Great Charter Research Articles

The right to freedom of speech: theoretical and legal aspect

The article defines the right to freedom as a vital role in the existence of humanity, as it allows citizens to take an active part in the country's political life and shape public opinion. The author notes that the right to freedom of speech has ancient historical origins. Documents were analyzed in which the principle of freedom of speech was declared, in particular the Great Charter of Freedoms (1215), Bill of Rights (1689), Declaration of Independence (1776), Declaration of the Rights of Man and Citizen (1789), Universal Declaration of Human Rights (1948), International Covenant on Civil and Political Rights (1966) and other acts. It is emphasized that these documents became the basis for developing the right to freedom of speech in modern democratic countries and provided an opportunity to freely express one's opinions without being persecuted by the authorities. The article pays special attention to domestic regulation of the right to freedom of speech. The author notes that freedom of speech is one of the critical components of human and citizen rights in many legal systems. The theoretical aspect of this issue includes the analysis of different approaches and concepts to understanding the essence and scope of this subjective legal right. Philosophical foundations and legal methods for understanding "freedom of speech” are described. It was determined that the right to freedom of speech is not absolute and may be limited. The work lists the circumstances under which the outlined right may be limited. The author emphasizes that possible restrictions must be legal, necessary in a democratic society, and comply with the principle of proportionality. The article summarizes that freedom of speech is historically an essential human right, which forms the basis of the legal status of an individual. Without it, the functioning of a democratic state is impossible at all. But at the same time, it should be taken into account that freedom of speech is not only a right but also a responsibility that rests on those who use this right. Ensuring its adequate protection requires a combination of international standards, national legislation, and constant adaptation to modern realities.

ВЕЛИКАЯ ХАРТИЯ ВОЛЬНОСТЕЙ КАК ПРАВОВОЙ АКТ, КУЛЬТУРНО-ИСТОРИЧЕСКИЙ АРТЕФАКТ И ОБЪЕКТ ИЗОБРАЗИТЕЛЬНОГО ИСКУССТВА

The article gives a comprehensive description of the Magna Carta of 1215 in the totality of three aspects as a legal act, a cultural and historical artifact and an object of fine art. The author proceeds from the fact that the originality of each of the aspects reinforces and strengthens the rest, giving special uniqueness to the Magna Carta of 1215 and turning it into an important element of modern culture. To analyze each of the aspects, the corresponding scientific method is used: comparativistic, formal-logical, source-research, retrospective, semiotic, etc. The characterization of the Magna Carta of 1215 as a legal act reflects its place in the legal system of Great Britain as part of the country's constitution. At the same time, special attention is paid to the ambiguous situation of its adoption. The article shows that this is a legal instrument that has had a huge impact on the formation of modern ideas about the constitutional system around the world, especially with regard to human rights. Considered as a cultural and historical artifact, the Great Charter of Liberties has a whole set of features that give it special value and make the preserved specimens unique. The circumstances associated with its adoption, the materials and ink used at that time to produce official documents, the methods of authenticating the document and other historical and cultural features of the four surviving copies of the Magna Carta of 1215 make it an interesting object of historical and cultural research. As an object of fine art, the Great Charter of Liberties was embodied both in serious monumental works and in caricatures; both in the works of artists and sculptors creating works of elitist art, and in works related to mass culture. The latter is illustrated by examples of images on clothing and vector Internet culture.

Uniwersytet – nauki humanistyczne i społeczne – państwo

With the Great Charter of Universities as a point of departure, the author discusses the four tasks of the university: (1) search for the truth (2) education which supplies students them with the latest scientific knowledge and the skills that knowledge justifies (3) student formation in the spirit of tolerance, pluralism and openness to dialogue, (4) popularizing scientific knowledge. For their accomplishment to be unconstrained (by ideological, religious, xenophobic or economic limitations), as well as effective and ethical, the university must be free and autonomous. Nowadays humanities and social sciences are particularly exposed to factors that damage or hinder this autonomy and freedom, which is regrettably the case especially in countries that declare attachment to democratic values, yet trample them at the same time.
 The author is very critical of the state’s policy of evaluating scholarly activities of universities based on converting scientific output into points. According to the author, this produces a greatly simplified and distorted picture of their achievements. What is more, it also encourages certain academics (for whom „survival” at a given institute or department is at stake) to engage in unethical behaviour: plagiarism of other people’s works, falsification of empirical research results, fabrication of findings, guest authorship, ghost authorship. One of the major solutions aimed to counter such unethical practices is to depart from bibliometric evaluation (via IF, H index) in favour of peer review. It is also necessary to implement new publishing practices, which would require replication of empirical studies, access to raw results provided by authors, as well as preregistration assessment of research projects so as to take works in which positive results were not obtained (thus failing to bear out the initial hypothesis) into consideration as well.

