tag:theconversation.com,2011:/africa/topics/magna-carta-14344/articles
Magna Carta – The Conversation
2023-10-30T19:11:06Z
tag:theconversation.com,2011:article/214847
2023-10-30T19:11:06Z
2023-10-30T19:11:06Z
Some people think income tax is illegal. It’s pseudolaw, and it’s damaging the legal system
<p>Judges have described it as “gibberish”, “obvious nonsense”, “largely incoherent, if not incomprehensible” and “gobbledygook”. </p>
<p>It involves grand claims like “Magna Carta means you do not need to pay your mortgage”, or “the introduction of decimal currency means income tax is illegal”. </p>
<p>It’s the strange and growing phenomenon of pseudolaw.</p>
<p>Pseudolaw looks a bit like law. It uses legal texts and sounds kind of like something a lawyer might say. But it does not follow normal legal rules. </p>
<p>So where did it come from, and why it is so worrisome? </p>
<h2>Where did pseudolaw come from?</h2>
<p>Pseudolaw is not new to Australia. </p>
<p>For almost 40 years one vexatious litigant has repeatedly argued <a href="https://qldbusinesspropertylawyers.com.au/blog/serial-litigant-barred-50th-time-banknote-argument/">Australian bank notes violate the Constitution</a>. </p>
<p>Nevertheless, the COVID pandemic has seen a <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4561504">dramatic increase</a> in pseudolaw claims and a shift in their nature.</p>
<p>During this period the de facto emblem of the pseudolegal Sovereign Citizen movement – the <a href="https://theconversation.com/what-is-the-australian-merchant-navy-flag-the-red-ensign-and-why-do-anti-government-groups-use-it-170270">Australia Red Ensign flag</a> – became the defining symbol of anti-government protests.</p>
<p>In our <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4561504">recent study</a> on the phenomenon, we found pseduolaw is being influenced by the US sovereign citizen movement.</p>
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Read more:
<a href="https://theconversation.com/what-is-the-australian-merchant-navy-flag-the-red-ensign-and-why-do-anti-government-groups-use-it-170270">What is the Australian merchant navy flag, the red ensign? And why do anti-government groups use it?</a>
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<h2>What’s the sovereign citizen movement?</h2>
<p>The sovereign citizen movement emerged in the US in the 1990s out of several overlapping extremist groups. </p>
<p>Members are largely connected by a shared antagonism towards government and a convoluted and conspiratorial interpretation of the law. </p>
<p>While there are significant variations in beliefs and ideologies among members, in our study, we found they make several common arguments.</p>
<p>Sovereign citizens tend to believe <a href="https://theconversation.com/living-people-who-are-the-sovereign-citizens-or-sovcits-and-why-do-they-believe-they-have-immunity-from-the-law-143438">all laws are forms of contract</a>. </p>
<p>Because they did not agree to wear a mask, obtain a driver’s licence, or pay council rates (for example), they are not bound by those laws. </p>
<p>To many in the movement, the government is a corporation and therefore whatever laws it claims to make are illegitimate. </p>
<p>They also believe they can gain freedom by rejecting the corrupt authority of the state. </p>
<p>This leads them to tear up their birth certificates, refuse state ID like drivers’ licences, or enrolment in government programs. They see themselves as free sovereigns or natural living beings. </p>
<p>In confrontations with police and arguments in court they will recite phrases such as “<a href="https://www.news.com.au/technology/motoring/on-the-road/an-act-is-not-a-law-sovereign-citizen-gets-roasted-by-quickthinking-cop/news-story/a1f40a672d37011ce64d02d40a4a1122">I am a living person</a>” or “<a href="https://www.9news.com.au/national/what-is-a-sovereign-citizen-movement-beliefs-explainer/968ac369-a7bd-4a6d-9465-7bc2a1d13bdf">I do not consent</a>”, which they believe provide legal immunity. </p>
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Read more:
<a href="https://theconversation.com/who-are-the-original-sovereigns-who-were-camped-out-at-old-parliament-house-and-what-are-their-aims-174694">Who are the 'Original Sovereigns' who were camped out at Old Parliament House and what are their aims?</a>
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<p>Some may write their <a href="https://www.adl.org/sites/default/files/documents/assets/pdf/combating-hate/Sovereign-Citizen-Documentary-Identifiers.pdf">name in capital letters</a> or with dashes, colons, or semi-colons between letters or words to distinguish their natural self from the fictitious legal construct. </p>
<p>Some even create their own <a href="https://www.news.com.au/finance/business/banking/28-days-to-vacate-former-one-nation-senator-attempts-to-use-common-law-to-take-back-farm/news-story/7ec8443678c6738dfc417edf495b3a15">common law sheriffs</a> or courts to enforce their laws.</p>
<p>But not only do these arguments not work in court, these beliefs are having an increasingly detrimental impact on our legal system. </p>
<h2>Influence in courts and beyond</h2>
<p>Our study sought to map the impact of these claims in Australian and New Zealand courts. </p>
<p>We found hundreds of examples, with increasing evidence that Magistrates Courts are becoming <a href="https://www.abc.net.au/news/2023-05-08/nsw-magistrates-report-sharp-rise-in-sovereign-citizen-cases/102285772">overwhelmed</a> by them.</p>
<p>For example, in a <a href="https://www.queenslandjudgments.com.au/caselaw/qdc/2010/451">Queensland case</a>, Mr Van der Hoorn appealed his conviction for driving without a valid license, registration, or insurance. </p>
<p>He claimed to be “Sovereign Freeman JOHAN” who was appearing as agent on behalf of and as the “owner of the created fictions known as JOHAN HENDRICK VAN DEN HOORN and JOHN HENRY VAN DEN HOORN, being created fictions fraudulently owned and controlled by legal fictions”. </p>
<p>In New Zealand, Mr Niwa sought to avoid his tax liabilities by arguing the debt was owed by an entirely different person. </p>
<p><a href="http://www.nzlii.org/nz/cases/NZHC/2019/853.html">He explained there were two people involved</a>, “Donald-James of the family Niwa” and “DONALD NIWA (TM)”. Mr Niwa declined to “accept the role of the defendant” and therefore argued he should not have to pay. </p>
<p>Neither Mr Niwa nor Mr Van der Hoorn succeeded. Neither did the hundreds of other applicants we found. </p>
<p>These sovereign citizen style arguments are not only appearing in courtrooms. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/556467/original/file-20231029-21-9wvlbl.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A close up shot of an ancient document, reading 'Magna Carta of King John, AD 1215'" src="https://images.theconversation.com/files/556467/original/file-20231029-21-9wvlbl.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/556467/original/file-20231029-21-9wvlbl.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/556467/original/file-20231029-21-9wvlbl.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/556467/original/file-20231029-21-9wvlbl.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/556467/original/file-20231029-21-9wvlbl.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/556467/original/file-20231029-21-9wvlbl.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/556467/original/file-20231029-21-9wvlbl.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Pseudolegal claims often cite the more than 800 year-old Magna Carta.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/magna-carta-libertatum-eighthundred-yearold-english-287752943">Shutterstock</a></span>
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<p><a href="https://www.theguardian.com/australia-news/2023/oct/03/indigenous-australian-native-title-claim-sovereign-citizen-conspiracies">One recent study</a> found Aboriginal individuals and communities dissatisfied with Native Title processes have begun employing these arguments. </p>
<p>Individuals armed with a false sense of pseudolegal justice are also <a href="https://www.abc.net.au/news/2023-04-04/anti-vax-group-my-place-plan-to-influence-your-local-council/102166182">targeting council</a>, and <a href="https://www.abc.net.au/news/2023-10-05/united-nations-voice-conspiracy-misinformation-spread-revealed/102932852">spread baseless claims</a> about the Voice to Parliament referendum. </p>
<h2>Why does this matter?</h2>
<p>The rise of sovereign citizen arguments is concerning. </p>
<p>Pseudolaw has a tendency to transform routine and relatively simple legal issues into much more complex and harmful ones that can hurt litigants, their families, and friends, and the legal system at large. </p>
<p>Litigants waste time and money and forego the opportunity to obtain capable legal representation. </p>
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<strong>
Read more:
<a href="https://theconversation.com/no-thats-not-the-law-the-danger-of-using-pseudolegal-arguments-against-covid-19-rules-170630">No, that's not the law: the danger of using pseudolegal arguments against COVID-19 rules</a>
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<p>It also creates opportunities for scammers and charlatans to benefit from a lack of knowledge about law and government. </p>
<p>These legal arguments also represent the tip of the spear. Sovereign citizens are, occasionally, <a href="https://www.abc.net.au/news/2022-12-16/qld-police-shooting-gareth-nathaniel-stacey-train-conspiracy/101778102">violent</a>.</p>
<h2>How can we respond?</h2>
<p>The response to pseudolaw must occur at multiple levels of society. </p>
<p>Courts can reject abusive submissions, and law societies can make clear that some people are simply selling snake oil. But legal responses are limited. </p>
<p>In fact, difficult and expensive legal systems contribute to the growth of pseudolaw. Legal education is costly. Information is behind paywalls. Representation is pricey. </p>
<p>Pseudolaw grew in response to COVID and public health orders that threatened people’s jobs. It grows in response to and as result of unrest, dissatisfaction, and inequality. </p>
<p>Where law and government seems elitist and inaccessible, pseudolaw thrives. </p>
<p>It is free online. You can find it in community groups that provide support and encouragement. That support comes swaddled in misinformation and disinformation. </p>
<p>We need to take pseudolaw seriously. Making the law more accessible and improving civics education is a first step. But the solution will require social, political and economic support as well as legal responses.</p><img src="https://counter.theconversation.com/content/214847/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Joe McIntyre receives funding from the Law Foundation of South Australia to examine the rise of pseudolaw in South Australia.</span></em></p><p class="fine-print"><em><span>Harry Hobbs and Stephen Young do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>
Pseudolaw looks a bit like law. It uses legal texts and sounds like something a lawyer might say. But it does not follow normal legal rules. So where did it come from, and why it is so worrisome?
