enforced on Scotland, threw the stool she sat on at the offending preacher ’s head in Edinburgh, and so must be credited with having introduced Presbyterian church government to Otago two centuries later; or of the wealthy John Hampden of Buckinghamshire who refused to pay illegally exacted ship-money to Charles the First; or, as here in New Zealand, where Paul Fitzgerald, the so-called “junior

public servant” took our then Prime Minister Muldoon to court to show that the Bill of Rights of 1688–89²⁵ still applies to our prime-ministers no less than to all of us ordinary folk in New Zealand.

The list of such very ordinary heroes of our constitutional law is limitless, from long before John Bunyan and Tom Paine in their fighting for freedom of expression, to well after Kate Sheppard and Ethel Benjamin for women’s liberation. It’s not by physical strength, financial might, nor yet by established power, that our Common Law Constitution has been forged. Here yet again, is another argument for a layperson’s approach to Magna Carta – coupled with that democratic responsibility for us all to act as lawmen in New Zealand.

Legal System at a Crossroads

So then what does it mean, “Nulli vendemus ... to none will we sell, to none will we deny or delay, right or justice”, as chapter 40 of Magna Carta still purports to provide?²⁶ We’ve tried the Soviet system of legislating by slogan for “tomorrow’s schools”, at the cost of closing down or aggravating most of our yesterday’s schools; or for “user pays” so long as non-users ultimately pay the same as, or more than users; or for no-fault compensation, provided we’re all then held to be at fault; or likewise for the “open market” however unfair that can be to small businesses and fair-trading; and now we hang our hat on an unknown “Trans-Pacific Partnership” when we can’t even regulate our Trans-Tasman Relations.

It’s more than bad news to most laymen, but we’re trying hard to confront the heart-versus-mind controversy that underlies almost every piece of our do-gooding legislation. Instead of having our laws more righteously modeled on the tried, tested, and truly restorative justice of Magna Carta, we’re going to hell in history’s handcart (if you’ll pardon a layman’s expression) along a legislative highway paved with no more than good intentions.

So too as we proudly think to live in a self-made technologically advanced society of 2015, and when we re-commission our libraries as IT buildings to accord with the ongoing revolution in our cultural and

²⁵ The different dates, on which lawyers and historians assume a differing stance, denote not just the differently computed Julian and Gregorian calendars, but also whether we rely more on court conventions and parliamentary sessions, under which an Act of Parliament came into force on the first day of the session, in this case 13th February 1688 (Old Style), in which it was passed (although by then 16th December 1689 (New Style)).

²⁶ Once again from The Waverley Novels, Scott paraphrases the meaning of Chapter 40 by putting these words into the mouth of James I of England (and VI of Scotland) on his being offered money to purchase a favourable outcome on a charge of treason: “What is that you dare say to us? Sell our justice! – Sell our mercy! – And we a crowned King, sworn to do justice to our subjects in the gate, and responsible for our stewardship to Him that is over all kings?” Cf The Fortunes of Nigel Ch XXXI.

educational values, this proposition “to none will we sell justice” rings (if at all, since cash registers are out and computers may be down) with a sound only to add to our own most intense discomfiture.

The school-bell rings, if at all, then only very faintly at the way in which this technology can debilitate our capacity for serious thought; the judicial gavel kicks in a good deal earlier in the courts at our lack of substantive certainty in the law; while police sirens shriek in the streets at the increasing failure of our technology to provide adequate justice, whether in the schools, in the courts, or in the streets. Do you know the statistic for how many lawyers there are now who would rather not be lawyers? I’m not telling you – the figure is “commercially sensitive”.

Unless for our being Bible-believers, our return to the bedrock of Magna Carta doesn’t seem likely. I know that’s bad news to most of us living in an Age of Almost Total Unbelief, where nothing is certain and everything is contingent. But it’s as if what were once the Magna Carta virtues – in education, intellectual integrity and communal caring rather than the brute struggle for survival amid competing scholars; in business, the virtues of fealty, fairness, straightforwardness, and loyalty; in social relations, chivalry, chastity, and charity; in personal relations, courtesy, sympathy, and civility – these virtues were at least clearly understood for being virtues, however short of their fulfillment in Magna Carta society; since which time, however, they have reversed their roles²⁷ for being portrayed now as wimpish vices.

