Abstracts

Magna Carta in Lawless Times:
Its First Three Centuries and the Rule of Law
David J. Seipp
Boston University School of Law

King John repudiated Magna Carta soon after he was forced to grant it, and the Pope annulled it. It could easily have been forgotten. We celebrate Magna Carta today because some of its words survived during eight long centuries, were remembered, revived, and given new meaning. What saved Magna Carta were the bureaucratic processes of the king's law courts and his chancery that were in place when it was first sealed and persisted afterwards. In the text of Magna Carta, it is notable that the king's courts of law were not viewed as yet another example of the king's oppression, but were instead depicted as a positive, popular institution that the king had to be forced to promise to keep available to his subjects.

What fourteenth- and fifteenth century English lawyers knew as Magna Carta was not the document to which John affixed his seal in 1215. They knew a version issued by John's grandson Edward I in 1297. The powerful enforcement mechanism drafted by the barons to compel the king to keep his promises was gone. New clauses were added and old clauses were dropped. All were renumbered. But what has become the heart of Magna Carta remained.

The fourteenth and fifteenth centuries were a lawless age. Powerful magnates, descendants and successors of the barons who had forced John to sign Magna Carta, recruited private armies who wore their livery, threatened their opponents, and interfered with and intimidated the king's courts of law. This interference with judicial proceedings was called "maintenance" and was one of the grave recurring problems for England's central governance. Those whom Chief Justice Fortescue called "over-mighty subjects" regarded themselves and anyone they protected as "above the law." Lawyers and judges, unable to guarantee that their rules would prevail in society at large, turned inward to develop their professional institutions and to refine and elaborate their doctrines. They instructed new law students through readings on the most important statutes underpinning their legal system, always beginning with Magna Carta.

1215 and All That: A Modern Villein’s Guide to Magna Carta, Incorporating All That You Need to Know about Wapentakes, Halberjet,  Scutage, Socage, Burgage, the Troublesome Relations of Girard d’Athée, Kiddles and Much, Much More 
Mr Philip Dykes
Senior Counsel

Magna Carta has a mythic status. It has been treated with exceeding reverence by generations of lawyers and politicians. It is thought by many to represent the one true source of an Englishman’s liberties and freedoms under the law.

However, it was not meant to be a bill of rights. On the contrary, it was meant to address the interests and concerns of the taipans of the day, the barons, who held their lands directly from King John. They felt-and had very good reason to do so-that the King had overstepped the mark when exercising his supreme feudal rights and privileges in the later years of his exceedingly dismal reign (1199-1216).

This paper attempts to explain the content of Magna Carta with reference to the particular interests of the chief players in 1215: the King, the barons and the Church. It attempts to make sense of some of some of its more obscure and recondite provisions. It also seeks to show that even the more famous clauses of the charter that are treasured today originally catered to privileged interests, not the common man

The paper also shows that Magna Carta was a complete failure as a peace settlement and how, within months, there was civil war leading to a French prince being acclaimed the new King of England in London in the aftermath of a long-forgotten foreign invasion.

Finally, the paper explains how the charter survived to achieve later constitutional significance only by reason of voluntary re-issues after the death of King John, first by William Marshall, Earl of Pembroke, in the name of a very young Henry III, and later by the adult King Henry and his successors before, much changed, it became an Act of Parliament in 1297.

Common law constitutional rights and their significance for Hong Kong
Professor Christopher F Forsyth
University of Cambridge

The origins of the idea of common law rights that are specially protected by the courts will be explored. The argument will be advanced that such constitutional rights are consistent with relatively 'thin' approaches to the rule of law provided the courts do not insist on vindicating such rights even in the face of clear legislative provision. It will be demonstrated that being inherent in the common law such rights have a particular importance in HK.

Empire, Magna Carta and the Judicial Committee of the Privy Council
Catharine MacMillan
The University of Reading

Nineteenth-century England saw a resurgence of interest in Magna Carta.  It was also a time period of enormous expansion in the British Empire.  This was an empire with a form of imperial court in the Judicial Committee of the Privy Council. The impact of the jurisprudence of the Privy Council has not been studied to great extent and this paper addresses one aspect of this jurisprudence. It considers some of the ways in which Magna Carta, and notably the rule of law, came before the Privy Council and how the Privy Council considered these issues.  The examination reveals not only contemporary understandings of the operation of Magna Carta as a source of law within the British Empire but also the nature of the Privy Council as a judicial body.