Harry Hobbs, Associate professor, University of Technology Sydney
Joe McIntyre, Associate Professor of Law, University of South Australia
Stephen Young, Senior Lecturer, University of Otago
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/207862
2023-07-11T15:59:32Z
2023-07-11T15:59:32Z
Scotland’s medieval Declaration of Arbroath is too important for cherry picking by politicians
<blockquote>
<p>As long as a hundred of us remain alive, never will we on any conditions be subjected to the lordship of the English. It is in truth not for glory, nor riches, nor honours that we are fighting, but for freedom alone, which no honest man gives up but with life itself.</p>
<p><em>From <a href="https://cotr.ac.uk/viewer/?group=declaration&blocks=34:transcription;">The Declaration of Arbroath</a></em></p>
</blockquote>
<p>Medieval Scotland’s most iconic document, <a href="http://www.rps.ac.uk/trans/1320/4/1">the Declaration of Arbroath</a>, recently went on display at the <a href="https://www.nms.ac.uk/exhibitions-events/exhibitions/national-museum-of-scotland/declaration-of-arbroath/">National Museum of Scotland</a> in Edinburgh for the <a href="https://www.msn.com/en-gb/travel/news/declaration-of-arbroath-to-go-on-show-for-first-time-in-18-years/ar-AA1c2251">first time in 18 years</a>.</p>
<p>The Declaration is a letter written in 1320 to Pope John XII by various Scottish aristocrats and “the whole community of the realm of Scotland”. At this time, the papacy did not recognise Robert Bruce as the true king of Scotland.</p>
<p>The letter was a sophisticated diplomatic response by the Scots against claims from English kings that <a href="https://theconversation.com/these-medieval-battles-prove-britains-nations-have-never-been-truly-separate-159556">they were the ultimate sovereigns of Scotland</a>. The declaration is both a masterful piece of propaganda and one of the earliest statements of national sovereignty found in Europe.</p>
<p>It is a keystone of Scottish history, similar to <a href="https://magnacartaresearch.org/">Magna Carta in England</a> which held that the English king was subject to the law of the land. The declaration has not been as widely (even comically) <a href="https://theconversation.com/from-fascism-to-parking-tickets-some-odd-magna-carta-moments-38807">misunderstood as Magna Carta</a> but it is still a contested piece of medieval history in today’s politics.</p>
<p>Conservative MSP Murdo Fraser claimed a few years ago that Scots who opposed independence should <a href="https://www.scotsman.com/heritage-and-retro/heritage/why-scottish-unionists-can-celebrate-the-declaration-of-arbroath-murdo-fraser-2532137">celebrate the Declaration of Arbroath</a>. This is part of a <a href="https://britishidentities.wordpress.com/2017/04/06/william-wallace-unionist-nationalist-or-both/">tradition within Scottish unionism</a> that sees Scotland’s victory in the <a href="https://www.historic-uk.com/HistoryUK/HistoryofScotland/The-AngloScottish-Wars-or-Wars-of-Scottish-Independence/#:%7E:text=The%20Anglo%2DScottish%20Wars%20were,the%20years%20of%201296%20%E2%80%93%201346.">wars of the early 14th century</a> as necessary to bringing about the perfect <a href="https://www.heraldscotland.com/news/18358125.struan-stevenson-declaration-arbroath-laid-foundation-stone-treaty-union-1707/">union</a> between the two countries in 1707.</p>
<p>SNP MP Joanna Cherry recently praised the document as “a statement of the <a href="https://www.thenational.scot/politics/23562534.union-odds-declaration-arbroath/">sovereignty of the Scottish people</a>”. For Cherry, this statement of popular sovereignty means the Declaration of Arbroath is incompatible with the “peculiarly English doctrine of parliamentary sovereignty”. This refers to the tradition that places parliament at the centre of English political history.</p>
<figure class="align-center ">
<img alt="A very fragile old document, the Declaration of Arbroath, on faded yellowed paper." src="https://images.theconversation.com/files/536341/original/file-20230707-29-apk50j.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/536341/original/file-20230707-29-apk50j.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=633&fit=crop&dpr=1 600w, https://images.theconversation.com/files/536341/original/file-20230707-29-apk50j.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=633&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/536341/original/file-20230707-29-apk50j.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=633&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/536341/original/file-20230707-29-apk50j.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=796&fit=crop&dpr=1 754w, https://images.theconversation.com/files/536341/original/file-20230707-29-apk50j.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=796&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/536341/original/file-20230707-29-apk50j.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=796&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">The 700-year-old Declaration of Arbroath is rarely displayed because of its extremely fragile state.</span>
<span class="attribution"><a class="source" href="https://en.wikipedia.org/wiki/Declaration_of_Arbroath#/media/File:Declaration_of_arbroath.jpg">National Archives of Scotland</a>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span>
</figcaption>
</figure>
<h2>Why the declaration really matters</h2>
<p>Both unionist and nationalist views of the declaration tell us very little about the declaration itself. They are a reminder that the past is a <a href="https://theconversation.com/king-charles-iii-coronation-what-the-controversy-over-an-ancient-stone-tells-us-about-historical-symbols-in-the-modern-age-202171">powerful weapon in political arguments</a>. </p>
<p>We must remember that the declaration’s authors had little desire to see an Anglo-Scottish union centuries later, nor had a high opinion of popular sovereignty. Democracy too was an alien concept at this time. This was a document written for the elites, by the elites.</p>
<p>Indeed, there was also no concept of <a href="https://www.parliament.uk/site-information/glossary/parliamentary-sovereignty/">parliamentary sovereignty</a> in England at this time. It was not until the 17th century that such doctrines emerged in response to the absolute political power of the <a href="https://www.royal.uk/stuarts">Stuart kings</a> (ironically, in this context, a family who were initially kings of Scotland).</p>
<p>The Declaration of Arbroath was not a law or a treaty but a letter to the pope. It had no legal weight but was a statement of political intent, and a product of political circumstances. </p>
<p>Robert I’s <a href="https://www.nrscotland.gov.uk/files/research/NRS_DoA_English_booklet_700_Spreads_WEB.pdf">position was unstable</a> at this time. An <a href="http://www.rps.ac.uk/trans/1318/23">act of parliament in 1318</a> tried to control rumours that were spreading questioning his claim to be king.</p>
<p>When the document was written, Robert’s brother Edward had been killed in Ireland two years earlier and the king had no sons to take over if he died. His grip on power was more precarious than he realised. A few months after the declaration was sent to the pope, several individuals were executed or imprisoned for <a href="https://dspace.stir.ac.uk/handle/1893/2106">conspiracy to assassinate the king</a>.</p>
<p>The declaration really gives us an insight into the development of written agreements to ensure loyalty and support. At this time, nobles across Europe, including Scotland, were beginning to write down the terms of their alliances and keep identical copies. The Declaration of Arbroath was an early example of this.</p>
<p>Earlier studies of the declaration concluded that nobles were encouraged to <a href="https://scottishhistorysociety.com/the-declaration-of-arbroath/#:%7E:text=The%2520deposition%2520clause%253A%2520%25E2%2580%2598Yet%2520if%2520he%2520%2528King%2520Robert%2529,who%2520was%2520able%2520to%2520defend%2520us%2520our%2520king.%25E2%2580%2599">send their seals to Newbattle</a>, just south of Edinburgh, where initial drafts were made. The final copy was drawn up at the <a href="https://www.nms.ac.uk/explore-our-collections/stories/scottish-history-and-archaeology/an-essential-guide-to-the-declaration-of-arbroath/">king’s writing office in Arbroath Abbey</a>.</p>
<p>The nobles may have given their seals to the document, and it may have claimed to be from the whole community of Scotland, but this was very much written for the king’s own ends. </p>
<p>In this respect it was the opposite of Magna Carta, in which the English king was forced to accept a document in his name forced upon him by his barons. Robert I was a king who forced his barons to accept a document in their own name.</p>
<p>The fact that the document was produced to serve the immediate interests of the king should not diminish its importance. The Declaration of Arbroath is a fascinating document because it tells us so much about how politics and ideas of sovereignty played out in the 14th century.</p>
<p>It drew on <a href="https://www.nms.ac.uk/explore-our-collections/stories/scottish-history-and-archaeology/an-essential-guide-to-the-declaration-of-arbroath/">biblical and classical precedents</a>, developing a story about the kingdom’s origins. The origin myth given in the declaration may seem like fanciful fiction today, but it resonated with the sensibilities of the time. In the 14th century, myths about history were valuable political weapons and, even though those myths have changed, they still remain powerful today.</p>
<p>Events of the intervening seven centuries have allowed people with opposing political ideas to call on it for their own purposes. Yet, history is too important to allow certain bits to be <a href="https://bkw488.wixsite.com/highmedievalpast/post/reclaiming-history">cherry picked for modern day purposes</a>. It is only when considered in their immediate historical context that documents like the Declaration of Arbroath, can be understood.</p>
<p>The fact that there are many ways of viewing this fascinating document remind us that the historian’s job is never-ending.</p><img src="https://counter.theconversation.com/content/207862/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Gordon McKelvie does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>
Both unionists and nationalists cite this keystone document of Scottish history.
Gordon McKelvie, Senior Lecturer in History, University of Winchester
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/207384
2023-06-12T17:44:26Z
2023-06-12T17:44:26Z
A jury of ex-presidents? No, but Trump’s fate will be decided by 12 citizen peers, in a hallowed tradition of US democracy
<figure><img src="https://images.theconversation.com/files/531374/original/file-20230612-270005-vuhapd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A judge bench and a jury box are seen in a U.S. courthouse in Cleveland, Ohio.</span> <span class="attribution"><a class="source" href="https://media.gettyimages.com/id/564093673/photo/east-courtroom-judge-bench-and-jury-box-howard-m-metzenbaum-u-s-courthouse-cleveland-ohio.jpg?s=1024x1024&w=gi&k=20&c=odacBdzPHvUBQHg-tFIbT2PJdGT5QZ9j63-HX4Yh_I8=">Carol M. Highsmith/Buyenlarge/Getty Images</a></span></figcaption></figure><p>It is not the federal government that will hold Donald Trump’s future in its hands. It will be 12 jury members in his eventual trial.</p>
<p>Trump appears in federal court on June 13, 2023 for his arraignment and the formal presentation of the charges lodged against him in a <a href="https://www.documentcloud.org/documents/23839628-trump-indictment">37-count indictment</a> released on June 9, 2023. </p>
<p>Trump’s defenders have alleged that the indictment is a politically motivated “<a href="https://www.bloomberg.com/news/articles/2023-03-27/four-out-of-five-republicans-think-trump-investigations-are-witch-hunt">witch hunt</a>” by the Biden administration and that any conviction would thus be discredited. </p>
<p>But like all federal defendants, Trump will be protected by the <a href="https://constitutioncenter.org/the-constitution/amendments/amendment-vi">Sixth Amendment’s right to a jury trial</a>. That right, to have a jury of 12 citizens render judgment on his case, protects Trump from the government’s overstepping citizens’ limits on its power – a dynamic that is often lost in the political sound and fury over his state and federal indictments.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/531369/original/file-20230612-216609-h13kwc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A yellow sign with a black arrow points toward a large glass building, with palm trees outside." src="https://images.theconversation.com/files/531369/original/file-20230612-216609-h13kwc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/531369/original/file-20230612-216609-h13kwc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=381&fit=crop&dpr=1 600w, https://images.theconversation.com/files/531369/original/file-20230612-216609-h13kwc.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=381&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/531369/original/file-20230612-216609-h13kwc.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=381&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/531369/original/file-20230612-216609-h13kwc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=479&fit=crop&dpr=1 754w, https://images.theconversation.com/files/531369/original/file-20230612-216609-h13kwc.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=479&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/531369/original/file-20230612-216609-h13kwc.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=479&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">People pass by the Wilkie D. Ferguson Jr. United States Federal Courthouse, where Trump is scheduled to appear this week, in Miami, Fla.</span>
<span class="attribution"><a class="source" href="https://media.gettyimages.com/id/1497666902/photo/miami-readies-for-former-president-trumps-arraignment-in-federal-court.jpg?s=1024x1024&w=gi&k=20&c=M3BFPN36uNmGLhToI5msZAFbvFoFl5T3leNOrlvDcfY=">Joe Raedle/Getty Images</a></span>
</figcaption>
</figure>
<h2>‘In the hands of the governed’</h2>
<p>Sourced to the <a href="https://www.britannica.com/topic/Magna-Carta">Magna Carta</a>, the 13th-century charter of rights, jury trials have become a feature in all countries that share the British legal tradition, shielding citizens from unlimited prosecutorial power. </p>
<p>As the shrewd observer <a href="https://www.kenwoodacademy.org/ourpages/auto/2013/11/28/53482855/dem-in-america1.pdf">Alexis de Tocqueville</a> remarked in 1835, juries “place the real direction of society in the hands of the governed [because] he who punishes the criminal … is the real master of society.” </p>
<p>Supreme Court Justice Lewis Powell observed in 1966 that juries are especially significant in the trial of crimes against the state such as treason and sedition, which therefore can be considered political – and perhaps more open to prosecutorial abuse.</p>
<p>“It was just such abuses that caused our English and American forebears <a href="https://scholarlycommons.law.wlu.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=3586&context=wlulr">to prize trial by jury so highly</a>,” Powell said. </p>
<p>And Thomas Jefferson <a href="https://founders.archives.gov/documents/Jefferson/01-15-02-0259">wrote</a> that he “consider[ed] trial by jury as the only anchor even yet imagined by man, by which a government can be held to the principles of its constitution.”</p>
<p>In federal court in criminal prosecutions, such as Trump’s, a 12-member jury is a <a href="https://caselaw.findlaw.com/court/us-supreme-court/170/343.html">matter of right</a>, and that jury must reach a unanimous verdict to convict. </p>
<h2>Serious scrutiny</h2>
<p>The jury pool in federal cases is <a href="https://www.uscourts.gov/services-forms/jury-service/learn-about-jury-service">randomly drawn</a> from registered voters and people with driver’s licenses who live in the district.<br>
The process called “voir dire” allows defense attorneys to request that the judge reject certain potential jurors for cause – on grounds of some demonstrated issue of bias, such as when questioning of a juror reveals strong prejudice for or against a defendant. In Trump’s case, jurors’ political affiliations, and the depth of their partisan commitments, may be relevant and <a href="https://supreme.justia.com/cases/federal/us/158/408/">permissible grounds</a> for questioning at the trial court’s discretion. </p>
<p>Even potential jurors’ social media accounts may be investigated to expose their political views. Voir dire also allows defense attorneys to reject – in legal parlance, to “strike” – up to 10 jurors <a href="https://www.federalrulesofcriminalprocedure.org/title-vi-trial/rule-24-trial-jurors/">for no cause at all</a>. </p>
<p>Federal rules allow up to six alternative jurors in the event one is dismissed by the judge for improper behavior, such as violating the judge’s instructions regarding access to media or <a href="https://www.dailymail.co.uk/news/article-11812807/Juror-Murdaugh-kicked-case-discussing-evidence-THREE-people.html">discussing the case</a> with people outside of court. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/531410/original/file-20230612-218720-ucxday.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A man with dark hair, wearing a 19th century jacket." src="https://images.theconversation.com/files/531410/original/file-20230612-218720-ucxday.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/531410/original/file-20230612-218720-ucxday.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=710&fit=crop&dpr=1 600w, https://images.theconversation.com/files/531410/original/file-20230612-218720-ucxday.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=710&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/531410/original/file-20230612-218720-ucxday.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=710&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/531410/original/file-20230612-218720-ucxday.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=892&fit=crop&dpr=1 754w, https://images.theconversation.com/files/531410/original/file-20230612-218720-ucxday.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=892&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/531410/original/file-20230612-218720-ucxday.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=892&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">French politician Alexis de Tocqueville, an observer of early America, famously said juries ‘place the real direction of society in the hands of the governed.’</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/alexis-de-tocqueville-french-historian-original-artwork-news-photo/3309867?adppopup=true">Lithograph by von Chasseriau, photo by Hulton Archive/Getty Images</a></span>
</figcaption>
</figure>
<h2>High profile, high pressure</h2>
<p>If he chooses to go to trial, Donald Trump will face a jury of his peers carefully scrutinized by his defense attorneys for potential bias, who may be replaced in the event they misbehave. Like all criminal defendants, Trump will enjoy the protection that the jury will offer him from abuse by the government’s prosecutors. </p>
<p>Of course, jurors in high-profile cases such as United States v. Trump face pretrial exposure to extensive media coverage. But this is nothing new. </p>
<p>Early in the history of the republic, <a href="https://constitutioncenter.org/blog/the-great-trial-that-tested-the-constitutions-treason-clause">Vice President Aaron Burr stood trial for treason</a> on grounds that he had fomented a military effort to separate the Louisiana Territory from the United States. After he resigned from the vice presidency during Jefferson’s last term in office, Burr traveled the country gathering collaborators in his plot to separate the western territories from the union. </p>
<p><a href="https://www.famous-trials.com/burr/156-home">Burr’s trial</a> in Richmond, Virginia, was presided over by U.S. Chief Justice John Marshall and <a href="https://www.neh.gov/humanities/2013/mayjune/feature/burr-versus-jefferson-versus-marshall">became a cause célèbre</a>, with widespread and detailed coverage in newspapers in Virginia. </p>
<p>Marshall <a href="https://www.neh.gov/humanities/2013/mayjune/feature/burr-versus-jefferson-versus-marshall">struggled with the effect of pretrial publicity</a> on the jury but ultimately concluded that finding a jury without any such exposure would be impossible and thus not required. <a href="https://constitutioncenter.org/blog/the-great-trial-that-tested-the-constitutions-treason-clause">Burr was ultimately acquitted</a>. </p>
<p>Jurors themselves, however, may face more significant personal difficulties in discharging their duties, including significant pressure associated with public scrutiny. Jurors in the high-profile case involving Rodney King, for example, experienced threats and disturbing phone calls <a href="https://www.chicagotribune.com/news/ct-xpm-1993-02-15-9303182165-story.html">when their names became public</a>. </p>
<p>Jurors may also experience <a href="https://www.cbc.ca/news/canada/toronto/jury-murder-trials-justice-court-ontario-ptsd-trauma-1.3796520">post-traumatic stress disorders</a> and other stress-related health issues following high-profile trials or trials entailing disturbing evidence. </p>
<p>For these reasons, the jurors in the Trump trial may be protected by anonymity, if the presiding judge orders it. There was such <a href="https://www.reuters.com/legal/trump-face-anonymous-jury-high-profile-new-york-defamation-trial-2023-03-23/">an order</a> in the E. Jean Carroll case against Trump in New York. </p>
<p>How Judge Aileen Cannon – <a href="https://thehill.com/policy/national-security/4042423-trump-appointed-judge-aileen-cannon-assigned-to-his-documents-case/">twice reversed</a> by a higher court for Trump-friendly rulings – will approach the issue of juror anonymity is unclear.</p>
<p>Given the agitation among Trump’s supporters, the high-stakes nature of the case, and the importance of protecting the jurors – who wield such power in the judicial system – I believe such an order is necessary.</p><img src="https://counter.theconversation.com/content/207384/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Stefanie Lindquist does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>
Like all criminal defendants, Trump will enjoy the protection that a jury will offer from abuse by government prosecutors.