Don’t mistake me: I’m speaking now, neither for nor against any one of these values; for instance, like John Bunyan, I think civility has been more often exercised as a vice than a virtue. Here, I’m merely exercising my layman’s right of free expression, if necessary under the New Zealand Bill of Rights Act, to point out, but no more than descriptively, the reversal of those historic values; and at the same time, to point out the extent to which the historic vices, such as those of prostitution, abortion, and homosexuality, have been legalized, and as often in the legislative process promoted as if they were virtues.²⁸

In the light of Magna Carta, this is not a Chicken-Licken argument any more than is the motto of our Law Society to let justice be done lest the heavens fall. The collapse will be catastrophic; and under the Rule of Law for that being our professed, but barely believed-in measure for all society, will take us back down to ground, if not to lower than ground level. Our spirit of the law in New Zealand, whether recognised or not for what it is in a secular setting, is one – now listen carefully – is one that by our Rule of Law determines every unforeseen consequence no

²⁷ This is no new view. Among both earlier and later accounts of virtues and vices reversing their roles, see Bernard de Mandeville, The Fable of the Bees or The Grumbling Hive (1705).

²⁸ Again see here Bernard de Mandeville, A Modest Defence of Public Stews (1724) in which he advocates the legalisation of prostitution, for which public housing would be provided and maintained under governmental administration.

^{less than being also the one that determines every consequence foreseen.}

This spiritual collapse, which some of you may decry for being mythic jurisprudence, is bound, for being so completely at odds with Magna Carta, to emanate from our increasingly secular situation; from all blame of which we so readily excuse ourselves, since we claim to be so surprised, shocked, and thus rendered guiltless by our unforeseen consequences. Until we’ve had time to realise that unforeseen consequences afford governments no excuse, I won’t go on to shock you with Lawyer Naomi Klein’s Shock Doctrine,²⁹ whereby unrighteous governments have come, for their own purposes, to rely on catastrophes and other apparently unforeseen consequences through which, like Bad King John, they will be enabled to do their own biding.

Magna Carta as a Resolution Process

How do we rectify this wrongful situation? As a resolution process, the long overlooked Chapter 1 of Magna Carta proclaims the existing freedom of the Church; with all her existing rights entire, and liberties inviolate; including that freedom of election to high office in the English Church already acknowledged and granted by earlier charter; and from which established position Magna Carta then goes on to make of itself an explicit grant to God of the task of reconciliation before it.

We might not like bothering God with what we believe is entirely our own and none of His business, but it’s a fundamental principle of documentary evidence (and not just statutory interpretation) that every word of any document counts; so let’s reconsider again the way in which chapter 1 of Magna Carta begins – in primis concessisse Deo – by which, having made an explicit grant or conveyance to God, we’ve dedicated the governmental task to Him required of ourselves as Magna Carta’s lawmen.

“In God We Trust”, proclaimed by the USA for its official motto in 1889, is modeled on Magna Carta. This first and original grant or conveyance under Magna Carta is not just from King John to the freemen of England, but also, in terms of concessisse Deo, expresses a grant to the Lord of Hosts Himself. To Believers it betokens a personal relationship between John and Jesus, however weird this may seem to unbelieving moderns; and this relationship, confirmed by the protocols for so many of our subsequent coronations, still tenuously persists, despite being interrupted by Parliament under Cromwell and his Roundheads, by which, pretending to be a divine Protectorate, Parliament would usurp the royal sovereignty by killing off the king.

No doubt this is the same head-of-state relationship, which, for then becoming completely secular, both USA and NZ seek to absolve themselves by the apparently irrevocable separation of Church from State. It may then take a Republic of New Zealand to complete the

²⁹ (Allen Lane, London, 2007) since then, under different imprints, editions,

^{and versions.}

deal, although not without exchanging our Constitutional Monarch for Presidential Power, and by opening out old wounds between Maori and Pakeha by expunging the concept of the Crown from Common Law by which to uphold the Maori Magna Carta of Te Tiriti.

