National   Society  Magna  Charta  Dames and Barons

FOR THE LAST 42 YEARS MY WIFE AND I HAVE LIVED IN THE LONDON BOROUGH OF PUTNEY. IT IS NOT AN ESPECIALLY DISTINGUISHED BOROUGH. THERE ARE OTHERS BETTER KNOWN - ISLINGTON WHICH HOUSES NEW LABOUR, NOTTING HILL WHICH HOUSES THE LEADERS OF THE TORY PARTY AND IS THE TITLE OF A FILM, KENSINGTON WHICH HOUSES RUSSIAN OLIGARCHS, THE OWNERS OF FOOTBALL CLUBS. PUTNEY HOUSES LAWYERS AND ACCOUNTANTS AND IS BEST KNOWN BECAUSE THE OXFORD/CAMBRIDGE BOAT RACE STARTS AT PUTNEY BRIDGE.

BUT PUTNEY OUGHT TO BE BETTER KNOWN. BECAUSE, IN THE CHURCH OF ST. MARY THE VIRGIN, RIGHT NEXT TO PUTNEY BRIDGE, IN 1647, TOOK PLACE THE PUTNEY DEBATES.

THE PARLIAMENT ARMY UNDER CROMWELL HAD JUST WON THE CIVIL WAR AND THEY HAD CAPTURED THE KING. (ACTUALLY HE ESCAPED AND THEY HAD TO FIGHT A SECOND CIVIL WAR, AND THEY CAPTURED THE KING AGAIN AND EVENTUALLY BEHEADING HIM IN 1648.)

HOWEVER, HAVING CAPTURED CHARLES I IN 1647, THE SOLDIERS TURNED THEIR MINDS TO WHAT THEY HAD BEEN FIGHTING FOR. SUCH WAS THE DEMAND FOR THIS TO BE DEBATED, THAT CROMWELL CONVENED A MEETING OF THE ARMY COUNCIL AT THE CHURCH OF ST. MARY THE VIRGIN IN PUTNEY. THE DEBATE CONTINUED OVER SEVERAL DAYS. A DETAILED RECORD SURVIVES. ONE GROUP TAKING PART WAS KNOWN AS THE LEVELLERS AND THEY PUT FORWARD A NUMBER OF RADICAL IDEAS, INCLUDING FREEDOM OF CONSCIENCE AND FREEFDOM OF RELIGION, AND ONE MAN, ONE VOTE. MOST OF THE ARMY LEADERS WERE ON THE OTHER SIDE. THEY ARGUED THAT NO MAN SHOULD HAVE A VOTE WHO DID NOT OWN PROPERTY – AS THEY PUT IT, WHO DID NOT HAVE A "STAKE" IN THE SOCIETY IN WHICH THEY WERE VOTING FOR REPRESENTATION. A MOST IMPRESSIVE CONTRIBUTION TO THE DEBATE CAME FROM COLONEL THOMAS RAINSBOROUGH, A FRIEND OF CROMWELL, A LEADER OF THE SOLDIERS IN BATTLE, A MEMBER OF THE PROPERTIED CLASS WHO, NEVERTHLLESS, CLEARLY HAD AN OPEN MIND AND WAS INFLUENCED BY THE DEBATE. HIS CONTRIBUTION TO THE DEBATE ACTUALLY IS PRINTED ROUND THE TOP OF THE WALLS IN THE CHURCH TODAY - IN HIS OWN WORDS.­

"I THINK THAT THE POOREST HE THAT IS IN ENGLAND HATH A LIFE TO LIVE, AS THE GREATEST HE, AND, THEREFORE, TRULY SIR. I THINK IT IS CLEAR THAT EVERY MAN THIAT IS TO LIVE UNDER A GOVERNMENT OUGHT FIRST BY HIS OWN CONSENT TO PUT HIMSELF UNDER THAT GOVERNMENT; AND I DO THINK THAT THE POOREST MAN IN ENGLAND IS NOT BOUND IN A STRICT SENSE TO THAT GOVERNMENT THAT HF HATH NOT HAD A VOICE TO PUT HIMSELF UNDER."

IN SIMPLER ENGLISII: - "EVEN THE POOREST MAN CANNOT BE EXPECTED TO ACCEPT A GOVERNMENT IF HE IS NOT EVEN ALLOWFD TO VOTE FOR IT."