Stefanie Lindquist, Foundation Professor of Law and Political Science, Arizona State University
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/198976
2023-02-03T00:31:36Z
2023-02-03T00:31:36Z
Waitangi Day 2023: why Article 3 of the Treaty deserves more attention in the age of ‘co-governance’
<figure><img src="https://images.theconversation.com/files/507977/original/file-20230202-13499-md4bol.jpg?ixlib=rb-1.1.0&rect=12%2C12%2C4268%2C2811&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Getty Images</span></span></figcaption></figure><p>The heated (and often confused) debate about “<a href="https://www.1news.co.nz/2022/08/11/explainer-what-is-co-governance/">co-governance</a>” in Aotearoa New Zealand inevitably leads back to its source, <a href="https://www.archives.govt.nz/discover-our-stories/the-treaty-of-waitangi">Te Tiriti o Waitangi</a>. But, as its long-contested meanings demonstrate, very little in the Treaty of Waitangi is straightforward.</p>
<p>Two versions of the 1840 document were written, one <a href="https://nzhistory.govt.nz/politics/treaty/read-the-treaty/english-text">in English</a> and one in <a href="https://nzhistory.govt.nz/politics/treaty/read-the-treaty/maori-text">te reo</a> Māori. About 540 Māori, including 13 women, had put their names or <a href="https://maoridictionary.co.nz/word/4170">moko</a> to the document. All but 39 <a href="https://nzhistory.govt.nz/politics/treaty/making-the-treaty/signing-the-treaty#:%7E:text=Gathering%20signatures%20from%20around%20the,Waitangi%20on%206%20February%201840.">signed the Māori text</a>.</p>
<p>But the <a href="https://nzhistory.govt.nz/politics/treaty/read-the-Treaty/differences-between-the-texts">differences in the translations</a> were so significant that there has been debate ever since about what much of this agreement actually meant, especially Articles 1 and 2.</p>
<p>Article 3, on the other hand, attracts less controversy – which is interesting, because it was and is critical to debates such as the one swirling around co-governance. In effect, Article 3 acted as a mechanism by which the <a href="https://forms.justice.govt.nz/search/Documents/WT/wt_DOC_68338112/Maori%20Electoral%20Option%201994.pdf">fundamental rights and privileges</a> of British citizenship would be afforded Māori.</p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/507978/original/file-20230202-16618-7ntl8j.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/507978/original/file-20230202-16618-7ntl8j.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/507978/original/file-20230202-16618-7ntl8j.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=772&fit=crop&dpr=1 600w, https://images.theconversation.com/files/507978/original/file-20230202-16618-7ntl8j.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=772&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/507978/original/file-20230202-16618-7ntl8j.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=772&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/507978/original/file-20230202-16618-7ntl8j.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=971&fit=crop&dpr=1 754w, https://images.theconversation.com/files/507978/original/file-20230202-16618-7ntl8j.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=971&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/507978/original/file-20230202-16618-7ntl8j.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=971&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">William Hobson, circa 1840.</span>
<span class="attribution"><span class="source">Getty Images</span></span>
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</figure>
<p>In the English language version, the Crown promises the Queen’s “royal protection and imparts to them all the Rights and Privileges of British Subjects”. In te reo, the Crown gave an assurance that Māori would have the Queen’s protection and all rights accorded to British subjects.</p>
<p>The promise of these rights and privileges, coupled with Articles 1 and 2, conferred a fundamental commitment of a <a href="https://waitangitribunal.govt.nz/assets/Documents/Publications/WT-Principles-of-the-Treaty-of-Waitangi-as-expressed-by-the-Courts-and-the-Waitangi-Tribunal.pdf">partnership</a>, in which the two sides could be expected to act reasonably, honourably and in good faith towards each other.</p>
<p>Although there were many British laws, practices and principles in existence by this time, four particularly stand out.</p>
<h2>Participation</h2>
<p>The ideal was that laws reflected the community (or a portion of it at least) and were made with the participation and consent of citizens. This was a long-standing principle, in that law and governance could not be something arbitrary or controlled absolutely by one person.</p>
<p>There had been efforts to control royal abuses of power since the <a href="https://www.parliament.uk/about/living-heritage/evolutionofparliament/originsofparliament/birthofparliament/overview/magnacarta/">Magna Carta</a> in 1215 and the establishment of a “common council of the kingdom”, by which high-ranking community leaders could be summoned to discuss important matters.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/a-growing-number-of-non-maori-new-zealanders-are-embracing-learning-te-reo-but-theres-more-to-it-than-language-198154">A growing number of non-Māori New Zealanders are embracing learning te reo – but there's more to it than language</a>
</strong>
</em>
</p>
<hr>
<p>Later, the 1688 <a href="https://www.legislation.gov.uk/aep/WillandMarSess2/1/2/introduction">Bill of Rights</a> required free and frequent parliaments which would contain the right of free speech within them (parliamentary privilege in today’s terms). This meant representatives could speak without fear. Monarchs could no longer suspend laws on a whim, levy taxes at their pleasure, or maintain a standing army during peacetime without the permission of parliament.</p>
<p>The anomaly that only about 5% of British citizens (wealthy and entitled men) could actually vote for members of parliament was not resolved until <a href="https://www.parliament.uk/about/living-heritage/evolutionofparliament/houseofcommons/reformacts/overview/reformact1832/">legal reform</a> in the early 1830s. This began the expansion of the political franchise and the widening of control over parliament.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/507979/original/file-20230202-19461-cm8k8l.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/507979/original/file-20230202-19461-cm8k8l.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=340&fit=crop&dpr=1 600w, https://images.theconversation.com/files/507979/original/file-20230202-19461-cm8k8l.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=340&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/507979/original/file-20230202-19461-cm8k8l.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=340&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/507979/original/file-20230202-19461-cm8k8l.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=427&fit=crop&dpr=1 754w, https://images.theconversation.com/files/507979/original/file-20230202-19461-cm8k8l.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=427&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/507979/original/file-20230202-19461-cm8k8l.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=427&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">The British Houses of Parliament in the 1800s, source of the laws underpinning the articles of Te Tiriti o Waitangi.</span>
<span class="attribution"><span class="source">Getty Images</span></span>
</figcaption>
</figure>
<h2>Individual rights</h2>
<p>All were deemed equal in the eyes of the law, and the delivery of justice with integrity could be expected. Clause 39 of the Magna Carta stated:</p>
<blockquote>
<p>No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land.</p>
</blockquote>
<p>Clause 40 added: “To no one will we sell, to no one deny or delay right or justice.” The <a href="https://www.legislation.gov.uk/aep/Cha2/31/2">Habeas Corpus Act</a> of 1679 required a court to examine the lawfulness of a prisoner’s detention, thus preventing unlawful or arbitrary imprisonment.</p>
<p>The Bill of Rights prohibited excessive penalties, cruel and unusual punishment, and the imposition of fines or penalties before convictions. It also guaranteed the right for all citizens to petition, where they could complain or seek help from the authorities, without fear of punishment.</p>
<h2>Tolerance and a free press</h2>
<p>After the Reformation, religious tolerance among British subjects took centuries to develop. The 1701 Toleration Act allowed some <a href="https://www.parliament.uk/about/living-heritage/transformingsociety/private-lives/religion/overview/catholicsnonconformists-/#:%7E:text=Toleration%20for%20nonconformists&text=In%201689%2C%20after%20much%20debate,of%20the%20oath%20of%20allegiance.">tolerance</a> of the public practising of different religions, although the monarch could never be Catholic. But it was not until 1829 that <a href="https://www.parliament.uk/about/living-heritage/evolutionofparliament/2015-parliament-in-the-making/get-involved1/2015-banners-exhibition/rachel-gadsden/1829-catholic-emancipation-act-gallery/#:%7E:text=In%20the%201828%20County%20Clare,Irish%20peasants%20entitled%20to%20vote.">Catholics</a> – and some other faiths – could even be elected to parliament in Britain.</p>
<p>The importance of tolerance can be seen in the <a href="https://www.tepapa.govt.nz/discover-collections/read-watch-play/maori/treaty-waitangi/treaty-close/content-treaty-waitangi">oral promise</a> made by Governor William Hobson at the time of the signing the Treaty: all established religious faiths would be tolerated in New Zealand, “and also Māori custom shall be alike protected by him”. Although an oral commitment, to many signatories it was just as binding as the written words.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/putting-te-tiriti-at-the-centre-of-aotearoa-new-zealands-public-policy-can-strengthen-democracy-heres-how-180305">Putting te Tiriti at the centre of Aotearoa New Zealand’s public policy can strengthen democracy – here's how</a>
</strong>
</em>
</p>
<hr>
<p>Public debate and the role of a free press was another important privilege. Although British laws governing libel, blasphemy and sedition were continued after 1688, there was a clear trend toward expanding liberty, allowing both booksellers and newspapers to proliferate. </p>
<p>This helped build the modern belief in the “fourth estate”, and that the media would act as a positive influence on decision makers.</p>
<h2>Forward together</h2>
<p>Despite the fine sounding language of Article 3 and all the expectations that went with it, the reality was that for many decades after 1840, the promised rights and privileges did not arrive for everyone.</p>
<p>The governor, followed by the early stages of representative government, ruled with a near absolute power that crushed dissent. The law itself was often used to target the rights and privileges of Māori, with some of the darkest examples occurring during and after the New Zealand Wars/Ngā Pakanga o Aotearoa.</p>
<p><a href="https://waitangitribunal.govt.nz/inquiries/district-inquiries/te-paparahi-o-te-raki-northland">Equality</a> for most was largely a chimera, tolerance was elusive, and the press did not act as a brake on atrocious decision making.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/the-crown-is-maori-too-citizenship-sovereignty-and-the-treaty-of-waitangi-111168">The Crown is Māori too - citizenship, sovereignty and the Treaty of Waitangi</a>
</strong>
</em>
</p>
<hr>
<p>Thankfully, the world is different today. Positive change has happened through successive generations of Māori defending the rights guaranteed in 1840, the Waitangi Tribunal, and the critical questioning of early and contemporary government policies by Māori, politicians, community leaders, media and scholars. </p>
<p>There have been official apologies, compensation and redress, although only a portion of what was alienated has been returned.</p>
<p>As we move forward and look for new ways to work together to achieve equal and equitable partnership based on Te Tiriti o Waitangi, it is important to remember the relevance of Article 3 and what it continues to offer in a modern context.</p><img src="https://counter.theconversation.com/content/198976/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>
Article 3 of Te Tiriti o Waitangi gave Māori the fundamental rights and freedoms guaranteed under British law. Understanding it is critical to modern debates over ‘co-governance’ and partnership.
Alexander Gillespie, Professor of Law, University of Waikato
Claire Breen, Professor of Law, University of Waikato
Valmaine Toki, Professor of Law, University of Waikato
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/139844
2020-06-02T22:48:21Z
2020-06-02T22:48:21Z
Can the president really order the military to occupy US cities and states?