In token terms of Magna Carta 1215, however, the task of statesmanship or good government in 2015 still remains preternaturally suspended between the miraculous and the mundane, between the secular and the divine. Once vested in the sovereign monarch, and as then upheld by the universities, but next lost to parliament and the judges, eventually, the task of good government has by now passed on from parliament and the judges back to New Zealand’s very much hidden and under- the-table executive.³⁰ It’s a downhill slide for almost all the democracies, and we’re not far short of hitting ourselves hardest against the inevitable outcome and all coming to bits at the bottom. Lee Harris, in his book of the same name, although written with a different focus, calls it The Suicide of Reason.³¹

This much bigger, almost global issue of today was not an issue back in

^{1215. It was then none the less daring to demand of the royal prerogative}

^{as delegated by God to the sovereign King of England, that he be the one}

^{to pass on this self-same state of freedom, as designated by the Charter ’s}

^{remaining 62 chapters, of mostly already-existing but much-abused}

^{liberties, to all freemen of the English kingdom. On his having sealed}

^{the Charter, we are persuaded by the chroniclers of his time32 that the}

^{tyrannical Bad King John then threw a fit, fell to the floor of his pavilion}

^{on the field of Runnymede, where, by literally “chewing the carpet” he}

^{gave rise to the expression which we so strongly associate with similar}

^{despots and dictators.}

Broken Bones But Where’s the Meat in Them?

So much for our very barebones introduction to Magna Carta – we’ve broken the bones of it, as the old Scots saying goes, but we haven’t yet begun to suck out the marrow. Nevertheless, “These are the times that try

³⁰ On the one hand there are ouster clauses to prevent judicial review of the executive; and on the other hand judicial lawmaking sidesteps or overrules the legislature’s ouster clauses. Once, when faced with such unbridled power, Magna Carta could make the law so clear when righting wrongs and thus operate surgically as an instrument of restorative justice. Now we either have both legislature and judiciary hamstrung by the executive or else a confusion rather than separation of powers.

^{31 (New York, Basic Books, 2007).}

^{32 This long-established view has been more recently opened to correction}

^{for which see Theodore F T Plucknett, Taswell-Langmead’s English}

^{Constitutional History (London, Sweet & Maxwell, 1960). In so many very}

^{different ways the chroniclers of the time were so very strongly convinced}

^{of the badness of John, that we shall leave the long-established for being}

^{still very much the layman’s view, which in any case is more celebratory}

^{of the charter than are today’s reformist views, which in any case don’t}

^{sit well with all else we know of John’s character.}

men’s souls,” as once before Tom Paine so rightly wrote;³³ and, believe it or not, but in 2015 with the speed of light slowing down as fast as time is speeding up, ours is possibly a far more trying time for our whole planet than just for us ever before.

Of course we are never relieved of the responsibility for the times into which we are born; since the consequences of our discharging or not discharging our personal responsibility for those times accounts for the times that follow. And since Pope Innocent III would abrogate Magna Carta in favour of Bad King John, Protestant theologians would point, either rightly or wrongly, to Magna Carta and more than its 37 continued confirmations as the start of the English Reformation.

In default of this irresponsible King John, the still infant Church of England is temporarily taking over the Crown’s sovereign responsibility for law and order. Nevertheless, the English Church (although at first opposed by the Papal See) is exercising this royal responsibility not directly in its own right, but instead by bringing royalty to heel, thus forcibly extracting from the still acknowledged ruler, at least his tacit admission as to the true and existing state of the nation.

This is an issue that is vital to the legal status, theological authority, and practical workability of Magna Carta. King John purported to abrogate the charter on the grounds that Magna Carta was void for the duress and compulsion under which it had been exacted from him; and this claim was in turn upheld by Pope Innocent III who claimed feudal lordship over the whole of England, putting it under a Papal Interdict whereby no one could be married, buried, or ministered to by the Church.

So what do we now make of Magna Carta? As already said, the

^{800 year-old history of Magna Carta is much more a history of ideas}

^{(concerning values) than it is of facts and figures (concerning events).}

^{The two vastly different kinds of history (and in turn the teaching of}

^{that history) invoke often deviously different techniques (as different as}

^{any cram school can be from Socratic maieutic and Christian parable).}

Although exaggerating a truth in order to tell it, Anglo-Saxon society was then far more egalitarian, especially within its respective classes, than we give it credit from our own now much less egalitarian society in New Zealand today. Nevertheless, the earlier problem of big barons of Norman-French extraction with big bailiwicks in England (dealt with under the Charter) and even of the King himself setting the worst of examples in bringing ill-favour to his own subjects, has reverted back, yet once again, to being a bigger issue than before in New Zealand today.