Magna Carta and the Mise of Amiens : In Memory of John W. Baldwin

Abstract In the 1260s, in the wake of arbitrating disputes between King Henry III of England and his barons, King Louis IX of France expressed the opinion that the limitations the barons had imposed on the English king’s authority were improper and even immoral. However, he was careful to exclude Magna Carta (1215) from this blanket condemnation. Limitations on royal authority deriving from it had been intended to resolve the issues that had led to the baronial rebellion against King John. Louis IX resolutely honored the memory of his father, Louis VIII, by reaffirming the validity of the Great Charter in his arbitration judgment of 1264, the Mise of Amiens, for the French prince had used John’s repudiation of Magna Carta in 1216 to justify accepting the rebel barons’ invitation to him to invade England and seize the crown.

Comparative analysis of quantitative indicators of Polish Constitutions

The process of development of Polish constitutionalism is considered in the work. The first legal act, which had the features of the Constitution were the Articles of King Henry of Valois. The reason for preparing this document was the need to conclude an agreement between the heir to the French throne and the Polish nobility, who wanted to preserve their rights and freedoms. The content of this document was influenced by the Great Charter of Freedoms «Magna Garta» of 1215, which reflected the mechanism of limiting state power through the establishment of material and procedural requirements for its implementation. In order to conduct a comparative analysis of the Constitutions adopted in Poland, the method of quantitative indicators proposed by O. L. Kopylenko and B. V. Kindyuk was used, which calculated the number of signs in different articles, chapters, sections, parts of regulations. According to this methodology, the Articles focused on the work of the Seimas – 17%, military issues – 6.7%, the judiciary – 5.6%. In jurisprudence, it is common to distinguish four main stages of the formation of constitutionalism: I generation – the end of the XVIII century. — the beginning of the XIX century; II generation — the period after the First World War; III generation — the stage after the end of the Second World War; Generation IV – the time after the collapse of the USSR. Based on this classification, the Polish Constitutions belong to the first generation: the Constitution of May 3, 1791; Constitution of the Duchy of Warsaw of 1807; Constitution of the Kingdom of Poland in 1815. The Constitutions of the first generation include: the Constitution of May 3, 1791; Constitution of 1807; Constitution of the Kingdom of Poland in 1815. The constitutions of the second generation were adopted in the period after the end of the First World War, they reflected the processes of democratization of social and democratic life of countries and enshrined a significant amount of socio-economic human rights. Based on this classification, this group includes: the Constitution of the Polish People’s Republic of 1919; Constitution of the Republic of Poland of 1921; Constitution of the Republic of Poland of 1935. The constitutions of the third generation were adopted in the period after the end of the Second World War, and their content reflected the doctrine of the liberal model. Formally, this group included the Constitution of the Polish People’s Republic of 1952, but it was adopted during the Soviet occupation and introduced the Stalinist model of constitutional relations in the country. Generations of the IV generation were adopted after the collapse of the Soviet empire and reflected a new stage of state formation. In Poland, such a constitutional act was the 1997 Constitution of the Republic of Poland, which was to ensure the transition from a socialist model to a market democratic state governed by the rule of law, the stabilization of national statehood and the proclamation of accession to the European Union. The next stage of the study is a comparative analysis of the quantitative indicators of the Polish Constitutions, which showed that the total number of signs during this historical period varied from the minimum in the Articles of Heinrich Valois — 14 640 zn. to the maximum — 89 524 zn. in the Constitution of the Republic of Poland in 1997. An important indicator of the structure of constitutional acts is the number of articles (articles), which varied in a fairly wide range from 12 in the Constitution of 1791 to 243 in the Constitution of the Republic of Poland in 1997. Key words: Polish constitutionalism, quantitative indicators, comparative analysis, Articles by Heinrich Valois, total number of characters.