<figure><img src="https://images.theconversation.com/files/339302/original/file-20200602-133933-7btppa.jpg?ixlib=rb-1.1.0&rect=180%2C20%2C2528%2C1550&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">President Donald Trump makes a statement to the press in the Rose Garden about restoring "law and order" in the wake of protests.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/president-donald-trump-makes-a-statement-to-the-press-in-news-photo/1240551980?adppopup=true">Chip Somodevilla/Getty Images</a></span></figcaption></figure><p>After a week of both peaceful protests and violent chaos in the wake of George Floyd’s death, President Donald Trump <a href="https://www.cnn.com/2020/06/01/politics/read-trumps-rose-garden-remarks/index.html">announced</a>, “If a city or state refuses to take the actions that are necessary to defend the life and property of their residents, then I will deploy the United States military and quickly solve the problem for them.”</p>
<p>Is Trump’s warning just bluster? Does the president have the authority to send the military into American cities? </p>
<p>The answer to this question involves a web of legal provisions that help define the president’s constitutional roles as commander in chief and chief executive of the country and that simultaneously try to balance presidential power with the power of state leaders.</p>
<h2>‘Protect states in times of violence’</h2>
<p>Tracing back to the Magna Carta, the British charter of liberty signed in 1215, there is a <a href="https://fas.org/sgp/crs/natsec/R42659.pdf">longstanding tradition</a> against military involvement in civilian affairs. </p>
<p>However, the U.S. Constitution guarantees that the national government will protect the states in times of violence and permits Congress to enact laws that enable the military to aid in carrying out the law.</p>
<p>Almost immediately after the Constitution’s enactment in 1787, Congress passed a law that <a href="https://www.constitution.org/mil/mil_act_1792.htm">allowed</a> the president to use the military to respond to a series of citizen rebellions. </p>
<p>Troops serving as what’s called “posse comitatus,” which translates roughly to “attendants with the capacity to act,” could be called to suppress insurrections and help carry out federal laws. </p>
<p>Following the Civil War, the national government used troops in this capacity <a href="https://history.army.mil/html/books/075/75-18/cmhPub_75-18.pdf">to aid in Reconstruction efforts</a>, particularly in states that had been part of the Confederacy. </p>
<p>The use of troops in this manner <a href="https://www.270towin.com/1876_Election/">may even have influenced</a> the outcome of the 1876 presidential election of Republican Rutherford B. Hayes. That happened when, in return for agreeing to withdraw federal troops from the South, Democrats informally agreed to the <a href="https://www.britannica.com/event/United-States-presidential-election-of-1876">election of Hayes when the disputed election</a> was thrown to a congressional commission. </p>
<p>Two years later, Hayes signed into law the Posse Comitatus Act, which prohibited the use of the military in civilian matters.</p>
<p>The Posse Comitatus Act has not changed much since that time. <a href="https://statecodesfiles.justia.com/us/2011/title-18/part-i/chapter-67/section-1385/document.pdf">The law</a> prohibits the use of the military in civilian matters but, over time, Congress has passed at least 26 exemptions to the act that allow the president to send troops into states.</p>
<p>The exemptions range from providing military personnel to protect national parks to helping states in carrying out state quarantine and health laws.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/339308/original/file-20200602-133902-16j4ypu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/339308/original/file-20200602-133902-16j4ypu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/339308/original/file-20200602-133902-16j4ypu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=405&fit=crop&dpr=1 600w, https://images.theconversation.com/files/339308/original/file-20200602-133902-16j4ypu.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=405&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/339308/original/file-20200602-133902-16j4ypu.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=405&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/339308/original/file-20200602-133902-16j4ypu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=510&fit=crop&dpr=1 754w, https://images.theconversation.com/files/339308/original/file-20200602-133902-16j4ypu.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=510&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/339308/original/file-20200602-133902-16j4ypu.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=510&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Military troops arrive in Los Angeles to restore order after rioting occurred in the wake of the verdict in the Rodney King case in 1992.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/military-troops-arrive-in-los-angeles-to-restore-order-news-photo/635967667?adppopup=true">Peter Turnley/Corbis/VCG via Getty Images</a></span>
</figcaption>
</figure>
<h2>Insurrection Act</h2>
<p>What exemption would President Trump use if he wants to send the military to one or more states?</p>
<p>He would likely rely on the <a href="https://govtrackus.s3.amazonaws.com/legislink/pdf/stat/2/STATUTE-2-Pg443a.pdf">Insurrection Act</a>, which governs certain circumstances when the president can use the military. Signed by Thomas Jefferson in 1807, Congress originally passed the law in order to help fight citizen rebellions against federal taxes. </p>
<p>Over time, the law has evolved to allow the use of troops in other circumstances. For example, Presidents Eisenhower, Kennedy and Johnson used the Insurrection Act in the 1950s and 1960s to send the military to <a href="https://www.ajc.com/news/the-insurrection-act-1807-has-never-been-used-21st-century/GFnYXINktqHAwVDWXZcuvL/">enforce court desegregation orders and to protect civil rights marchers</a>. </p>
<p>It was last invoked <a href="https://www.latimes.com/archives/la-xpm-1992-05-02-mn-1280-story.html">by President George H.W. Bush</a> in 1992, when he ordered 4,500 troops to Los Angeles after rioting erupted in response to the acquittal of police officers charged with beating Rodney King.</p>
<p>The Insurrection Act says that the president may use the armed forces to subdue an insurrection or rebellion and take such measures as he considers necessary to suppress violence. </p>
<p>But before doing so, he must issue a proclamation ordering insurgents to disperse and return to their homes. </p>
<p>While state governors and legislatures also have the legal authority to ask the president to use troops in this manner, <a href="https://www.nbcnews.com/politics/politics-news/trump-considering-move-invoke-insurrection-act-n1221326">none have done that</a> during this period of unrest. The states have preferred to rely on a combination of local law enforcement and the National Guard, which is under state command, not federal. </p>
<p>Not only does this strategy enable governors to maintain authority over their states’ responses to the clashes in the wake of George Floyd’s death, but it also keeps things more straightforward legally and politically.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/339311/original/file-20200602-133855-1f0i3sa.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/339311/original/file-20200602-133855-1f0i3sa.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/339311/original/file-20200602-133855-1f0i3sa.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/339311/original/file-20200602-133855-1f0i3sa.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/339311/original/file-20200602-133855-1f0i3sa.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/339311/original/file-20200602-133855-1f0i3sa.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/339311/original/file-20200602-133855-1f0i3sa.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/339311/original/file-20200602-133855-1f0i3sa.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">After President Trump’s threat to send troops to quell violence, Illinois Gov. J.B. Pritzker, middle, told CNN ‘I reject the notion that the federal government can send troops into the state of Illinois.’</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/chicago-mayor-lori-lightfoot-stands-by-as-illinois-gov-j-b-news-photo/1209101191?adppopup=true">Chris Sweda-Pool via Getty Images</a></span>
</figcaption>
</figure>
<h2>Authority uncertain</h2>
<p>Reliance on the Insurrection Act raises a <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1411287">host of political and practical questions about who is in charge when the military sends troops into a state</a>. </p>
<p>For example, despite the fact that the act was invoked in response to the Rodney King riots, the military actually was <a href="https://www.jstor.org/stable/pdf/resrep11801.pdf?refreqid=excelsior%3Ac3dc29e45b86d2b0d3d4314963a96899">not used as directed</a>. The Joint Task Force Commander in control of the mission appears to have been confused regarding how the Insurrection Act worked alongside the provisions of the Posse Comitatus Act. He issued an order prohibiting troops from directly supporting law enforcement and <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1411287">that led to numerous denials of requests for assistance</a>.</p>
<p>Questions about the federal government’s authority in the wake of the 2005 Hurricane Katrina in Louisiana raised similar concerns. </p>
<p>The administration of President George W. Bush determined that it had authority under the Insurrection Act to send federal troops to the area, despite the fact that Louisiana’s governor was opposed to military assistance. </p>
<p>For political reasons, President Bush did not end up deploying troops but, in 2006, Congress <a href="https://jnslp.com/wp-content/uploads/2010/08/02-Banks-V13-8-18-09.pdf">amended the law</a> to address concerns that the military was unable to provide effective assistance to states in emergency situations. </p>
<p>The amendment was later repealed when <a href="https://jnslp.com/wp-content/uploads/2010/08/02-Banks-V13-8-18-09.pdf">all 50 state governors</a> raised objections to what they perceived as a grant of unilateral power to the president. </p>
<p>These examples suggest a real difficulty balancing governmental responses to domestic crises. States need the flexibility and authority to respond as they see fit to the needs of their citizens. </p>
<p>But the federal government can and often does serve as a supplemental resource. As the events of the past week illustrate, striking an effective balance is rarely a straightforward thing.</p>
<p>[<em>Insight, in your inbox each day.</em> <a href="https://theconversation.com/us/newsletters?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=insight">You can get it with The Conversation’s email newsletter</a>.]</p><img src="https://counter.theconversation.com/content/139844/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jennifer Selin has received funding for her research on the executive branch from the Administrative Conference of the United States. In addition, she has received funding for her research on Congress from the Dirksen Congressional Center and the Center for Effective Lawmaking.</span></em></p>
President Trump has warned that he will send the military into states to curb protests. Is Trump’s warning bluster? Or does the president have the authority to send the military into American cities?
Jennifer Selin, Kinder Institute Assistant Professor of Constitutional Democracy, University of Missouri-Columbia
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/138203
2020-05-08T05:35:12Z
2020-05-08T05:35:12Z
Was New Zealand’s coronavirus lockdown legal? One week might make all the difference
<figure><img src="https://images.theconversation.com/files/333598/original/file-20200508-49579-p3k4cd.jpg?ixlib=rb-1.1.0&rect=15%2C5%2C3479%2C2352&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">www.shutterstock.com</span></span></figcaption></figure><p>As New Zealand approaches the end of its strictest lockdown period, a debate has begun about whether it <a href="https://www.stuff.co.nz/national/health/coronavirus/300006616/legal-challenge-over-coronavirus-lockdown">was legal</a> in the first place. This is important because people are being prosecuted for breaching the lockdown. Naturally, lawyers are getting involved, so things are going to get technical.</p>
<p>Some lawyers tend to speak in hyperbolic terms about the “rule of law”. Invariably, they will go back to 1297, because the Magna Carta of that year – obtained as a concession by the landed gentry of England from the king – required that imprisonment be regulated by law. That provision of English law still applies in New Zealand. Its modern consequence is that public officials, whether the police or the director general of health, can only detain us if they act within statutory powers.</p>
<p>A more recent declaration of principle is found in <a href="http://www.legislation.govt.nz/act/public/1990/0109/latest/DLM225524.html">section 22</a> of the New Zealand Bill of Rights Act 1990, which says, “Everyone has the right not to be arbitrarily arrested or detained.” </p>
<p>When judges interpret other laws, they must try to make sure that the Bill of Rights is met. So if a statute contains a power of detention, it will be construed that it does not allow arbitrary detention unless parliament has been clear that it does not mind arbitrariness.</p>
<p>At a broad-brush level, there are three main legal questions. Was there detention? If so, was there a law in place that allowed detention? And did the law allow arbitrary detention? Let’s look at those three key questions in turn – and why this debate could all come down to the week between March 26 and April 3, 2020.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/we-may-well-be-able-to-eliminate-coronavirus-but-well-probably-never-eradicate-it-heres-the-difference-137991">We may well be able to eliminate coronavirus, but we'll probably never eradicate it. Here's the difference</a>
</strong>
</em>
</p>
<hr>
<h2>Was lockdown a form of detention?</h2>
<p>Detention is a step up from restrictions on freedom of movement (also protected by the New Zealand Bill of Rights Act). And an important question is when do we cross the legal threshold from restriction to detention? This is significant because of the protections in international human rights law, which the New Zealand Bill of Rights Act is designed to secure. At the international level, it is made clear that wrongful detention requires compensation.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/333605/original/file-20200508-49579-1gm28t4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/333605/original/file-20200508-49579-1gm28t4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/333605/original/file-20200508-49579-1gm28t4.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/333605/original/file-20200508-49579-1gm28t4.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/333605/original/file-20200508-49579-1gm28t4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/333605/original/file-20200508-49579-1gm28t4.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/333605/original/file-20200508-49579-1gm28t4.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">A deserted Wellington street on April 4, the day after isolation and quarantine were mandated under the Health Act.</span>
<span class="attribution"><span class="source">www.shutterstock.com</span></span>
</figcaption>
</figure>
<p>Various courts and international human rights bodies have examined where to draw the line. In essence, they have decided that “detention” does not require being put under lock and key. </p>
<p>Rather, it turns on whether the restrictions are more intense than mere restrictions on freedom of movement. This includes house arrest accompanied by limited movements outside. This supports the view that anyone other than essential workers was “detained” at level 4 and possibly most people at level 3.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/as-nz-goes-into-lockdown-authorities-have-new-powers-to-make-sure-people-obey-the-rules-134377">As NZ goes into lockdown, authorities have new powers to make sure people obey the rules</a>
</strong>
</em>
</p>
<hr>
<h2>Was there a law allowing NZ to detain people in lockdown?</h2>
<p>This question requires a legalistic review. The lockdown rested on directives from the director general of health (presumably drafted by government lawyers, who are the ones who should face any criticism should the lockdown prove to be open to legal challenge). </p>
<p>Under <a href="http://www.legislation.govt.nz/act/public/1956/0065/latest/DLM307083.html">section 70</a> of the Health Act 1956, the director general can issue <a href="https://www.health.govt.nz/our-work/diseases-and-conditions/covid-19-novel-coronavirus/covid-19-current-situation/covid-19-epidemic-notice">directives</a> with various aims. One power is to close premises and prevent people congregating in public places. This was used at the outset of the lockdown, but the directive did not specify house arrest and it is difficult to see that this power would allow that. </p>
<p>If the courts agree that people were placed in detention, government lawyers may have an uphill struggle to show that the law used allowed this.</p>
<p>Another section 70 power of the director general is to require isolation and quarantine. This more obviously allows detention, but a directive under this power was not issued until April 3. It made the house arrest scenario clear. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/333603/original/file-20200508-49569-k2jwwy.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/333603/original/file-20200508-49569-k2jwwy.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=439&fit=crop&dpr=1 600w, https://images.theconversation.com/files/333603/original/file-20200508-49569-k2jwwy.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=439&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/333603/original/file-20200508-49569-k2jwwy.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=439&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/333603/original/file-20200508-49569-k2jwwy.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=552&fit=crop&dpr=1 754w, https://images.theconversation.com/files/333603/original/file-20200508-49569-k2jwwy.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=552&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/333603/original/file-20200508-49569-k2jwwy.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=552&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Director General of Health Dr Ashley Bloomfield providing a COVID-19 update to media in Wellington.</span>
</figcaption>
</figure>
<p>But a separate question is whether the directive can cover all people or whether individual orders have to be made. Given that people can be infectious without symptoms, the public health basis for group detention is fairly strong. In addition, the Health Act powers can be contrasted to powers to quarantine under the Tuberculosis Act 1948, which required an individualised court order.</p>
<p>So, assuming detention, there are good arguments that it was not based in law until April 3. Even after that date there is the third question: was it arbitrary? </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/the-psychology-of-lockdown-suggests-sticking-to-rules-gets-harder-the-longer-it-continues-135927">The psychology of lockdown suggests sticking to rules gets harder the longer it continues</a>
</strong>
</em>
</p>
<hr>
<h2>Did NZ allow arbitrary detention in lockdown?</h2>
<p>Many cases have discussed the meaning of arbitrariness, but the core idea is that detention must be the last step – namely, that other options are inadequate. This will depend on the evidence as to the state of knowledge about COVID-19 when the lockdown was imposed. </p>
<p>Importantly, the government has a duty to protect lives, and pandemic situations can be very dangerous, particularly for vulnerable people – as has been demonstrated in New Zealand, and more so in countries that took a lax approach.</p>
<p>Summarising this, first there are good arguments that most of New Zealand was in detention. The government seems to have a good prospect of showing that this was not arbitrary, given the risks of the disease spreading and causing death and misery. </p>
<p>But there is a clear problem with a failure to use the proper law from midnight on March 25, when level 4 lockdown began, until April 3. </p>
<p>This is not just an academic question. People were arrested, prosecuted and in some cases imprisoned for breaching the lockdown rules. </p>
<p>If the lockdown was not lawful until part-way through, people arrested in the week between March 26 and April 3 should not have been. And if, despite the strong arguments of the government, the lockdown was arbitrary, even arrests after April 3 will have been improper. Those people will have a pretty clear claim for unlawful detention and compensation, despite their selfish actions.</p><img src="https://counter.theconversation.com/content/138203/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Kris Gledhill does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>
Legal challenges to New Zealand’s strict early lockdown rules will test how far a government can go in a public health emergency.