CROMWELL, LIKE MOST REVOLUTIONARIES, WAS NO DEMOCRAT. HE SIDED WITH THE ARMY LEADERS. WITHIN A YEAR, RAINSBOROUGH WAS DEAD. ONE STORY WAS THAT CROMWELL ARRANGED HIS MURDER, BUT IT IS GENERALLY ACCEPTED THAT HE WAS KILLED BY THE KING'S SUPPORTERS DURING THE SECOND CIVIL WAR BEFOR.E CHARLES WAS RECAPTURED. ANYWAY, IT WAS NEARLY 300 MORE YEARS BEFORE UNIVERSAL SUFFRAGE WAS INTRODUCED IN ENGLAND.

OF COURSE, WHEN RAINSBOROUGH TALKED ABOUT ONE MAN, ONE VOTE, HE MEANT EXACTLY - THAT - ONE MAN, ONE VOTE. IT TOOK MANY, MANY MORE YEARS BEFORE IT WAS FINALLY ACCEPTED - IN THE 1920S - THAT WOMEN TOO SHOULD HAVE A VOTE.

NOW, WHY DO I TELL YOU ALL THIS? BECAUSE, ABOUT 20 YEARS AGO, THE AMERICAN BAR ASSOCIATION HELD ITS ANNUAL CONFERENCE IN LONDON. AND PART OF THE CELEBRATIONS WAS A KIND OF "PILGRIMAGE" TO RUNNYMEDE. I DO NOT HAVE TO EXPLAIN T0 YOU WHY THEY CHOSE TO VISIT RUNNYMEDE, WHICH IS A RATHER BORING BIT OF MARSH MUCH FURTHER OUTSIDE LONDON THAN PUTNEY. BUT IT IS MY CONTENTION THAT, IN THE HISTORY OF THE DEVELOPMENT OF IMPORTANT IDEAS, THE PUTNEY DEBATES SHOULD HAVE AT LEAST EQUAL STANDING WITH MAGNA CARTA. AND THE ABA OUGHT TO HAVE INCLUDED PUTNEY IN THEIR "PILGRIMAGE", WHICH THEY COULD EASILY HAVE DONE, EITHER ON THE WAY TO RUNNYMEDE OR ON THE WAY BACK. THEY COULD HAVE VISITED BOTH IN THE SAME JOURNEY BY BOAT.

THE PARALLELS BETWEEN THE PUTNEY DEBATES AND MAGNA CARTA ARE QUITE INTERESTING. BOTH ACHIEVED ABSOLUTELY NOTHING. ALMOST IMMEDIATELY, KING JOHN REPUDIATED MAGNA CARTA. THE POPE EXCOMMUNICATED THOSE WHO FORCED HIM TO SIGN IT – YOUR ANCESTORS. ALTHOUGH KING JOHN DIED SOON AFTER, THE BARONS WERE BACK FIGHTING UNDER SIMON DE MONTFORT FORTY YEARS LATER FOR EXCATLY THE SAME RIGHTS AND THEY DIDN’T GET THEM THEN EITHER. COMPARE IN 1647 THE SOLDIERS DID NOT GET THE VOTE. INSTEAD THEY GOT CROMWELL. THEY DID SUCCEED IN GETTING RID OF THE KING, ONLY TO GET HIS SON BACK AS KING JUST 12 YEARS LATER.

GETTING RID OF KINGS WAS A HUGE AND DIFFICULT STEP. IT DID NOT JUST LEAVE A MIGHTY VACUUM AT THE TOP. IT BREACHED VERY LONG AND DEEPLY HELD RELIGIOUS AND POLITICAL VIEWS ABOUT THE PROPER ORDER OF SOCIETY. THE FRENCH ONLY MANAGED TO DO IT 150 YEARS LATER. THEN THEY GOT NAPOLEON. THEY TOO REVERTED TO A MONARCHY SHORTLY AFTER THAT. AND AS FOR THE RUSSIANS IT TOOK THEM ANOTHER 100 YEARS, AND LOOK AT WHAT THEY GOT AFTER THAT.