Introduction

Introduction Melvin I. Urofsky As all of you who have been following the news—whether in old-fashioned news­ papers (as I do) or on some electronic device —know, many colleges founded before the Civil War, such as Harvard and Georgetown, or even afterwards, such as Washington and Lee, have been reexamining the role of slavery in their early history. It is not that these schools have been unaware that slavery played a part—historians have long known that the value of chattel slaves funded many things other than the plantations south of Mason and Dixon’s line. Rather, it is the demand from students that universities openly face up to these facts and, if possible, do something to atone for it, that is driving schools to take a look into the darker recesses of their past. This is the context in which Paul Finkelman’s new book, Supreme Injustice, arrives. Now the president ofGratz College in Philadelphia, Paul has long been one of the leading historians of slavery, especially the role it has played in the American court system. In his new book, he examines the role ofthe three most important Justices that sat on the high court in the years before the Civil War—Chief Justice John Marshall, Justice Joseph Story, and ChiefJustice Roger Taney. What is the newest, and perhaps most startling part of this book, is the extent to which Marshall, the Great Chief Justice, owned and sold slaves. Because of the importance of these findings, as well as Finkelman’s argument that the three men could have changed the Court’s slavery jurisprudence, you will find two reviews of his work in this issue. First, Grier Stephenson looks at the entire book and the treatment of all three Justices in his “Judicial Bookshelf.” Because Finkelman’s findings about John Marshall are so new and surprising, we invited Charles Hobson, the editor ofthe John Marshall Papers, to look in particular at the chapter dealing with Mar­ shall. We have also invited Dr. Finkelman to respond in the next issue if he chooses to do so. In most histories of American jurispru­ dence, including mine, the place we usually start is at Runnymede with King John signing the Magna Carta. The reason is simple— 207 208 JOURNAL OF SUPREME COURT HISTORY Magna Carta started what will be called the “British Constitution,” which in fact is not a single document, but a series of laws passed during the ensuing centuries. When the U.S. Supreme Court first began hearing cases, there were many references to English law— after all, that was basically the only law those early Justices knew. Over the decades, as we built up our own body oflaw, one might have expected that there would be fewer references to the British Constitution and especially to Magna Carta. Derek A. Webb, former Supreme Court Fellow and associate in the Supreme Court and Appellate and Commercial Litigation and Disputes practice groups at the law firm Sidley Austin, however, suggests that Magna Carta has played a far larger role in Supreme Court cases than previously expected, and that role has continued right down to the present. There has always been some debate over exactly what the barons at Runnymede meant by “due process of law,” a debate that has been going on in American courts for decades. On the 800th anniversary of the Great Charter in 2015, Justices Antonin Scalia and Stephen Breyer took opposite sides in a case, with both of them citing Magna Carta as justification. Mr. Webb lists the cases and I think you will agree that we did not expect that many. I have mentioned a number of times that the field of constitution history is not a large one, and I have always been happy to be part of a discipline where most of us know each other. The article by Adam Winkler is another example of what my son has called “dealing with the usual suspects.” During several periods in American history there has been criticism of the courts, and especially of the high court, for its treatment of corporations, and especially of ascribing rights to them normally associated with natural persons. Adam...