This is still very much our own New Zealand problem with big business barons and capitalist entrepreneurs from overseas buying up their bailiwicks of land, businesses, and now even law-firms, in New Zealand. Meanwhile the names of our own big businessmen, well-known sportsmen, chief executives, professional and other prominent people,

³³ The Crisis Papers: The Last Crisis: Number XV, Philadelphia, 19th April,

^1783.

are withheld in many courts that don’t extend the same privilege of privacy to our serfs and medieval villeins of today.

When they close the courts in this way for the sake of quasi-important people, because that’s what happens when enforcing this process of hidden as against open justice, the problems we face are bound to present themselves, as surely as they should have been foreseen by every proponent of Magna Carta. “To none will we trade justice...” specifically outlaws all such trading for reputation as much as for fame and fortune, but still we trade off justice by extending court privileges to the rich and famous. We misconceive free trade for being fair trade.

It’s true that much is often made by both lawyers and historians against Magna Carta; being made more particularly by those modernists who would belittle it for being ancient, obsolete, feudal, perhaps even for being a foreign or imperial transplant, and offensive to their modernist, progressive, or merely post-colonial values. They say, for example, that Magna Carta is only circumstantial, to be explained merely by the tough times when England was presided over by an Avignon King, a Pope who had carried his mind to the highest point yet ever made of papal power and suzerainty, and a piqued Archbishop of Canterbury, who had been stood down from his office by the King. They say likewise, that the Magna Carta only ever applied to freemen, that Magna Carta is a feudally bound-up document, whereas by now we are a modernist, and highly technological society.

So, to take just one point of these many: how many freemen were there in England under Bad King John’s reign? How many freemen indeed, if Bad King John was withholding from them their recognised rights as freemen until Magna Carta could bring King John’s despotic rule to justice? The answer in both law and logic is no freemen whatsoever – any more than these so-called freemen could pass onto the serf and villein classes whatever responsibilities they held as freemen until redeemed under the Charter.

Likewise, we all forget that feudal society relied as much on the most intimate of personal relationships as on the most abstract of institutional relationships. Modern machine-run life so often sacrifices the intimacy of personal relationships to the dry mechanics of institutional relationships.

For example, an employer, although these days a tax-collector like every other businessman and banker, pays what then remains of an employee’s salary into a bank; and often won’t pay his or her salary without the employee engaging a banker, whereas less than a generation ago, at least the employer ’s clerk would seek out the employee, a little thing perhaps, but one acknowledging more of a personal than just an institutional relationship between employer and employee, and without the mechanised intervention of any tax-collecting banker – from whom then it is that the employee, as like as not through a machine, draws what remains of his or her salary.

So too, we’re now more of a class-ridden-society than ever before in

^{New Zealand, since welfare instead of employment can make a serf}

out of a freeman; and this no different from our need to debunk the difference between what we think to make of the Middle Ages and our own more Modern Times³⁴. Yet, we too still have our homeless; our hungry and ill-fed; our peasants both rural and urban; our street-sleepers and street-sweepers; our queues of unemployed, whether credentialed or un-credentialed, many of whom are often literally begging for jobs; together with families, whether professional class, student-class, or otherwise, in which both spouses, parents, and even grandparents may need to work, either to pay off huge student loans or otherwise just to keep their own heads, and those of their families, above the increasingly stagnant water level.

Such fierce and often violent distinctions, whether of rank, place, class, wealth, values, intellect, morals, education, and even character, are not only inimical to democracy. They also obstruct every due process under the Rule of Law under which all are equal, none are privileged whether by rank or office, and justice is as freely available to one as to all. These, for better or worse, are the pragmatics on which democracies depend, more especially that due process bids us distinguish clearly between politics and law.

