MAGNA CARTA 1215: Parallels and Influences
MAGNA CARTA 1215: PARALLELS AND INFLUENCES
Limiting the Arbitrary Power of Government and Instituting the Liberties of Man as a Process (800th Anniversary of Magna Carta)
(Ljubljana, October 22 2015)
St. Georgenberg 1186 as the beginning of the inneraustrian leges fundamentales
(Gernot Kocher, Graz)
Regardless of the particular causes for their coming into the existence (dynastic order of succession or the securing the rights of the leading social strata), the formative context for such documents as the Georgenberger Pact 1186 or the Magna Carta 1215, as well, has its roots already in the Early Middle Ages. They arise from the tensions between political groupings: the ruler on one side, and the “potentes” or the “maiores” of the Early Middle Ages, on the other – something that is incorporated in the designation “pacta” of the early medieval sources (e. g. Pactus Alamannorum). In the course of the Middle Ages, from the “potentes” the so called Estates (Landstände) were formed, which remained in existence until the 19th century, albeit with their powers slowly waning. The constitutional movements of the 19th century together with parliamentary ones were therefore just another outward transformation of this same old tension – the determinative constitutional factors in the sense of the fundamental rules of the game for the peaceful coexistence stay the same: the continuity of government and the securing of interests of different social groupings.
The textual modifications over the course of centuries show that the Georgenberger Pact was without a doubt politically – or better still, politically and constitutionally – important piece of paper. From the first half of the 16th century, the designation “Landeshandfeste” started to prevail for it and for the other numerous constitutionally relevant rules and regulations pertinent to the Estates that later followed. This conglomerate of norms, which over time came to incorporate also many that fell out of use or became irrelevant, was being published by the Estates well until the middle of the 19th century and got their confirmation from the territorial princes (Landesfürsten) over and over again until the reign of Charles VI.
The expression “Handfeste”/”Landeshandfeste” got its name from the confirmation proceedings whereby a territorial prince placed his right hand, used otherwise in swearing of oaths (i. e. Schwurhand) onto the collection of charters of liberties (“Freiheitsbriefe”) – lat. manu firmare, i. e. confirmation by placing of a hand –, making thus a gesture of a “Handfest”. This kind of an act of confirmation was frequently connected with the handing over of the documents. Such official confirmation of the collection of the charters of liberties was a precondition for the Estates of the Land to grant their homage and thus for a proper foundation for a territorial prince’s lordship (“Landesherrschaft”) in accordance with the law and custom of the land.
The designation of the charters of liberties, officially confirmed by a “Handfest”, as leges fundamentales by Nicolaus Beckmann in his Idea Iuris (1688) raises the question whether the content of the Georgenberger Pact – it being at the very beginning of such conglomerate of norms – really deserves such a classification.
The document of the Pact itself did not entail any collective name for its rules, confined to writing from that time on. From their first confirmation by Emperor Frederik II. in 1237 until the one by the Duke Ernst, they were being referred to as “consuetudines approbatas et iura”. It was only in 1414, in the confirmation charter of the Duke Ernst that the collective designation changed significantly: “Privilegia, libertates, immunitates & approbatas consuetudines” – the “iura” disappeared and were replaced by three expressions, the meanings of which all pointed into the direction of “exemption, specific characteristics”. In fact, these rules that the Styrian Estates got confirmed in 1414, and which were taken over in part in Carniola and fully in Carinthia, as well, were not incorporated into the collections of later statutes and other written rules of historic lands. This brings them nearer to the fundamental rights and liberties at the turn of the 18th into the 19th century, with their focus on the liberties of a person and property.
The ideas and points of comparison with the Georgenberger Pact are to be found in norms regulating personal status with the securing the freedom of contracting a marriage between Styrians and Austrians together with a freedom of choice of residence (i.e. in Styria or in Austria), as well as in the freedom of choice of a partner (albeit within one’s social stratum), in the equal treatment of men and women in the context of the Estates’ inheritance law, further, in the norms granting the right to legal proceedings that treat the matter in substance together with the exclusion of the trials of judgement by battle and with the exclusion of an arrest without a trial or a confession. Broader are the guarantees in the direction of land rights: free disposing of land among the living as well as the choice of disposing of it in the last will or following the established order of succession, a guarantee of unaltered usage rights (leasehold) of a vassal under a new lord and several other guarantees related to property (no new taxation, declaring of coinage invalid only with a cooperation of the Estates, no altering of the custom duties in the sense of upholding their amount from the time of Duke Leopold).
All this shows that the assessment by Beckmann of the Styrian “Landeshandfeste” as leges fundamentales in the headline of one of the paragraphs of his work (part L, p. 262) was justified in the same way as the inclusion of the Georgenberger Pact in the program of a symposium dedicated to the English Magna Carta.