What Say the Reeds at Runnymede? Magna Carta in Supreme Court History

What Say the Reeds at Runnymede? Magna Carta in Supreme Court History DEREK A. WEBB At Runnymede, at Runnymede, What say the reeds at Runnymede? The lissom reeds that give and take, That bend so far, but never break, They keep the sleepy Thames awake With tales of John at Runnymede.1 Introduction: An 800th Anniversary to Remember On June 15, 2015, lawyers on both sides of the Atlantic Ocean commemorated the 800th anniversary of the moment when King John affixed his seal to Magna Carta in Runnymede. In Runnymede that day, Queen Elizabeth, Prince William, and Prime Minister David Cameron appeared before a throng of thousands of British and American lawyers and politicians to commemorate the occasion. The keepers of the four remaining “exemplifications” of the 1215 Magna Carta, The Deans of Lincoln Cathedral and Salisbury Cathedral and the archivists of the British Library, the keepers of the four remaining “exemplifications" of the 1215 Magna Carta, were all on hand. U.S. Attorney General Loretta Lynch spoke on behalfofthe United States. The American Bar Association rededicated its small memorial it had first placed in Runnymede in 1965 for the 750th anniversary celebration. The weekend before the big day, churches throughout the country rang their bells, archers vied against each other in skills competitions, a medieval fair replete with traditional jousting was thrown, and, in a colorful river pageant, a flotilla of boats of all shapes and sizes floated down the Thames River towards Runnymede. And the day before the anniversary itself, a fullscale reenactment of the conflict between King John and the barons was staged in the Runnymede Pleasure Grounds. And in Washington, D.C., that day, the Supreme Court commemorated Magna Carta in the way it often does best: Justices Antonin MAGNA CARTA IN SUPREME COURT HISTORY 211 Scalia and Stephen Breyer argued about its implications for a case in dueling citations to the Great Charter. In Kerry v. Din, the two Justices disagreed about whether a decision by the State Department not to grant a visa to the husband of a U.S. citizen deprived that U.S. citizen of “due process.” And both looked back to Magna Carta to help them understand the contours of what the Fifth Amendment’s Due Process Clause required in that situation. It was a fitting tribute to Magna Carta that year, as the Justices cited Magna Carta more often in October Term 2014 than in any other single previous term in Supreme Court history.2 A joke that perco­ lated around the Court that year summed it up nicely: “Write Smarta’—Cite the Carta!” The contrast between the commemora­ tions in Runnymede and Washington, D.C., that day illustrates a unique quality of Magna Carta. Magna Carta is impossibly old. The Supreme Court first opened its doors and met for business on February 2,1790, in the Royal Exchange building in New York City. Five hundred seventy-five years before that, King John met with the barons in Runnymede. The time between those two meetings, more than twice the length of time in which the United States itself has existed, reminds us of the sheer, staggering, nearly prehistoric antiquity of Magna Carta, and the relative youth of our own constitutional system. And yet, across nearly a millennium of history, we continue to look back to Magna Carta as the earliest and most totemic symbol of constitutionalism and the rule of law in world history. Despite its antiquity, Magna Carta has managed to reach out from the vast deep ofthe past to exert a modest but ongoing influence on the deliberations of the Court. Indeed, Magna Carta has served as something of a leitmotif throughout Supreme Court history. Whenever a Justice has reached for a foundational legal text to undergird a claim about the fundamental liberties of individuals and the appropriate limits of government, Magna Carta has been available. As early as 1819, Justice William Johnson observed the easy availability and applicability of Magna Carta for judicial decisions when he wrote, “As to the words from Magna Charta ... after volumes spoken and written with a view to their exposition, the good sense of mankind has at length settled down to this...

Origin of petition right and improvement direction of Korean petition act

Origin of petition right and improvement direction of Korean petition act

THE MIXED LEGACY OF MAGNA CARTA FOR AMERICAN RELIGIOUS FREEDOM

AbstractIn 2015 Magna Carta celebrated its 800th anniversary. The Great Charter has been widely heralded as a fount of many rights that are highly valued in British and American law. One right that people have identified in the Carta is that of religious freedom. Magna Carta contains two provisions guaranteeing freedom of the church from government authority. In 2013, the United States Supreme Court relied on that authority in a ruling that affirmed the principle of religious autonomy. This article argues that relying on the legacy of Magna Carta for the principle of religious freedom is tenuous: the document had little influence on the development of the First Amendment. Even Magna Carta's authority for the principle of church autonomy is overstated, as the Carta had nothing to do with the development of that principle in American law. Finally, judicial reliance on Magna Carta for the principle of religious freedom risks elevating protections for religious institutions over the interests of individuals. As a result, the legacy of Magna Carta for the principle of religious freedom is mixed, at best.

CHARTERS OF RELIGIOUS FREEDOM: THE MAGNA CARTA (1215), ORDINANCE NO. 7 OF 1843 (SOUTH AFRICA), AND THE SOUTH AFRICAN CHARTER OF RELIGIOUS RIGHTS AND FREEDOMS (2010)

In June 2015 a conference was held in Oxford to commemorate the 800th Anniversary of the Magna Carta (the Great Charter). In 1865 Ordinance no. 7 of 1843 was hailed as the Magna Carta of the Dutch Reformed Church. At the conference in Oxford a paper was given on the “Magna Carta and South Africa”. This article grew out of that paper. In the article, the historical development of religious freedom in different time periods are touched upon to end with the South African Charter of Religious Rights and Freedoms (SA Charter), which was signed by many religions in South Africa on 20 October 2010 – its Constitutional setting and background while the differences between the Magna Carta, Ordinance no. 7 of 1843 and the SA Charter are accentuated. The biggest difference between the three documents are that the Magna Carta and Ordinance no. 7 of 1842 were documents that originated from the authorities and were granted to the churches, while the SA Charter is a document that grew from the religious communities itself.

Marcin Starzyński, Das mittelalterliche Krakau: Der Stadtrat im Herrschaftsgefüge der polnischen Metropole, trans. Christian Prüfer and Kai Witzlack-Makarevich. (Städteforschung A/92.) Vienna: Böhlau, 2015. Pp. xii, 223. €32.90. ISBN: 978-3-412-22382-3.