 Hong Kong’s Autonomy under “One Country, Two Systems”:
Could Magna Carta be Relevant?
Surya Deva and Jojo Mo
City University of Hong Kong

Although only a few clauses of the original 1215 Magna Carta have survived the test of time and are in inforce in the United Kingdom today, the principles that underpinned the Magna Carta 800 years ago remain equally relevant in the 21st century. This paper will try to crystallise some of these principles from the text of Magna Carta of 1215 and 1225 and asses their relevance in controlling the power of state institutions generally as well as specifically in the context of Hong Kong.

In particular, the authors will investigate whether the Magna Carta principles could be invoked by Hong Kong courts to control the powers of the Standing Committee of the National People’s Congress (NPCSC), which in some ways resemble the almost absolute powers enjoyed by the British Crown in the past. We will argue that the NPCSC’s powers under the Basic Law are not absolute and that it will be critical for the effective functioning of the “one country, two systems” that some mechanisms are found to limit the powers of the NPCSC.

The Magna Carta as a legal scripture: the significance of reformist concepts for Hong Kong
Dr Sherif Elgebeily
University of Hong Kong

The vast majority of the Magna Carta, it can be argued, is no longer relevant; of the original sixty-three clauses, only three remain part of English Law or relevant to Hong Kong under the Basic Law. In this sense, the Magna Carta holds its unique importance not as a result of the continued impact of its content - which originally enshrined such superannuated laws such as 'scutage' and 'socage' taxations - but rather as a result of one ground-breaking concept, which has been nurtured, pruned and shaped by legal scholars and practitioners throughout the centuries since its conclusion in 1215: that the power of the Monarch was subject to legally-binding, fundamental principles - in short, a nation’s ruler would no longer be above the law.

Hong Kong Basic Law rights such as access to the courts in art. 35, private property rights in arts. 6 and 105, and freedom from arbitrary detention in art. 28 directly owe much to the surviving clauses of the Magna Carta; however, other components of the rule of law, such as equality before the law (art. 25), supremacy of the law (art. 39), right to privacy (art. 30) and freedom of expression (art. 27), are due exclusively to centuries of legal interpretation of the underlying purposes and principles of the Magna Carta across jurisdictions.

Through the lens of Hong Kong's Basic Law, my presentation will therefore highlight examples of how the interpretation of the Magna Carta - in spite of the substantive redundancy of almost all of its clauses - has allowed the document's core principles to both acquire conceptual longevity and an organically evolutional trajectory that has seen them woven into the fabric of democracies and constitutions around the world. Particularly in light of significant political movements in Hong Kong, the Middle East and other regions, the importance of these principles continue to have ever more significance for citizen rights and the restraint of arbitrary exercise of powers by States, from East to West.

Rediscovering Magna Carta in Hong Kong Constitutional Law
Eric Ip
The Chinese University of Hong Kong

The immense relevance of Magna Carta to contemporary Hong Kong has been underestimated, if not completely overlooked, by lawyers and non-lawyers alike. This presentation demonstrates that, notwithstanding the resumption of Chinese sovereignty, there remain numerous traces of Magna Carta in the constitutional law of this Chinese special administrative region, and that there are many parallels between the political foundations of Magna Carta and those of the Basic Law, such that the latter can be seen as a kind of autochthonous Magna Carta of Hong Kong. Consequently, this presentation shows that rediscovering the spirit of Magna Carta can provide us with a more comprehensive understanding of constitutional evolution in Hong Kong, for the actual rules and standards that define government power and specify the rights of citizens in that jurisdiction exceed and precede the Basic Law in terms of antiquity and richness.

Considering rule of law rhetoric in Hong Kong’s constitutional development
Stuart Hargreaves
The Chinese University of Hong Kong

Hong Kongers often describe the ‘rule of law’ as a central characteristic of their society, elevating it to near mythic status. It has long been used as a rhetorical device to support various policies – both before and after 1997, local governments in Hong Kong used rhetoric about the ‘rule of law’ as justification for their preferred pace and mode of democratic development.  And so it was during the 2014 Occupy Central protests.  However, in 2014 both pan-democrats and pro-establishment groups appeared to accept an extremely thin version of the ‘rule of law’, conflating it merely with following the law – a vision of the rule of law inconsistent with the role it has played in Hong Kong’s democratic development, and inconsistent with its meaning in common law legal systems. Moreover, this paper argues that while both sides may have had short-term reason during Occupy Central to accept or promote such an empty interpretation, it was nonetheless a long-term strategic error.  For the pan-democrats, it meant the steady erosion of public support for the protests and may limit future support for their goals by removing civil disobedience as an acceptable political tactic.  For the pro-establishment groups, it may have removed the ‘rule of law’ as a political device which can be – as in the past – deployed to satisfy popular demands for democratic representation without direction election of the Chief Executive.