Kris Gledhill, Professor of Law, Auckland University of Technology
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/54422
2016-03-01T10:29:39Z
2016-03-01T10:29:39Z
The Big Short is a perverse Robin Hood parable – in which King John wins
<figure><img src="https://images.theconversation.com/files/112957/original/image-20160225-15165-e4z6vo.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">King Johns.</span> <span class="attribution"><span class="source">© 2015 Paramount Pictures. All Rights Reserved.</span></span></figcaption></figure><p>At heart, <a href="http://www.imdb.com/title/tt1596363/">The Big Short</a> – which just won Best Adapted Screenplay at the <a href="https://theconversation.com/oscars-2016-expert-reaction-55481">Oscars</a> – is a parable. Much like Robin Hood’s comment on the greed of King John, it warns of the dangers that come from taking from the poor for personal gain and power. It is a simple story designed to illustrate a moral lesson. And when the moral lesson in hand is calling out the financial establishment, you’d think we should be pleased the film is scoring so many accolades. </p>
<p>But this particular story has some issues. While the film attacks the moral architecture of Wall Street’s financial services industry, in doing so it continues to uphold the “virtue” and “sanctity” of the financial market. The outcome is another dramatisation of the events surrounding the financial crisis that leaves a sour taste and a questionable moral lesson.</p>
<p>In this parable, King John is represented by Wall Street (but the film could easily be set in the City of London or any other global financial hub), representing the bloated greed of wealth, entitlement and privilege. Built on asymmetric contracts of debt, what was once a staid and secure industry that offered a stable funding structure for homeowners has now become a toxic web of sub-prime mortgage lending. We learn how the financial services industry has generated its vast wealth and power out of overestimating the public’s ability to repay their debt. </p>
<p>At one stage, the film questions the moral line this raises between stupidity and criminality. “If stupidity is a crime, my brother-in-law should be arrested,” Ryan Gosling’s character retorts. Throughout we are told how complex financial instruments, such as <a href="http://www.investopedia.com/terms/c/cdo.asp">Collateral Debt Obligations</a> (CDOs), have a vice-like grip over society’s most vulnerable. </p>
<figure>
<iframe width="440" height="260" src="https://www.youtube.com/embed/vgqG3ITMv1Q?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
</figure>
<h2>The Merry Men</h2>
<p>We follow various hedge funds operators, investors and “garage” traders – the film’s version of Robin Hood’s Merry Men – who have spotted the precarious foundations of this ivory tower. Their intelligence, cynicism and “outsider” status spot a gap in the market; one which, if they’re right, will wreak havoc for many millions of ordinary, low-income members of society. As in the Robin Hood parable, they take it upon themselves to take from the rich “fat cats” – but this is where the parallels with Robin Hood end. </p>
<p>We’re told at great lengths of the costs this systemic and reckless form of gambling has for many individuals. Brad Pitt’s character, a “reformed” ex-Wall Street banker now living a renewed life of earthy ethics and simplicity, serves as a moral compass to remind the audience of who is paying the true price of this greed and excess. In its conclusion, the film highlights how few individuals have been held to account. But the question of individual culpability fails to articulate the systemic extent of market capture that produces a unique brand of aggressive individualism and profit making. </p>
<p>This is a story that seeks to challenge how the financial service industry has succeeded in privatising wealth yet socialising risk – and yet the film upholds the sanctity and virtue of the financial market. The principal characters are, just like their Wall Street counterparts, market actors. They all play the same game. The only difference is that by the end of the film their actions are made legitimate and their gamble rewarded in the form of profit.</p>
<p>The Merry Men of The Big Short themselves adhere to the logic of the market; they make a high-risk play which yields a great return. In the financial services industry this is everyone’s dream. It is a competitive landscape that rewards a particular type of high-risk and combative intelligence. The market does not reward sheep, but selects and bestows wealth on leaders. In challenging the dominant assumption of housing market growth and betting on a downturn, these Merry Men have pitted their wits against the market, have been ridiculed for their stupidity and yet eventually they stand victorious.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/112962/original/image-20160225-15165-1o3awup.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/112962/original/image-20160225-15165-1o3awup.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/112962/original/image-20160225-15165-1o3awup.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/112962/original/image-20160225-15165-1o3awup.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/112962/original/image-20160225-15165-1o3awup.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/112962/original/image-20160225-15165-1o3awup.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/112962/original/image-20160225-15165-1o3awup.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Friar Tuck?</span>
<span class="attribution"><span class="source">© 2015 Paramount Pictures. All Rights Reserved.</span></span>
</figcaption>
</figure>
<h2>Through a glass darkly</h2>
<p>As an audience, we are being asked to follow and invest emotionally in their market strategy as if it somehow fixes the harms pressed onto those at the bottom of the complex CDOs. In essence, their actions are no different to those of the Wall Street “fat cats”. They may not have structured these instruments or traded in them, and their outsider status seemingly insulates them from the taint that infects bankers. But the entire premise of the film is one in which seven men bet on the destruction of livelihoods and win.</p>
<p>By asking us, the audience, to “be on their side” and follow them through the journey, the effects the financial services industry has on our everyday lives remain fundamentally unexplained. It is a parable in which Robin Hood steals from the rich and keeps all the proceeds for himself. </p>
<p>Brad Pitt reminds us of the social costs of this wealth and fortune, but the sheen of Hollywood glamour sticks. Rather than bringing the viewer closer and increasing a collective understanding of how we are all inextricably linked to this high-stakes world of greed, aggression and collusion, the film legitimises repatriating private wealth. And those who are paying the highest price are the ones who contributed the least to this crisis . </p>
<p>Without a greater focus on these social costs, as an audience we are in danger of becoming further removed from understanding the true causes and ongoing effects of the financial services industry. The “true story” of The Big Short is entertaining but, much like <a href="https://theconversation.com/the-wolf-of-wall-street-is-a-howling-disappointment-22219">The Wolf of Wall Street</a>, it leaves a sour taste and unanswered questions. In fictionalising these events in this manner, the danger is that we come to view the lives of the wealthy and their actions through the same “soft focus” lens of fiction that they view ours.</p><img src="https://counter.theconversation.com/content/54422/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Alex Simpson has received funding from the Economic and Social Research Council.</span></em></p>
Yet another dramatisation of the events surrounding the financial crisis that leaves a sour taste and a questionable moral lesson.
Alex Simpson, Lecturer in Criminology, University of Brighton
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/41928
2015-06-15T05:12:40Z
2015-06-15T05:12:40Z
Magna Carta at 800: we are still enjoying the freedoms won
<p>Around 20 miles from central London, where modern-day government and democracy shape the lives of citizens throughout the United Kingdom, the Thames meanders peacefully through nondescript English countryside. This is just another part of the green and pleasant land that has come to define much of these shores. </p>
<p>Except that there’s something rather different about this rural corner of England. These riverside fields at Runnymede are reputed to be the setting for one of the most significant moments in UK democratic and constitutional history. The National Trust labels it “the birthplace of modern democracy”, while an impressive monument commemorates a “symbol of freedom under law”. It was here, of course, that the Magna Carta is said to have been sealed on June 15 1215 under the title of the “Great Charter”.</p>
<h2>Bad King John</h2>
<p>The catalyst for Magna Carta was the tyrannical rule of King John and, in particular, his imposition of arbitrary taxes upon the barons. The sealing of Magna Carta marked the first time that the notion that an unelected sovereign should be restrained under law was officially recognised. From then on, the idea that citizens should not be subjected to the arbitrary rule of a tyrannical monarch but instead be ruled and governed upon foundations of accepted legal process and law had a legal foundation. </p>
<p>This was, in essence, an evolution of the Aristotlean idea of the supremacy of law in preference to the supremacy of man. Such a concept is today known as the rule of law and Magna Carta is widely accepted as being the birth of such rule in the UK constitution. So, a big moment.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/84860/original/image-20150612-1461-1odbanq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/84860/original/image-20150612-1461-1odbanq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=497&fit=crop&dpr=1 600w, https://images.theconversation.com/files/84860/original/image-20150612-1461-1odbanq.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=497&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/84860/original/image-20150612-1461-1odbanq.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=497&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/84860/original/image-20150612-1461-1odbanq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=625&fit=crop&dpr=1 754w, https://images.theconversation.com/files/84860/original/image-20150612-1461-1odbanq.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=625&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/84860/original/image-20150612-1461-1odbanq.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=625&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">King John.</span>
</figcaption>
</figure>
<p>Of course, understandings of the rule of law have altered and developed from that determined by King John’s subjection. Theorists and academics have, over the centuries, debated and set out contrasting views as to what Magna Carta means in practice. </p>
<p>Adherence to the rule of law is now believed to demand more than due legal process in preference to arbitrary rule. It now (for example) demands the equal subjection of all people – whatever their rank or position – to the ordinary law of the land; the appreciation and protection of individual rights and liberties and the ultimate ability of all citizens to be able to conduct themselves freely in a system guided by law and legal principle.</p>
<h2>Modern Magna Carta</h2>
<p>To say that the modern UK constitution is one that adheres to the basic principles of the rule of law is to state the obvious. </p>
<p>That said, the UK constitutional system is markedly different from that which prevailed in the early 13th century. Monarchical legal power is virtually, if not completely, non-existent. Legislative and executive functions are in a sense fused through an institution built upon democracy and universal adult suffrage. The needs of citizens are fundamentally more diverse and complex than they were 800 years ago. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/84861/original/image-20150612-1456-12hzqiu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/84861/original/image-20150612-1456-12hzqiu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/84861/original/image-20150612-1456-12hzqiu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/84861/original/image-20150612-1456-12hzqiu.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/84861/original/image-20150612-1456-12hzqiu.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/84861/original/image-20150612-1456-12hzqiu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/84861/original/image-20150612-1456-12hzqiu.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/84861/original/image-20150612-1456-12hzqiu.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">One of four known surviving 1215 exemplars of Magna Carta.</span>
</figcaption>
</figure>
<p>Consequently, the system involves a great deal more discretionary authority than traditional rule of law theorists might find acceptable. As well as this, competing interests and concerns of the state often demand difficult balances and compromises to be struck between pressing political matters and concerns on the one hand, and individual liberties and core values of due process on the other. Even these occurrences are carefully regulated and debated as part of a constitutional system that, while highly peculiar, is adaptable and flexible to the constantly shifting needs and concerns of society. </p>
<p>The core values set out by the Magna Carta, therefore – due legal process over arbitrary power and the freedom to act within a system guided by legal principle – are still very much at the heart of our constitution, even if that system has evolved and changed beyond all recognition. </p>
<p>Over the centuries most of the Great Charter’s clauses have been repealed. Only three of the original 63 clauses remain in force: those providing for the freedom of the Church of England; the protection of the liberties and free customs of the City of London; and the protection of individuals from imprisonment or punishment without due process. </p>
<p>But the legacy of Magna Carta runs much deeper. The establishment of the rule of law at Runnymede 800 years ago went on to inspire and shape the development of the UK constitution and, indeed, the constitutions of democratic systems the world over.</p><img src="https://counter.theconversation.com/content/41928/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>John Stanton does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>
Only three of the original 63 clauses remain in force today, but the legacy of Magna Carta runs much deeper.