YOU, THE AMERICANS, WERE M0RE SUCCESSFUL. ONE CAN ARGUE THAT THE TASK WAS EASIER, BECAUSE THL KING WAS A LONG WAY A WAY, BUT THE REAL SUCCESS IN AMERICA LAY NOT IN GETTING RID OF THE KING, BUI IN MANAGING TO PUT IN HIS PLACE A SYSTEM OF GOVERNMENT WHICH DID NOT INVOLVE ANOTHER FORM OF DICTATORSHIP. INDEED, I WOULD ARGUE THAT THE DECLARATION OF INDEPENDENCE, FOLLOWED BY THE CONSTITUTION, CONSTITUTED THE NEXT MILESTONE ALONG THE WAY TO THE DEVELOPMENT OF A SYSTEM OF GOVERNMENT TO WHICH, NOWADAYS, WE ALL ASPIRE.

WHEN I BECAME PRESIDENT OF THE INTERNATIONAL BAR ASSOCIATION IN 2005, I WAS ALREADY ALARMED BY THE FLAGRANT DISREGARD OF THE RULE OF LAW SHOWN BY YOUR GOVERNMENT AND MINE IN LAUNCHING THE WAR AGAINST IRAQ AND THE SO-CALLED WAR ON TERROR - AND THE METHODS USED TO CONDUCT THOSE WARS. I MADE THE RULE OF LAW THE FOCUS OF MY PRESIDENCY AND, IN THE 4 YEARS SINCE, I HAVE SPENT A LOT OF TIME THINKING ABOUT THE RULE OF LAW AND IN TRYING TO STIMULATE THE WORLD-WIDE LEGAL PROFESSION TO DO THE SAME THING.

THE IDEA OF A SYSTEM OF LAW WHICH GOVERNS EVERYONE, EVEN THE HEAD OF GOVERNMENT, PRESIDENT, MONARCH OR DICTATOR, HAS BEEN AROUND FOR A LONG TIME. YOU CAN ARGUE IT STARTED WITH MOSES BRINGING THE 10 COMMANDMENTS DOWN FROM MOUNT SINAI. THOSE WERE GOD'S LAWS WHICH BOUND ALL, EVEN THE KINGS, SOLOMON AND DAVID. BUT THE IDEA WAS NOT EXCLUSIVELY RELIGIOUS. SOCRATES TOOK THE HEMLOCK (ACTUALLY HE DIDN’T HAVE TO) TO DEMONSTRATE HIS RESPECT FOR THE LAW. BOTH THE GREEKS AND THE ROMANS SHOWED RESPECT FOR THE LAW. ST. PAUL WAS PROUD OF HIS STATUS AS A ROMAN CITIZEN, AND HE WAS PROTECTED BY IT. HOWEVER, IN BOTH GREECE AND ROME, THE PRIVILEGE OF CITIZENSHIP – THE PROTECTION OF THE LAW, - WAS AVAILABLE ONLY TO THE FEW.

MAGNA CARTA WAS THE FIRST STEP IN THE PROCESS OF BUILDING THE MODERN IDEA OF THE RULE OF LAW. IT WAS CARTAINLY NOT PERFECT. IT BENEFITED ONLY THE FEW – THE BARONS. AND IT DID NOT LAST. BUT IT GAVE BIRTH TO SOME OF THE IDEAS WHICH ARE NOW FUNDAMENTAL TO THE CONCEPT OF THE RULE OF LAW - HABEAS CORPUS AND TRIAL BY JURY.

IT IS MY THESIS THAT GOOD IDEAS SURVIVE LONG AFTER THEY HAVE ACTUALLY FAILED TO WORK IN PRACTICE. SO WE MOVED ON FROM MAGNA CARTA TO THE PUTNEY DEBATES AND OTHER IDEAS – VOTES FOR ALL – (MEN) – RELIGION A MATTER OF INDIVIDUAL CONSCIENCE - DISTRIBUTION OF SEATS IN PARLIAMENT ACCORDING TO THE NUMBER OF INHABITANTS, NOT BY OWNERSHIP OF PROPERTY – AND, ABOVE ALL, EQUALITY BEFORE THE LAW. IDEAS ALL GENERATED BY THE PUTNEY DEBATES – THEY GOT NOWHERE. THEN WE MOVED ON AGAIN - TO THE DECLARATION OF INDEPENDENCE - "WE HOLD THESE TRUTHS TO BE SELF-EVIDENT, THAT ALL MEN ARE CREATED EQUAL" ­ A TRUTH EVEN THEN NOT PASSED ON TO THE SLAVES, SO YOU HAD TO FIGHT A CIVIL WAR, BUT THESE IDEAS LED ULTIMATELY TO THE EMANCIPATION OF WOMEN AS WELL THE EMANCIPATION OF SLAVES, AND UNIVERSAL ADULT SUFFRAGE.