This is the same Rule of Law, whose first conception so many lawyers and legal historians have tracked back at least to Magna Carta. Without this Rule of Law, the great divide between law and politics would soon become an urban landfill, and eventually an abandoned swamp. In our ongoing search for justice, this is the same jurisprudential distinction made earlier between personal perception and impersonal conception. It is this same distinction, which is so needful for ascertaining the true purposes of Magna Carta, and to which this celebratory lecture is bound, both explicitly and implicitly, always to enforce.

The Perpetual Present

The perpetual present can be seen as an instant of no duration in the already timeless history of Magna Carta. But we’ll often do no more than tinker with restorative justice, without realising that nothing less will do than for our former Magna Carta to be born again into our own ongoing present. That’s pretty hard to do now, after we have demeaned both Magna Carta and the Bill of Rights, together with so much else of our legal heritage, ill-advisedly by burying their dismembered limbs deep within our own Imperial Acts Application Act 1984. For no valid, invalid, or otherwise ascertainable reason that anyone can find, we call this deconstructive process “repatriation”. That’s about as bad a schoolboy howler as mistaking William the Conqueror (instead of Edward the First) for being our English Justinian.

For example, with the help of Magna Carta would academics really

^{see themselves any differently than they are for being the “critics and}

³⁴ Norman F Cantor, Inventing the Middle Ages (New York, William Morrow,

^1991).

conscience of society” as required by their statutory responsibilities to act as such; although these legal requirements are more than a little tucked away in section 162, subsection (4), paragraph (a), and subparagraphs (i) to (v) of the Education Act 1989? In short, do today’s statutes work, and so come close to fulfilling their legislatively appointed function, as the Church would have felt itself duty bound to enquire into for the sake of society in Magna Carta days?

That’s a hard question. But because ours is an age in which we profess over and over again to cherish freedom, let’s compare our Education Act’s definition of “academic freedom” where the responsibility for being the “critics and conscience of society” is required of all academic staff and students.

Section 161 (2) of our Education Act 1989 defines this same “academic freedom” to be “the freedom of academic staff and students, within the law, to question and test received wisdom, to put forward new ideas and to state controversial or unpopular opinions”. I would hope that’s just what we’re doing tonight in this Law Faculty.

Ignorance of the law, as said before, is no defence, so we presume ourselves to have been warned, on either student admission or staff appointment to a Scots founded University such as this, that our second- to-chief purpose in life (after our first purpose to glorify God and to enjoy him forever) is to learn how to be the “critic and conscience of society” and to uphold the concept of “academic freedom” as defined by our Education Act?

We all know from the medieval history of the universities that the universities were first conceived as children of the Church. Yet that doesn’t sanctify the universities any more than the Church has sometimes been so unsanctified. Nevertheless, as children of the Church, the medieval universities would come to inherit and exercise the intellectual freedom as well as responsibility of their parent Church in their serving as the “critic and conscience of society”. And that’s just exactly what the Holy Christian Church was doing 800 years ago, way back in 1215, when its most celebrated draftsman, Archbishop Stephen Langton, drew up Magna Carta.

All the same it’s hard for each of us to remember exactly what it is that we’re now called and bound over by statutory authority to do day-by-day in the name of “academic freedom”. Just recently, for example, I’ve been asked to sign an employment clause, operative as it claims to be for all time, against what I say and what I do that would infringe against the commercial sensitivity of the university that employs me.

That’s all very fine, since I have no trouble at all with what I believe to be my employer ’s permissible intention; so after serious thought, and relying on our mutual responsibilities under the Education Act, I’ve seen fit to sign this confidentiality clause, which can hardly get in the way of our mutual responsibilities under the Education Act to uphold “academic freedom” in our acting together as “the critic and conscience of society”; or else if otherwise, then for contravening the statute under which we

^{both operate, the confidentiality clause is void for being ultra vires.}

Because pretty much nearly everything is factored into jurisprudence, there’s so much left unsaid about Magna Carta that must remain forever in legal history’s already sorely overloaded handcart. Thank you for your patience, your most considerate attention, and no doubt also for your manifold forbearance by entertaining someone, of whom the Scots would say, holds “stiff opinions”. I know it’s late; but you’re welcome to ask whatever questions you will, as best a Scotch campaigner can answer for the English Magna Carta.