John Stanton, Lecturer, City Law School, City, University of London
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/41929
2015-06-14T11:34:07Z
2015-06-14T11:34:07Z
A feast fit for kings: how the barons might have celebrated Magna Carta
<figure><img src="https://images.theconversation.com/files/84578/original/image-20150610-6798-se7hgd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Dining room scene from the Luttrell Psalter, 1325-1335.</span> </figcaption></figure><p>For such a seminal historical event, Magna Carta is in some respects poorly recorded. We know quite a lot about who the rebel and loyalist barons were and where they came from, and we can reconstruct up to a point their movements in the weeks leading up to the peace treaty that Magna Carta was intended to be. But one of the many things we don’t know is how the barons who forced King John to assent to Magna Carta at Runnymede in June 1215 celebrated when it was all over. </p>
<p>The rebellious barons had been based in London since negotiations with the king had started in May, while John himself had moved around between Reading and Windsor. He dined at Windsor on June 10, with, among others, the newly elected abbot of Bury St Edmunds. He then probably returned to the royal castle after having spent the day at Runnymede in preliminary discussions. The barons were under safe conduct as long as the peace conference at Runnymede that resulted in Magna Carta lasted, but they were camping in royalist-held territory so it probably wasn’t until they returned to London that they could contemplate a feast fitting for the occasion. </p>
<h2>London gluttons</h2>
<p>Being based in London meant that the widest range of foods should have been available to them. Although government and commerce were not yet as centralised as they were to become, London was already the largest urban centre and the largest market in the country. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/84585/original/image-20150610-6801-7dxeux.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/84585/original/image-20150610-6801-7dxeux.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=371&fit=crop&dpr=1 600w, https://images.theconversation.com/files/84585/original/image-20150610-6801-7dxeux.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=371&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/84585/original/image-20150610-6801-7dxeux.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=371&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/84585/original/image-20150610-6801-7dxeux.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=467&fit=crop&dpr=1 754w, https://images.theconversation.com/files/84585/original/image-20150610-6801-7dxeux.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=467&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/84585/original/image-20150610-6801-7dxeux.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=467&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">A medieval baker with his apprentice.</span>
</figcaption>
</figure>
<p>A description of the city by Londoner William FitzStephen during the reign of John’s father Henry II mentions the quantity and variety of food for sale in shops near the river: </p>
<blockquote>
<p>You may find food according to the season, dishes of meat, roast, fried and boiled, large and small fish, coarser meats for the poor and more delicate for the rich. </p>
</blockquote>
<p>What we know about feasts in noble households at the time of Magna Carta suggests that meat, fish, pies, rissoles and locally grown green vegetables and herbs in thin soup – leeks, chard, parsley, sorrel – would have featured heavily. Feasts were characterised by a proliferation of many dishes served at the same time rather than in “removes” or courses and guests took some of each. Sweet fruit pastries were served at the same time as roast meat. </p>
<p>William FitzStephen also boasted that London was also a magnet for trade: “To this city from every nation under heaven merchants delight to bring their trade by sea.” What may have been self-evident to William was in fact the result of a longer process – the revival over a period beginning in the early 1100s of long-distance trade connecting northern Europe to the Mediterranean and, via Levantine ports such as Alexandria and Acre, to the natural resources of Asia and Africa: silk, cotton, gold, but especially spices. By 1214 there had been over a hundred years of European settlement in the Near East as a result of the Crusades and the Crusader States, and the higher material standards of life in the East were well known in the West.</p>
<h2>Spicing up</h2>
<p>The revival of trade enabled a food revolution to take place in European kitchens. The wealthy had of course always been able to eat better than the poor, but until the 12th century the differences were largely in quantity and in the ratio of meat to cereals. Trade with the east, however, opened up new kinds of food – imported fruit and vegetables that we now take for granted; spices such as pepper, cumin, cinnamon, saffron and ginger. But importantly, new methods of cooking and new tastes – for those who could afford them – also filtered through. </p>
<p>One of the first European recipe books dates from the end of the 13th century, but probably reflects tastes that had been introduced a couple of generations earlier, around the time of Magna Carta. If today’s food writers were reviewing it they’d probably call it “fusion”. The recipes show how cooking techniques and tastes had been profoundly influenced by eastern Mediterranean practices. </p>
<p>One such is a dish called “Syrian food”, in which a capon is poached with rice flour in a mixture of white wine and almond milk with ginger and another new import, sugar. Syrian food, or Syrian chicken, became a standard of medieval cookery by the 14th century. </p>
<p>This is also found in a slightly different form in the first cookbook in the English language, the Forme of Cury on Inglysch (14th century). The essence of this kind of cooking is the combination of sweet spices or flavours with meat or fish. In the recipe for “luce in soup”, the fish is parboiled whole, then fried in a pan around which raw egg yolk has been rubbed and sugar sprinkled. The fish is served with onions stewed in wine and flavoured with saffron. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/84584/original/image-20150610-6796-jbyzk6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/84584/original/image-20150610-6796-jbyzk6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=928&fit=crop&dpr=1 600w, https://images.theconversation.com/files/84584/original/image-20150610-6796-jbyzk6.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=928&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/84584/original/image-20150610-6796-jbyzk6.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=928&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/84584/original/image-20150610-6796-jbyzk6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1166&fit=crop&dpr=1 754w, https://images.theconversation.com/files/84584/original/image-20150610-6796-jbyzk6.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1166&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/84584/original/image-20150610-6796-jbyzk6.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1166&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">A French ducal feast in 1412.</span>
</figcaption>
</figure>
<h2>Celebrity chefs</h2>
<p>Further evidence of the Mediterranean provenance of the recipes in this collection is what may be the first appearance in England of pasta. The word is used to describe a flour-and-egg dough sweetened with sugar and ginger and boiled in strips, then covered with melted cheese. Another new taste revealed in this recipe book is the combination is the use of flowers in food, such as in a recipe for rose-petal soup made with almond milk. </p>
<p>By the late 14th century Europe had its first celebrity chefs, notably the French Guillaume Tirel, whose Le Viandier placed cooking within the wider context of household management. </p>
<p>But at the time of Magna Carta celebrity chefs and such developed tastes for Middle Eastern flavours were a way off. Chefs cooking for the barons celebrating after Runnymede were more likely to have known the Sicilian Book of Cooking, which was heavily inspired by Arabic styles of cooking and spices commonly in use in the Middle East. </p>
<p>So although we can only speculate, the feasting after Magna Carta may well have included some of the first examples of such eastern Mediterranean styles of cooking in England, alongside traditional roast and baked meats.</p>
<p>As to what would they have imbibed – wine, usually watered down, would have flowed at the barons’ tables. There is some intriguing evidence to the effect that some English preferred beer to wine, but in the 13th century there were vineyards in many areas of southern England – often planted by monasteries – and wine was also imported in large quantities. At this feast, no doubt, there would have been lots of it.</p><img src="https://counter.theconversation.com/content/41929/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Andrew Jotischky does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>
At the time of Magna Carta a food revolution was taking place, which would no doubt have been reflected in the barons’ celebrations.
Andrew Jotischky, Professor in History, Lancaster University
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/42696
2015-06-03T05:17:45Z
2015-06-03T05:17:45Z
Magna Carta was fundamentally a financial peace treaty
<figure><img src="https://images.theconversation.com/files/83713/original/image-20150602-19262-rhdz6m.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">One big tax code?</span> <span class="attribution"><a class="source" href="http://www.bl.uk/collection-items/magna-carta-1215">British Library</a></span></figcaption></figure><p>If you ask anyone what the <a href="https://theconversation.com/uk/topics/magna-carta">Magna Carta</a> is all about, you might be told that it is some sort of proto-human rights or constitutional document. This largely results from the fame and after-life of two particular clauses (39 and 40) – and the way the document has been interpreted and used over time. Such principles, though, played no part in its creation in 1215. Then, it was a kind of peace treaty between King John and the barons, and in many ways a <a href="http://oro.open.ac.uk/25042/">financial peace treaty at that</a>. </p>
<p>The 1215 Magna Carta contained some 63 clauses, more than 50 of which reflected various contemporary fiscal grievances. This was indicative of the profound and pervasive discontent with how the Crown arbitrarily exacted money or appropriated goods or financial rights, often employing strong arm tactics to do so.</p>
<h2>Tax rises</h2>
<p>King John was perennially short of money. In 1189, he succeeded his brother, Richard I (“The Lionheart”), whose castle-building, leadership of the Third Crusade and ransom, following capture on his way home, had left England greatly impoverished. John’s reign also coincided with a gradual shift throughout Europe from countries being domain-based states, where a ruler depended wholly on income from Crown property and lands, to tax-based ones. The insufficiency of Crown property to produce enough income precipitated the switch, which brought with it significant tax rises.</p>
<p>John attempted to increase income by various means, often by increasing the rates of existing taxes. For example fines were imposed for violating laws like the especially stringent forest law, which controlled the use of forest resources, limiting who could hunt or harvest from them. There were also increases in the amounts required from heirs to succeed their parent’s property, that individuals had to pay to get married, to rents from Crown lands (collected by local sheriffs under a system of tax farming) and many more.</p>
<figure class="align-left ">
<img alt="" src="https://images.theconversation.com/files/83712/original/image-20150602-19228-ze8ef9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/83712/original/image-20150602-19228-ze8ef9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=810&fit=crop&dpr=1 600w, https://images.theconversation.com/files/83712/original/image-20150602-19228-ze8ef9.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=810&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/83712/original/image-20150602-19228-ze8ef9.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=810&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/83712/original/image-20150602-19228-ze8ef9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1018&fit=crop&dpr=1 754w, https://images.theconversation.com/files/83712/original/image-20150602-19228-ze8ef9.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1018&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/83712/original/image-20150602-19228-ze8ef9.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1018&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">King John.</span>
<span class="attribution"><a class="source" href="http://commons.wikimedia.org/wiki/File%3ABritish_-_King_John_-_Google_Art_Project.jpg">British</a></span>
</figcaption>
</figure>
<p>John was also infamous for accepting bribes. Referred to as “gifts”, they were used to influence decisions on matters such as who might be granted the (profitable) wardship of a minor. </p>
<p>In his bid to raise revenues, John also used “extraordinary” collection measures. They were extraordinary because they were only levied when required to meet specific needs, such as war. <a href="http://www.britannica.com/EBchecked/topic/530299/scutage">Scutage</a> – where knights could commute military service to a cash payment instead – was one and there were also taxes on movable property, such as goods and livestock. Not only did John use these extraordinary measures more frequently than his predecessors, he applied higher rates. </p>
<p>As well as increasing these various taxes, John also appeared to have violated the customary procedures for imposing them. With scutage, for example, he sometimes omitted the usual administration procedures. Also, the money raised was often used for purposes other than stated or it was unclear why the money was needed – as with the tax on movable property in 1207. </p>
<p>Notably too, it wasn’t just the barons who were subject to John’s fiscal whims. Following a dispute with the Pope about who should be appointed as the Archbishop of Canterbury, which resulted in England being virtually excommunicated under a papal interdict lasting six years, John also took the opportunity to seize Church property. </p>
<h2>Taxation by consent</h2>
<p>It was the barons who bore the brunt of the increased taxes, paying enormous sums of money that seem staggering even today. Geoffrey de Mandeville, for instance, had to pay 20,000 marks (equivalent to several million pounds in today’s money) for the right to marry King John’s divorced wife, Isabella of Gloucester. If the assets the barons held generated insufficient income to pay the sums demanded, the assets themselves could be seized in lieu. Thus John obtained his taxes at the same time as depriving individuals of the wealth and assets that gave them their status, power and prestige – all causes of deep resentment.</p>
<p>Importantly, the 1207 tax on movable property exhibited characteristics of taxes that we would recognise today. <a href="http://oro.open.ac.uk/25042/">Some have argued</a> it was levied so as to have money in hand to deal with a future need (one not specified at the time it was raised, which was unusual); was levied on property not land; was paid by most classes of society; was collected nationally by special royal justices, using a localised measure and a form of self-assessment; and was legitimised in that one or more councils (of barons and possibly clergy) agreed to it.</p>
<p>It was Magna Carta, however, that more comprehensively identified a need for due process in taxation matters. The discontent arising from John’s use of scutage appears reflected in Clause 12, which says the tax should not be levied without the “common counsel of the kingdom”. Consequently, Clause 14 set out how this common counsel was to be obtained, with due summons to specified individuals to a named venue, with proper notice. These clauses clearly indicate a requirement for due process when imposing tax and a degree of consent from those on whom they were imposed, which remain important today.</p><img src="https://counter.theconversation.com/content/42696/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jane Frecknall-Hughes does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>
The 1215 Magna Carta was a peace treaty between King John and the barons, and in many ways a financial one at that.