Marcin Starzyński, <i>Das mittelalterliche Krakau: Der Stadtrat im Herrschaftsgefüge der polnischen Metropole</i>, trans. Christian Prüfer and Kai Witzlack-Makarevich. (Städteforschung A/92.) Vienna: Böhlau, 2015. Pp. xii, 223. €32.90. ISBN: 978-3-412-22382-3.

Liberty, Conscience &amp; Toleration: The Political Thought of William Penn by Andrew R. Murphy

Reviewed by: Liberty, Conscience & Toleration: The Political Thought of William Penn by Andrew R. Murphy J. William Frost Liberty, Conscience & Toleration: The Political Thought of William Penn. By Andrew R. Murphy. New York: Oxford University Press, 2016. xiii + 301 pp. Notes, bibliography, and index. $74. Murphy, author of Conscience and Community: Revisiting Toleration and Religious Dissent in Early Modern England and America (2006) and an edition of Penn’s political works, has now written an in-depth study of Penn’s political theories. He argues that, like John Locke’s famous essay on religious toleration, Penn’s writings were a response to specific events and are important not because of originality but because both men summarized and popularized major themes. Agreeing with Mary Dunn’s William Penn, Politics and Conscience (1967), Murphy insists that working for toleration or liberty of conscience remained a constant feature of Penn’s life. The book focuses on Penn’s response to the II Conventicle Act, Bushel’s [End Page 30] Case, the Popish plot and Exclusion Crisis, the founding and early history of Pennsylvania, and James II’s attempt to guarantee toleration through the suspending power and then by act of Parliament. Murphy has mastered the secondary literature on each of these subjects and his analysis provides new insights. For example, in Bushel’s Case Penn sought for the jury to determine both fact and law and his actions were a kind of performance theater that made him a national figure. Penn consistently defended religious liberty for Roman Catholic individuals, but opposed “popery” that he defined as an attempt by Rome or the Church of England to merge ecclesiastical and state power and to force worship. For Britain, Penn advocated toleration – that is, no disestablishment of the Church of England and freedom for public worship. In Pennsylvania, the law guaranteed freedom of worship, ignored tithes or any taxes for churches, required strict enforcement for morality, and supported Quaker beliefs on marriage, oaths, and peace. Freedom to error in religious belief did not allow liberty for a licentiousness that threatened civic interest in either Britain or Pennsylvania. Depending on circumstances, Penn emphasized a variety of reasons for toleration: Christianity (Jesus’ kingdom was spiritual and the early church did not persecute), English history (Magna Carta, Great Charter, and common law), human nature (conscience cannot be coerced), economics (property rights and dissenters’ hard work strengthened the realm), and pragmatism (persecution did not work). Opponents of toleration agreed that conscience could not be forced but feared spiritual anarchy as leading to another Puritan revolution, undermining political unity, and strengthening Catholicism. Murphy’s careful analysis of Penn’s writings and use of examples from early Pennsylvania to illustrate the difficulties implementing theories should appeal to political scientists – the book’s intended audience. Those primarily interested in Quaker history may be dissatisfied. The book does not discuss Quaker writings on religious freedom before Penn or comment on how he might have changed Friends’ emphases or tactics. Also ignored is the influence of Penn’s study at Saumur where he encountered a moderate Calvinist defense of religious toleration and saw the actual practice of harmony between Catholics and Protestants. Penn’s defense of property rights could have been juxtaposed against the Quaker refusal to pay tithes and disputes over impropriated tithes. There are no meeting minutes cited and the only personal papers are the microfilmed Penn Papers. Except for Fox’s Journal, Barclay’s Apology, and several [End Page 31] works by George Keith, Penn exists in isolation from other Friends, except in Pennsylvania. Here are the kinds of issues that more concentration on Penn’s Quakerism would have brought to Murphy’s political focus. In 1681–82 as Penn sought settlers and drafted Frames of Government, he published A Brief Examination and State of Liberty Spiritual and the revised edition of No Cross, No Crown. Why should historians assume that these were directed only to Quakers in England and not to prospective settlers? Penn knew the disruptive effects of religious schism. If Pennsylvania were to become a harmonious civil society populated by Quakers, then Penn needed to stop religious disputes, build deference to spiritual and political leaders, and foster moral...