THE RULE OF LAW IS THE ONLY SYSTEM SO FAR DEVISED BY MANKIND WHICH PROVIDES IMPARTIAL CONTROL OF STATE POWER. IMPARTIAL CONTROL OF STATE POWER – THAT IS WHAT MAKES IT UNIQUE, AND SO VERY VALUABLE. THE FIRST, STILL VERY INFLUENTIAL STUDY OF THE RULE OF LAW WAS WRITTEN BY PROFESSOR A. V. DICEY IN THE LATE 1880S – AND HE IDENTIFIED THREE KEY ASPECTS OF THE RULE OF LAW:-

FIRST:- THE SUPREMACY OF LAW OVER ARBITRARY POWER

SECOND:- THE EQUALITY OF ALL BEFORE THE LAW, AND GOVERNMENT UNDER THE LAW

THIRD:- THERE IS NO HIGHER LAW OTHER THAN THE RIGHTS OF INDIVIDUALS AS DETERMINED BY THE COURTS.

DICEY'S THIRD PRINCIPLE IS THE ONE THAT CAUSES PROBLEMS AND MANY WOULD ARGUE FOR A WRITTEN CONSTITUTION WHICH DEFINES THE RIGHTS OF INDIVIDUALS MORE CLEARLY, ALBEIT STILL REQUIRING THE PROTECTION OF THE COURTS. BUT THAT IS ANOTHER, SEPARATE, SUBJECT FOR DEBATE.

AT THE TIME DICEY WROTE, BOTH YOUR COUNTRY AND MINE WOULD HAVE CLAIMED VIGOROUSLY THAT WE WERE GOVERNED BY, AND COMPLIED WITH THE PRINCIPALS OF, THE RULE OF LAW. YET AT THAT TIME BOTH WOMEN AND BLACK PEOPLE WERE STILL SECOND CLASS CITIZENS.

MY COUNTRY WAS STILL BUILDING AN EMPIRE - CECIL RHODES, IN AN ILLEGAL INVASION (FORBIDDEN BY THE GOVERNMENT), STOLE RHODESIA FROM ITS NATIVE POPULATION ONLY A FEW YEARS AFTER DICEY WROTE – AND WE CERTAINLY DID NOT COMPLY WITH THE PRINCIPLES OF THE RULE OF LAW IN OUR COLONIES, ANY MORE THAN THE CIA HAS D0NE MORE RECENTLY IN MANY COUNTRIES OF LATIN AMERICA.

I MAKE THESE PROVOCATIVE STATEMENTS TO ILLUSTRATE 2 POINTS:­

FIRST:- THE RULE Of LAW IS A DEVELOPING CONCEPT, WHILE SOME OF ITS FUNDAMENTAL PRINCIPLES ARE REASONABLY WELL ESTABLISHED, THERE IS MUCH WORK STILL TO BE DONE IN DEVELOPING A CONCEPT WHICH IS BOTH WIDELY UNDERSTOOD AND CONSCIENTIOUSLY OBSERVED.

SECOND:- THE ENEMIES OF THE RULE OF LAW ARE ABSOLUTELY EVERYWHERE – NOT ONLY IN NAZI GERMANY, STALINIST RUSSIA, APARTHEID SOUTH AFRICA – THEY ARE ALSO WITHIN. THEY ARE THE MEN AND WOMEN IN POWER, IN EVERY COUNTRY, EVEN YOURS AND MINE, AS RECENT EVENTS HAVE MADE VERY CLEAR. THEY WILL ALWAYS BE TEMPTED TO ABUSE THEIR POWER. POWER CORRUPTS. I REPEAT - THE RULE OF LAW IS THE 0NLY SYSTEM SO FAR DEVISED WHICH PROVIDES IMPARTIAL CONTROL OF STATE POWER.