Jane Frecknall-Hughes, Professor of Accounting and Taxation, University of Hull
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/42368
2015-05-26T14:32:14Z
2015-05-26T14:32:14Z
Scrapping the Human Rights Act would be an anti-Magna Carta moment for Britain
<figure><img src="https://images.theconversation.com/files/82931/original/image-20150526-24757-l6zdtz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Proud justice. But for how long?</span> <span class="attribution"><span class="source">Ben Sutherland</span>, <a class="license" href="http://creativecommons.org/licenses/by-sa/4.0/">CC BY-SA</a></span></figcaption></figure><p>Britain should be proud of its human rights history – from the Magna Carta in 1215, through the Bill of Rights in 1689, to taking a lead in drafting the European Convention on Human Rights, Britain has demonstrated a belief in human rights and a strong commitment to strengthening their reality.</p>
<p>But the proposal to scrap the <a href="http://www.equalityhumanrights.com/your-rights/human-rights/what-are-human-rights/human-rights-act">Human Rights Act (1998)</a>, which features in the Queen’s Speech, risks destroying this proud legacy in favour of political expediency. Antipathy towards Europe threatens to undermine our centuries-old commitment to human rights and our international reputation and standing. </p>
<p>Human rights are not always popular – they do not pick and choose their beneficiaries. Everyone: the soldier, the refugee, the hospital patient and the newspaper editor alike, is endowed with human rights simply because we are human. Human rights really are universal.</p>
<p><a href="https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/263526/rights.pdf">Bringing Rights Home</a> through the Human Rights Act was a logical and powerful step. There was time lag of almost two years before the act came into force to give our public services and our courts the time they needed to make sure that human rights were properly understood and embedded in all that they do. </p>
<p>Every individual in the United Kingdom should be able to enforce their human rights through the country’s own laws and in its own courts so that remedies are swift and effective.</p>
<h2>Building a fairer society</h2>
<p>It is through the act that the vulnerable, the dispossessed and the bereaved can hold the authorities and public services to account. The Human Rights Act is about achieving a fairer society and mutual respect for ordinary people.</p>
<p>None of us can anticipate when we might need our human rights. If the police ignore our cries for help, if children are neglected by social services or wrongfully separated from their parents, where young people are left to fend for themselves and allowed to be targeted by paedophile gangs, we can call our public services to account through the law.</p>
<figure class="align-left ">
<img alt="" src="https://images.theconversation.com/files/82950/original/image-20150526-24760-1lp3oyo.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/82950/original/image-20150526-24760-1lp3oyo.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=600&fit=crop&dpr=1 600w, https://images.theconversation.com/files/82950/original/image-20150526-24760-1lp3oyo.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=600&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/82950/original/image-20150526-24760-1lp3oyo.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=600&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/82950/original/image-20150526-24760-1lp3oyo.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=754&fit=crop&dpr=1 754w, https://images.theconversation.com/files/82950/original/image-20150526-24760-1lp3oyo.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=754&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/82950/original/image-20150526-24760-1lp3oyo.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=754&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Where it all began: Magna Carta.</span>
<span class="attribution"><a class="source" href="https://www.flickr.com/photos/etee/12603635674/in/photolist-kcJVMm-9w6Hkq-9w3Tdg-anGABX-pUv6tn-oD9PbD-7HeuMS-7HeuHu-p9ziJt-p9ziJi-8GKhzi-8pGLrH-9w3zUx-5neeWy-dnYUxM-7SuEsM-8pKXsS-8pBDyy-hotPv-9L8NhN-G4zrH-4n17Kg-4n16VR-4n54vU-4n58KW-4n14MB-qMmVQx-bYjWYY-54rC78-8q4mz4-bYjTAU-ffnnRb-r4PxFt-r4PxpB-r4JEQf-q82uzx-8pGSwX-5SeZxN-r76t9L-8pGLwa-seekvn-qMfVVq-q82ukK-qMfVCm-rwhqXe-4uumsR-aShchB-9w3zUt-3xX3aS-8pKRKy">etee</a>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span>
</figcaption>
</figure>
<p>If we are a member of a minority group we can challenge discriminatory treatment; one of the <a href="http://www.independent.co.uk/news/uk/crime/landmark-as-gay-couples-win-equal-rights-on-tenancy-126516.html">earliest landmark judgments</a> recognised equality for gay couples when one partner has died and is threatened with eviction from the home they built together. This was not about special treatment, it was about eliminating discrimination. </p>
<p>A bereaved parent whose adult child commits suicide while on ill-advised home leave from hospital can challenge the wisdom of medical decision-making – all through the Human Rights Act. As <a href="http://www.bailii.org/uk/cases/UKHL/2007/53.html">Baroness Hale said</a>, it may be in practice that the people who have had most need of it are “out of the ordinary”, but the point is that it is there for all of us as we go about our everyday lives.</p>
<h2>Justice should begin at home</h2>
<p>With its strongly libertarian tradition, we can be confident that English common law will protect our right to be free from wrongful interference by the state. It is the 250th anniversary of the great case of <a href="http://www.unistudyguides.com/wiki/Entick_v_Carrington">Entick v Carrington</a> which held that the search of premises could not be justified by state necessity, in other words the state cannot carry out a lawful search if there is no authority to issue a warrant. </p>
<p>But the common law can be muted when we want to assert rights that reflect positive obligations on the part of the state. In an age of austerity, when our public services are under pressure, it is particularly important that we can protect our rights at home rather than having to seek redress in Strasbourg. </p>
<p>The Sunday Times needed to go to the European Court of Human Rights to uphold freedom of the press in its efforts to <a href="http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-57584#%7B%22itemid%22:%5B%22001-57584%22%5D%7D">fight for the rights of the victims of Thalidomide</a>, a process that took several years. The Strasbourg institutions will still be available to anyone in the UK whose rights are violated, but would it not be better that its role were limited to overseeing the implementation of the convention rights by our own courts?</p>
<p>There will be times when the European Court of Human Rights instigates change. But nobody now questions that it is right that gay men and women can openly serve in the British military following the 2002 decision in <a href="http://archive.equal-jus.bispecialist.net/146/1/ECHR%2C_Smith_and_Grady_v._United_Kingdom%2C_no._33985%3A96_and_33986%3A96_%5B1999%5D.pdf">Smith & Grady v the United Kingdom</a>, or that all separated fathers, married or unmarried, are treated alike.</p>
<p>We need access to remedies for breaches of human rights in our own courts – the Human Rights Act made this a reality. Without the act, many people would not have been able to shine a light as swiftly or as readily in the darker corners of our public services. Whatever the shape of human rights in the future, an effective domestic remedy must be at the heart of the United Kingdom’s obligation to ensure rights for all.</p><img src="https://counter.theconversation.com/content/42368/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>
Citizens need to be able to seek remedies for breaches of human rights in our own courts.
Jane Wright, Professor of Law, University of Essex
Geoff Gilbert, Professor of Law, University of Essex
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/38807
2015-03-16T12:21:05Z
2015-03-16T12:21:05Z
From fascism to parking tickets – some odd Magna Carta moments
<figure><img src="https://images.theconversation.com/files/74809/original/image-20150313-7064-ey6rg1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Invoking Magna Carta in 1817.</span> <span class="attribution"><span class="source">© British Museum</span></span></figcaption></figure><p>Eight hundred years after King John made history when he fixed his seal to the Magna Carta, the public is being re-introduced to one of the most famous documents in political history. </p>
<p>For two days in February, for the first time ever, the <a href="http://www.theguardian.com/books/2014/oct/08/four-copies-magna-carta-british-library">four surviving copies</a> were briefly assembled in the same place at the same time – and the British Library’s major new exhibition <a href="http://www.bl.uk/events/magna-carta--law-liberty-legacy">Magna Carta: Law, Liberty, Legacy</a> has just opened to the public.</p>
<p>But as one of the exhibition’s curators, I’ve been steeped in all things Magna Carta for the past four years, choosing the exhibits, negotiating the loans, writing the catalogue and the labels. Curating this exhibition on the 800-year history of one of the world’s most famous documents has enabled me to explore new topics and epochs and to encounter numerous fascinating insights into the story of Magna Carta.</p>
<p>Many visitors to the exhibition will doubtless have their heads turned by the American Declaration of Independence (written by Thomas Jefferson himself) or the United States Bill of Rights, neither of which have visited Britain before. Others may be more intrigued by King John’s teeth, removed from his tomb at Worcester Cathedral in 1797, which we have on display alongside part of the king’s shroud and a fragment of his leather shoe. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/74810/original/image-20150313-7090-17g9e7g.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/74810/original/image-20150313-7090-17g9e7g.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/74810/original/image-20150313-7090-17g9e7g.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/74810/original/image-20150313-7090-17g9e7g.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/74810/original/image-20150313-7090-17g9e7g.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/74810/original/image-20150313-7090-17g9e7g.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/74810/original/image-20150313-7090-17g9e7g.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">King John’s teeth and thumb bone.</span>
<span class="attribution"><span class="source">Worcester City Art Gallery & Museum</span></span>
</figcaption>
</figure>
<p>But it’s the lesser-known stories that have particularly intrigued me as I’ve collected any and all references to this most revolutionary of documents.</p>
<p>Would you have thought, for example, that this 1215 document was still being called upon at the time of World War II? By the British Union of Fascists (BUF)? No, I didn’t either. In 1939, the British government had introduced Defence Regulation 18B, which provided that persons deemed to be a threat to national security could be detained indefinitely. Among those imprisoned were Oswald Mosley, leader of the BUF, and his wife, Diana, one of the storied Mitford sisters. </p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/74812/original/image-20150313-7087-1wi4zaj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/74812/original/image-20150313-7087-1wi4zaj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/74812/original/image-20150313-7087-1wi4zaj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=781&fit=crop&dpr=1 600w, https://images.theconversation.com/files/74812/original/image-20150313-7087-1wi4zaj.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=781&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/74812/original/image-20150313-7087-1wi4zaj.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=781&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/74812/original/image-20150313-7087-1wi4zaj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=982&fit=crop&dpr=1 754w, https://images.theconversation.com/files/74812/original/image-20150313-7087-1wi4zaj.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=982&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/74812/original/image-20150313-7087-1wi4zaj.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=982&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">First known portrait of King John, 1620.</span>
<span class="attribution"><span class="source">© National Portrait Gallery</span></span>
</figcaption>
</figure>
<p>Diana Mosley’s mother, Lady Redesdale, wrote a letter of protest to Lord Cranborne, secretary of state for dominion affairs, in which she stated that Defence Regulation 18B had “broken the Constitution” and “broken Magna Carta” by taking away an Englishman’s right to trial. Of course, in Cranborne’s opinion, releasing Diana and Oswald Mosley was out of the question, and they remained in prison until 1943. </p>
<p>Something else that particularly catches my attention is a fascist pamphlet dating from the same period, entitled Magna Carta in the Dustbin, published at Half Moon Cottage, Little Bookham, by Count Potocki, the self-styled King of Poland.</p>
<h2>Built-in obsolescence</h2>
<p>Another less well-known fact is how little of Magna Carta remains valid today, at least in UK law. Magna Carta is sometimes cited in court cases, but more often as a rhetorical flourish. The vast majority of its provisions were repealed by parliament from 1828 onwards. </p>
<p>Only three clauses of the <a href="http://www.bl.uk/magna-carta/articles/the-clauses-of-magna-carta">original Magna Carta</a> remain on the statute book, namely those protecting the liberties of the English Church and the liberties of the city of London and other towns, ports and boroughs. But, of course, there’s also the most famous clause of all, which effectively states that: </p>
<blockquote>
<p>No man can be arrested or imprisoned save by the lawful judgement of their equals or by the law of the land. To no one shall we sell, deny or delay right or justice. </p>
</blockquote>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/74813/original/image-20150313-7039-10ko6sk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/74813/original/image-20150313-7039-10ko6sk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/74813/original/image-20150313-7039-10ko6sk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=414&fit=crop&dpr=1 600w, https://images.theconversation.com/files/74813/original/image-20150313-7039-10ko6sk.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=414&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/74813/original/image-20150313-7039-10ko6sk.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=414&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/74813/original/image-20150313-7039-10ko6sk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=520&fit=crop&dpr=1 754w, https://images.theconversation.com/files/74813/original/image-20150313-7039-10ko6sk.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=520&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/74813/original/image-20150313-7039-10ko6sk.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=520&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Magna Carta, London copy, 1215.</span>
<span class="attribution"><span class="source">© British Library</span></span>
</figcaption>
</figure>
<p>The reason that so much of Magna Carta has been repealed is that much of it related to obsolete medieval customs such as forestry and fishing rights, and of course many of what – at the time – were ground-breaking legal rights have since been overtaken by more modern legislation. This might come as a shock to those correspondents who frequently contact the British Library seeking to discover if Magna Carta can be used to overturn parking tickets issued in the city of Westminster. The answer, somewhat unsurprisingly, is that Magna Carta, despite its symbolic status in English and global legal history, does not have magic powers to secure the waiver of such fines.</p>
<p>So the Magna Carta, as well as having a long and prestigious history, has also been invoked in some very strange situations. Above all, what this shows is the overwhelming symbolic status that this document drawn up by medieval barons has garnered. Despite being 800 years old, many people over the ages have seen it as the source of their freedom from everything, whether that be death or a parking ticket.</p>
<hr>
<p><em><a href="http://www.bl.uk/events/magna-carta--law-liberty-legacy">Magna Carta: Law, Liberty, Legacy</a> is on at the British Library until 1 September 2015.</em></p><img src="https://counter.theconversation.com/content/38807/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Julian Harrison works for the British Library.</span></em></p>
In its 800-year history, the revered document has been called upon in interesting ways.