Carniolan Charters of Liberties
(Andrej Nared, Ljubljana)
123 and 150 years after the first issue of Magna Carta, the Carniolans, or more accuretly, the nobility of the three territorial conglomerates that by the start of the early modern times merged in the Habsburg province of Carniola, received their first Charters of rights and privileges as well. The law of the province of Carniola – similar to that of Styria and Carinthia – was from the mid-14th century on symbolized by Charters, referred to also as the privileges of the land or Landhandfeste. The Carniolan Charter of rights and liberties of Duke Albrecht II from 1338 had the characteristics of 'constitutional', penal and private law and also included provisions of a general nature designed to apply to the entire population, not only to the privileged nobility. It was a kind of a basic law of the land. The Charter confined to writing the already existing unwritten customs and laws of the land of Carniola, supplementing it with the Styrian legal norms. It governed feudal relations, outlining the proprietary, civil, criminal and judicial system. The Charters of the Gorizia nobility from 1365 were the basic legal documents of the County in March and Metlika and of the County of Istria, regulating issues concerning judiciary, feudal, hereditary and property-law relations as well as military duty. When the property of the Gorizia Counts in Carniola came under the rule of the Habsburgs, the 'Gorizia' law became the Carniolan law as well. In general, there was a growing tendency to bring about a basic legal unification of rather heterogenous Inner Austrian lands.
Mythical Constitutionalism: Magna Carta’s Anniversary and the Historical Argument
(Miloš Vec, Vienna)
My talk will not deal with the historical record from 1215 itself. Instead I will focus on Magna Carta Reception in 19th Century Germany political writing. My sources are mainly entries in Encyclopedia and similar works on the constitutional history of England. How was it perceived and which rhetoric and political role played Magna Carta there? I take evidence also from German Staatsrecht (political law) and Staatswissenschaften in a Century in which constitutional struggles and the call for Rechtsstaat reached its peak on the continent. The analysis will bring me to the role of the historical argument. As a legal historian I will remind us of the changing semantics of “Verfassung” (constitution) and the narratives connected with the emergence of this fundamental concept of law and politics in modernity.
Magna Carta in English law today
(Veronika Fikfak, Cambridge (UK))
Magna Carta has been described as the most important single document in the development of constitutional and legal freedom and adherence to the rule of law in the common law world. The paper will examine whether and how the medieval statute has been enforced in English courts during modern times and what role it currently serves in the constitutional law of the United Kingdom. In this regard, the paper will look beyond what the text of the Magna Carta actually said and investigate what later generations claimed and believed it had said. It will explore the myth of the Magna Carta, which as Lord Bingham suggested is sometimes “more important than the actuality”.
Human Rights and Development: A Critical Appraisal of New Human Rights "Revisionism"
(Bojan Bugarič, Ljubljana)
In recent years, international human rights regimes have come under attack from all sides. For instance, in his Twilight of Human Rights Law, Eric Posner argues that “[h]uman rights law has failed.” Using the example of the new authoritarian regime in Hungary, Posner argues that “if Europeans cannot even compel a small, financially dependent country in their midst to comply with human rights, then one must infer that they do not care enough about human rights to devote substantial resources to them.” Samuel Moyn, on the other hand, criticizes the individualistic nature of human rights: they come at the expense of better protection of the economic and social well-being of citizens, objectives which can only be achieved through direct political mobilization. While these and similar criticisms of human rights law have to be taken seriously, I argue they do not pay enough attention to the more recent critical approaches to the subject, which are cognizant of the relevant social and political contexts and explore the ways in which human rights law can sometimes disrupt the ideological or institutional status quo and set transformative dynamics in motion.
Today’s Europe and its Magnae Cartae
(Samo Bardutzky, Kent)
The honourable anniversary of the Magna Carta is an opportunity to discuss what it is that protects the citizens of Europe from excesses and abuses of public power. The question becomes all the more topical as the power to regulate the lives of the individuals is increasingly transferred to sites that are far or even beyond the sight of the affected. But as the new structures of law and governance prove structurally unfit for an exercise of political accountability, the focus turns to constitutional norms in hope that they can ensure that the decision making is held to certain standards. The questions whether catalogues of fundamental rights and constitutional principles are needed or what they should include seem to have been resolved now; in the plurality of existing sources, the pertinent questions seem to be rather what role they should be given and in what relationship they should stand to one another. Alongside come the institutional counterparts of these dilemmas: what of courts that operate using these different sources and come to different conclusions? While these questions started to gain relevance at the turn of the century with the European integration expanding into an ‘area of freedom, security and justice’, they have reached unprecedented dimensions with the outbreak of the financial crisis and the novel approaches to law and governance in trying to find a response to it. Today’s Europe is to a certain extent a continent of crisis constitutionalism; and its Magnae Cartae need new vigour if they are to continue shielding the individual as they were always meant to.
800 years later: the dawn of magna data?
(Mojca M. Plesničar, Ljubljana)
Discussing differences between life in 1215 and life in 2015 seems a parody at first glance. The differences in everyday life, communication, government, security, warfare etc. are so extensive that it seems hardly significant to compare the two periods. Sketching a true picture of life in 1215 is a task for historians, but we commonly take life in 2015 as self-evident. However, there have been intensive changes in recent decades, some of which we are aware of and many of which have managed to slip into our everyday life mostly undetected. We are commonly willing to take that as facts and attribute changes in life and society to the progress of society. However, considering the context of Magna Carta, we still base our fundamental legal and societal norms and principles on ideas developed 800 (and more) years ago, not thinking twice about the implications of historical divergences. While many ideas developed at the time may still be relevant, there might also be some that seem irrelevant, and moreover, many that are lacking. Perhaps the new reality of the age of information demands us to rethink the premises on which we base our society's fundamental principles and attune them to life 800 years later.