I AM SURE YOU ARE VERY ALL PROUD TO BE DESCENDED FROM THOSE WHO SIGNED MAGNA CARTA. AND SO YOU SHOULD BE. IT ACHIEVED NOTHING MUCH AT THE TIME, BUT IT GAVE BIRTH TO IDEAS. IT IS IDEAS WHICH LIVE AND DEVELOP AND WILL NOT GO AWAY. SO IT WAS THAT THE IDEAS WHICH WERE GIVEN BIRTH TO MAGNA CARTA WHICH WERE THEN DEVELOPED IN THE PUTNEY DEBATES, MARVOUSLY EXPRESSED IN THE DECLARATION OF INDEPENDENCE, AND MORE RECENTLY WRITTEN DOWN IN MORE DETAIL IN THE UNIVERSAL DECLARATION OF HUMAN RIGHTS.

AS TO THE RULE OF LAW, AFTER DICEY, THERE WAS LITTLE DEVELOPMENT IN THE THINKING ABOUT IT FOR A L0NG TIME. IT WAS HORROR AND OUTRAGE AT THE BEHAVIOR OF NAZI GERMANY WHICH LED TO THE ATTEMPT TO DEVISE A NEW POLITICAL MORALITY, STARTING WITH THE UNIVERSAL DECLARATION OF HUMAN RIGHTS. HUMAN RIGHTS AND THE RULE OF LAW ARE NOT QUITE THE SAME THING – INDEED, THE UNIVERSAL DECLARATION MAKES THAT CLEAR IN ITS VERY FIRST SENTENCE:-

"WHEREAS IT IS ESSENTIAL IF MAN IS NOT TO BE COMPELLED TO HAVE RECOURSE, AS A LAST RESORT. TO REBELLION AGAINST TYRANNY AND OPPRESSION, THAT HUMAN RIGHTS SHOULD BE PROTECTED BY THE RULE OF LAW…”

IT GOES ON TO DFFINE THE HUMAN RIGHTS IT IS TALKING ABOUT, BUT IT MAKES NO ATTEMPT TO DEFINE THE RULE OF LAW.

THE RULE OF LAW IS MORE ABOUT PROCESS THAN IT IS ABOUT THE CONTENT OF LAWS. BUT EVEN RULES ABOUT PROCESS GIVE RISE TO RIGHTS, OFTEN FUNDAMENTAL RIGHTS. MAGNA CARTA IS A CLASSIC EXAMPLE OF THAT. THE REQUIREMENT OF TRIAL BY JURY IS ABOUT THE PROCESS WHICH MUST BE FOLLOWED BEFORE A. PERSON CAN BE CONVICTED OF A CRIME. BUT IT GIVES RISE SIMULTANEOUSLY TO A FUNDAMENTAL RIGHT. SO WHEN LAWYERS GO ON ABOUT PROCEDURE, BOORINGLY FOR HOURS, WHICH THEY DO, DON’T FORGET THEY ARE TALKING ABOUT SOMETHING INCREDIBLY IMPORTANT WHICH IS THE PROCESS BY WHICH WE GO ABOUT AFFECTING PEOPLES LIBERTY. DISCRIMINATION IS ANOTHER VERY INTERESTING EXAMPLE, ONE OF THE MOST IMPORTANT TASKS OF THE LAW IS TO DISCRIMINATE, BY RECOGNIZING THE DIFFERENCES BETWEEN ONE CASE AND ANOTHER, FOR EXAMPLE BETWEEN ADULTS AND CHILDREN, MARRIED AND UNMARRIED, SANE AND INSANE. THE JOB OF THE LAW IS TO DISCRIMINATE. THE WORD DISCRIMINATE IS A BAD WORD TODAY BUT THAT IS WHAT WE HAVE TO DO ALL THE TIME. THE LAW HOWEVER, REQUIRES REASONED, NOT PREJUDICED DISCRIMINATION. THAT IS THE LEGAL PROCESS.

THE RULE OF LAW HAS STARTED IN RECENT YEARS TO RECEIVE ATTENTION AGAIN. THE PRINCIPAL DEBATE IS BETWEEN THOSE WHO ARGUE FOR THE "THIN" DEFINITI0N, I.E. THAT THE RULE OF LAW IS REALLY ONLY ABOUT PROCESS AND LAYS DOWN NO REQUIREMENT AS TO CONTENT, AND THE "THICK" DEFINITION, WHICH INSISTS THAT THE RULE OF LAW MUST INCORPORATE CERTAIN FUNDAMENTAL HUMAN RIGHTS.