Julian Harrison, Curator of Early Modern Manuscripts, British Library
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/37246
2015-02-09T05:46:45Z
2015-02-09T05:46:45Z
Thoughts about Magna Carta, inspired by Horrible Histories
<figure><img src="https://images.theconversation.com/files/71322/original/image-20150206-28615-58cgo1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">You don't wanna mess with crooked King John.</span> <span class="attribution"><span class="source">BBC/Lions TV</span></span></figcaption></figure><p>The British Library has just staged an <a href="http://www.theguardian.com/books/2015/feb/02/british-library-magna-carta-copies-800">exclusive one-day exhibition</a>. The four earliest surviving copies of the original Magna Carta were brought together for an audience of 1,215 people, selected by public ballot. The BBC, meanwhile, have brought the theme of King John and Magna Carta to a different, wider, and predominantly younger audience. The Horrible Histories team is back, in style.</p>
<p>Fans of the series know what to expect here, with all the boxes ticked when it comes to burping, farting, vomiting, gags (good, bad, and ugly) and plenty of violence to boot.</p>
<p>A lot is certainly packed in. We hear about John’s lousy reputation before he became king. His father, Henry II is said to have jokingly nicknamed him Lackland at a time when there was seemingly no inheritance for his youngest son, and this prompts quite a laugh. </p>
<p>There’s a reference to Gerald of Wales’s tale that the teenage John pulled the beards of the Irish chieftains when sent to Ireland in 1185. Whether or not this actually happened, the expedition was generally deemed a disaster. And too good a story to pass up.</p>
<p>We learn of John’s coronation in 1199, before digressing to earlier events in the Holy Land. Here, we meet a caricature of Saladin and the Battle of Hattin, which paved the way for the fall of Christian-held Jerusalem in 1187, and prompted men like Richard the Lionheart to go on crusade.</p>
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<img alt="" src="https://images.theconversation.com/files/71335/original/image-20150206-28612-1hmd5z2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/71335/original/image-20150206-28612-1hmd5z2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=514&fit=crop&dpr=1 600w, https://images.theconversation.com/files/71335/original/image-20150206-28612-1hmd5z2.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=514&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/71335/original/image-20150206-28612-1hmd5z2.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=514&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/71335/original/image-20150206-28612-1hmd5z2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=645&fit=crop&dpr=1 754w, https://images.theconversation.com/files/71335/original/image-20150206-28612-1hmd5z2.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=645&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/71335/original/image-20150206-28612-1hmd5z2.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=645&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">Ben Miller as King John.</span>
<span class="attribution"><span class="source">BBC/Lion TV</span></span>
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<h2>Luxury and kingship</h2>
<p>John’s taxation of his subjects is to the fore. We are told:</p>
<blockquote>
<p>He lived a life of luxury,<br>
That’s what his tax was for</p>
</blockquote>
<p>Well, not really. Most of John’s revenue raising was intended to raise sums to pay for an army (primarily mercenaries) to retake the lands he had lost in France. But it’s true he didn’t get very far with the cash he gained.</p>
<p>Besides, medieval writers tended to understand that kings needed to be seen to be rich. John’s son and successor, Henry III, was even criticised, by the 13th century monk and chronicler Matthew Paris, for attempted austerity:</p>
<blockquote>
<p>The lord king, shamelessly departing from his father’s [John’s] footsteps, ordered the expenses of his court and the customary pleasures of hospitality to be cut back, even so as to incur the reproach of inexcusable avarice.</p>
</blockquote>
<p>That said, Horrible Histories shows an eye for finer detail. John did travel his kingdom extensively, changing location, on average, once every three days across a reign of over 17 years. And the royal household did include people specifically responsible for the king’s bed, bath and toilet.</p>
<h2>Magna Carta, 1215</h2>
<p>And then the famous events at Runnymede in 1215 come to the fore. The barons declare that they have “written a list of grievances … for the Magna Carta” because they’re “really ticked off, big time”. Here, we might note that the document was not initially thought of as “Magna Carta”. The barons themselves drew up a list known as “the articles of the barons”. The name Magna Carta was not applied until 1217, to distinguish what remained of the charter of liberties agreed at Runnymede from a separate document relating to the Royal Forests.</p>
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<p>Debate about the content of what became Magna Carta takes the form of a rap battle. Why not? Initially, they avoid the time-honoured misconception that King John “signed” Magna Carta in the way we today would sign a letter, document, or cheque. The barons demand the king to “hit it with your seal and give us our rights”.</p>
<p>The effect, however, is somewhat spoilt by a baron waving a quill pen as if to sign the document spread on the table. Later, in John’s interview with Death, there are repeated references to Magna Carta as a “piece of paper” signed by the king. The comic effect of John comparing it to toilet-roll fits the style of the programme. Yet this was a document drawn up on parchment and authenticated by the addition of the king’s seal, not by him signing his name.</p>
<p>Although humour is at the fore, there is nonetheless emphasis on the overall significance of Magna Carta: “For the first time in history, the king had to follow the law.” The balance of fundamental rights a king should guarantee, alongside clauses linked to matters of immediate grievance, is shown in the line:</p>
<blockquote>
<p>There’s vital stuff here that you’ve got to give us.<br>
There’s also some stuff about fishing in the rivers.</p>
</blockquote>
<p>The last part here is an allusion to the removal of fish-weirs (to quote Magna Carta itself) “from the Thames and the Medway and throughout all England, except on the sea-coast”.</p>
<h2>A birthday</h2>
<p>But above all the greatest triumph of the programme lies in conveying the history of Magna Carta since John’s reign in a whistle-stop tour of 800 years of history, set to a reworking of The Proclaimers’ <a href="https://www.youtube.com/watch?v=tbNlMtqrYS0">I’m Gonna Be (500 miles)</a>. As the team tell us:</p>
<blockquote>
<p>Magna Carta<br>
It’s a parta<br>
What you’re taught at school</p>
</blockquote>
<p>Music – a much under-rated means of learning – here sums up, in about three minutes, what might take hours in the schoolroom, and volumes of academic books. Horrible Histories successfully conveys the significance of their theme:</p>
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<blockquote>
<p>And I would say 800 years,<br>
A birthday worth 800 cheers<br>
Since 1215 Magna Carta’s been<br>
The foundation of our democracy … </p>
<p>And I would hope 800 years<br>
Of freedom never disappears<br>
All hale this simple ancient law<br>
May it survive 800 more!</p>
</blockquote>
<p>Cheers to that.</p><img src="https://counter.theconversation.com/content/37246/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Paul Webster has in the past received funding from the AHRC.</span></em></p>
The British Library has just staged an exclusive one-day exhibition. The four earliest surviving copies of the original Magna Carta were brought together for an audience of 1,215 people, selected by public…
Paul Webster, Teaching Associate in History, Cardiff University
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/36025
2015-01-12T14:15:52Z
2015-01-12T14:15:52Z
Bad King John: a rubbish reign which produced some good results
<figure><img src="https://images.theconversation.com/files/68577/original/image-20150109-23807-1jvcq2v.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The stock pantomime villain.</span> </figcaption></figure><p>This summer in June, the Queen will retrace King John’s steps along the three-and-a-half miles from Windsor Castle to Runnymede to commemorate the 800th anniversary of the revered document that came to be known as <a href="http://www.bl.uk/magna-carta">Magna Carta</a>. </p>
<p>This celebration of what is now seen as a momentous constitutional event will stand in marked contrast to the atmosphere in 1215. Then, King John made the journey from Windsor to Runnymede as a much-embattled and widely hated ruler seeking to avert (or at least postpone) civil war.</p>
<p>Magna Carta has subsequently been celebrated as a guarantor of fundamental rights and freedoms. The most famous clauses promise a free man “the lawful judgement of his peers or of the law of the land”, and undertake that “to no one will we sell, to no one will we deny or delay right or justice”. </p>
<p>Yet, the 1215 charter was in no way designed to set out far-sighted principals establishing the rights of man. Instead, the barons gathered at Runnymede had more immediate priorities: to deal with the problem of King John.</p>
<h2>Poor start – then it all went downhill</h2>
<p>John was far from being a successful king. He had trouble even before the start – his right to rule was not entirely clear-cut. The right to succeed Richard I (the Lionheart) was not only claimed by his brother John but also by their nephew, Arthur of Brittany. </p>
<p>After overcoming this threat – and following his capture of Arthur in 1202 (and subsequent presumed murder), John succeeded only in stirring up revolt in his continental lands (which extended through western France, from the English Channel coast to the Pyrenees), losing control of all but Aquitaine. </p>
<p>Forced therefore to spend much more time than his immediate predecessors in England itself, he compounded his issues by falling into a long-running dispute with the church. Here, his effort to assert what he perceived as long-standing royal rights led to the imposition of the severest sanctions that medieval popes could impose: interdict (the cessation of the sacraments) and excommunication (casting the sinner from the Christian flock). </p>
<p>Despite all this, John did not give up on his hope of regaining his territorial losses, raising huge sums to pay for a campaign that eventually took to the field in 1214: only to meet with defeat when the king’s army refused to fight for him (in Poitou), and his allies were destroyed at the Battle of Bouvines (in northern France).</p>
<h2>Lousy king, able administrator?</h2>
<p>So not a great record. Accordingly, it is tempting to conclude that John was a weak king, and many have done so. The image of “bad King John” has trundled on these past 800 years, both in historical writing and popular culture. Many of us get our first image of John from AA Milne: “King John was not a good man, he had his little ways”.</p>
<p>But actually John was far from weak. In many ways, he was one of the strongest rulers to occupy the English throne. Brought up in the household of one of his father’s chief officials, Ranulf de Glanville, John was schooled, and for much of his career worked alongside some of the great administrators of the day. He had an eye for bureaucratic detail – and indeed some historians, for instance Lewis Warren, and most recently <a href="http://www.historytoday.com/graham-e-seel/good-king-john">Graham Seel</a>, have argued that the ways in which he developed government do not make him such a wholly “bad” king.</p>
<p>John ruthlessly pushed the machinery of government as hard as he could. The result was a system of justice, administration, and revenue-raising designed, developed, and exploited to accumulate the maximum sums possible. In part, this built upon methods employed by John’s father, Henry II, and his brother, Richard I. Ruthless he may have been, but “weak”, the marker of an inherently bad king, he was not.</p>
<p>In this way, historians have argued that Magna Carta was in part a judgement on some 60 years of Plantagenet royal rule. But of course, it was imposed on John, and not on his father or brother, a fact which speaks volumes about just how bad he was. He drove the system further and harder than it had ever been before, resulting in fear, mistrust, and mounting baronial debt. All this overseen by a king who was not delivering the sort of military success that might either have redeemed his reputation or made him seem invincible.</p>
<p>So, even if John was an able administrator, he did not seem to understand the need to limit his demands. Nor did he consult widely in determining his policies. Coupled with his military failures, he succeeded only in appearing treacherous, exploitative and unsuccessful.</p>
<h2>End of their tether</h2>
<p>The barons assembled at Runnymede wanted to make a statement that enough was enough. They sought limits to specific ways in which their king would take money from them. They wanted their affairs to be dealt with fairly in the royal courts. In doing so they took an important step in establishing the idea that the king should not be above the law. </p>
<p>But in the prevailing atmosphere of distrust in 1215, it is perhaps unsurprising that the June agreement lasted only a few weeks before it collapsed. Civil war ensued. The rebel barons took the unprecedented step of offering the throne of England to a French prince: Louis, son and heir of the French King Philip II, invaded England at the head of an army.</p>
<p>John died in October 1216. The evolution of Magna Carta in the following decade sealed John’s posthumous image as a tyrant. The document was re-issued (in 1216, 1217, and 1225) and reinvented as a means of recovering and restoring faith in royal government, under John’s heir, Henry III, who came to the throne aged just nine, and whose supporters succeeded in defeating the French invaders.</p>
<p>Those who looked back on the reign in the decade, generation, and then centuries that followed, increasingly came to see Magna Carta as a defining stand against tyranny. It even became possible to argue that “bad” kings were a necessary evil, because their rule sparked “good” constitutional developments. But the disaffected barons assembled at Runnymede 800 years ago, driven to impose constraints on their king, would hardly have agreed.</p><img src="https://counter.theconversation.com/content/36025/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Paul Webster has in the past received funding from the AHRC.</span></em></p>
This summer in June, the Queen will retrace King John’s steps along the three-and-a-half miles from Windsor Castle to Runnymede to commemorate the 800th anniversary of the revered document that came to…
Paul Webster, Teaching Associate in History, Cardiff University
Licensed as Creative Commons – attribution, no derivatives.