MY PERSONAL VIEW LIES IN THE POINT I HAVE ALREADY MADE, THAT THE RULE OF LAW IS MAINLY ABOUT PROCES, BUT INSISTENCE ON PROPER PROCESS GIVES RISE TO A NUMBER OF FUNDAMENTAL RIGHTS. MORE IMPORTANT STILL IS THE POINT THAT THE RULE OF LAW IS THE UNDERPINNING OF MANY OF THE OTHER VALUES WE HOLD DEAR – A PROPER POLITICAL PROCESS, FREEDOM, JUSTICE, DEMOCRACY, HUMAN RIGHTS.

I WILL TAKE EACH IN TURN.

THE RULE OF LAW IS THE ONLY THING WHICH GUARANTEES A PROPER POLITICAL PROCESS – I.E. FREE POLITICAL DEBATE. IN A SOCIETY RULED BY A MONARCH OR A DICTATOR, OR BY A POWERFUL GROUP, THE POLITICAL PROCESS INSTEAD AMOUNTS TO TRYING TO PERSUADE THE RULER TO ACT, OR NOT TO ACT, IN A PARTICULAR WAY. THAT IS PLEADING, ITS NOT FREE POLITICAL DEBATE. WITHOUT THE RUL EOF LAW YOU CANNOT HAVE FREE POLITICAL DEBATE.

THE LAW LIMITS EVERY INDIVIDUAL'S FREEDOM IN SOME WAYS, BUT IT SIMULTANEOUSLY PROTECTS THAT FREEDOM FROM OPPRESSION BY OTHERS.

THE LAW DOES NOT INVARIABLY DELIVER JUSTICE, BUT YOU CANNOT HAVE JUSTICE WITHOUT THE RULE OF LAW.

DEMOCRACY MAY OR MAY NOT GO HAND IN HAND WITH THE RULE OF LAW, BUT YOU CANNOT HAVE DEMOCRACY WITHOUT THE RULE OF LAW.

HUMAN RIGHTS AND THE RULE OF LAW ARE NOT SYNONYMOUS, BUT YOU CANNOT HAVE HUMAN RIGHTS WITHOUT THE RULE OF LAW.

THE RULE OF LAW IS THE UNDERPINNING OF ALL THESE GOOD THINGS. IT IS THE BASE OF THE KIND OF SOCIETY WE ALL WOULD LIKE TO LIVE IN.

THE UNITED STATES HAS ALWAYS BEEN A COUNTRY OF HIGH IDEALS, AND NOT AVERSE TO EXPRESSING THEM. IT WAS THE UNITED STATES, IN THE PERSON OF ELEANOR ROOSEVELT, WHO LED THE WAY AFTER THE SECOND WORLD WAR IN DRAFTING THE UNIVERSAL DECLARATION OF HUMAN RIGHTS. IT WAS A LONG TIME FROM 1215 TO 1948, AND THE IDEAS EXPRESSED IN THE UNIVERSAL DECLARATION ARE A LONG WAY FROM THOSE EXPRESSED IN MAGNA CARTA.

I THINK ONE CAN FAIRLY SEE THE DEVELOPMENT AND THAT IS YOUR HERITAGE AND I AM SURE YOU ARE JUSTLY PROUD OF IT.

I WAS EXTREMELY FLATTERED TO BE INVITED TO SPEAK TO YOU TONIGHT. THANK YOU VERY MUCH FOR LISTENING TO ME. YOU HAVE A GREAT HERITAGE. I GUESS MY MESSAGE TO YOU IS – YES BE PROUD ABOUT IT, CELEBRATE IT, BUT DON'T STOP THERE. MAGNA CARTA WAS JUST THE START, BUT ONLY THE START – OF A LONG ROAD, ALONG WHICH WE STILL HAVE A LONG WAY TO GO. IF WE VALUE THE PROCESS STARTED BY MAGNA CARTA, IT IS VERY IMPORTANT THAT WE MUST CONTINUE TO SPEAK OUT AND SUPPORT THE VALUES WHICH WE CAN NOW SEE IT REPRESENTS.