Hvem var opænbarligh gen guth i Jyske Lovs Fortale? Et studie i Lovbogens teksthistorie

One sentence in the Prologue of the Law of Jutland (1241) has caused much scholarlydiscussion since the nineteenth century. Did it say that “the law which the king givesand the land adopts, he [i.e. the king] may not change or abolish without the consentof the land, unless he [i.e. the king] is manifestly contrary to God” – or “unless it [i.e.the law] is manifestly contrary to God”? In this article it is argued that scholarly conjectures about the original sense of the text at this point have paid insufficient attentionto the textual history of the law-book.On the basis of Per Andersen’s recent study of the early manuscripts of the Lawof Jutland, it is shown that the two earliest surviving manuscripts both have a readingthat leaves little doubt that the original text stated that the king could not change thelaw without the consent of the land unless the law was manifestly contrary to God. Theequivocal reading that has caused the scholarly controversy was introduced by a conservativerevision of the law-book (known as the AB text), which is likely to have originatedin the aftermath of the great charter of 1282, which sealed the defeat of the jurisdictionalpretensions of King Erik V. A more radical reading, leaving no doubt that the kingwould be acting contrary to God in changing the law without consent, occurs in an earlyfourteenth-century manuscript and sporadically throughout the fifteenth century, butit never became the generally accepted text. On the contrary, an official revision of thelaw-book (the I text), probably from the first decade of the fourteenth century, sought toeliminate the ambiguity by adding “and he may still not do it against the will of the land”,thus making it clear that it was the law that might be contrary to God.Due to the collapse of the Danish monarchy in the second quarter of the fourteenthcentury, the I text never superseded the AB text. The two versions coexistedthroughout the fourteenth and fifteenth centuries and soon produced a number ofhybrid versions. One of these gained particular importance, since it was the text thatwas used for the first printed editions of the Law of Jutland in 1504 and 1508. Thus itbecame the standard text of the law-book in the sixteenth century. The early printededitions also included the medieval Latin translation of the Law of Jutland and theLatin glosses to the text. The glosses are known to be the work of Knud Mikkelsen,bishop of Viborg from 1451 to 1478. Based on a close comparison of the three texts, itis argued here that Bishop Knud was also the author of the revised Danish and Latintexts of the law-book that are included in the early printed editions, and that the wholework was probably finished in or shortly after 1466. Bishop Knud included the I text’saddition to the sentence about the king’s legislative powers.An effort to distribute Bishop Knud’s work as a new authoritative text seems tohave been made in 1488, but rather than replacing the earlier versions of the Lawof Jutland, this effort appears to have triggered a spate of new versions of the medievaltext, each of them based upon critical collation of several different manuscripts.In some of these new versions, a further development in the sentence on the king’slegislative power brought the sentence in line with the political realities of the late fifteenthcentury. Instead of having “he” [i.e. the king] as the agent of legal change, theyattribute the initiative to the indefinite personal pronoun man: at the time, any suchinitiative would require the agreement of the Council of the Realm.Only the printing press brought this phase of creative confusion to an end in theearly sixteenth century.Finally, it is argued that the present article’s interpretation of the original senseof this particular passage in the Prologue is in accordance with the nature of Danishlegislation in the period from c.1170 to the 1240s, when most major legislation happenedin response to papal decretals and changes in canon law.

The Reception of Magna Carta in Early Modern Germany, c. 1650–1800

ABSTRACTThe article examines how far the reinvigoration of Magna Carta in seventeenth-century British legal thought was received into German discourses between c. 1650 and 1800. An analysis of early modern German works on feudal law and ius publicum, of historical writings as well as of political literature reveals a formal, but no substantive reception: early modern German scholarship betrays no signs of an effort to discuss or describe the actual contents, provisions and meaning of Magna Carta. Rather, from the mid-eighteenth century onwards, the Great Charter enters political debate as a trope for a constitutional guarantee of unnamed personal liberties.

The Contemporary Presidency: Magna Carta and the Contemporary Presidency

Despite arguments by some scholars that Magna Carta has been inaccurately mythologized, this article argues that it continues to be relevant to contemporary governance. After an overview of the historical circumstances of the Great Charter, and a discussion of its major clauses, this article examines expansions of individual rights and limits on government in Anglo‐American jurisprudence that trace their origins to Magna Carta. It argues that the timeless principles embedded in Magna Carta continue to be relevant to contemporary governments, particularly the U.S. presidency. It concludes that Magna Carta continues to be important as a classic statement of rule of law, limited government, and individual rights and a potent symbol and argument for restraining government in general and executives in particular.

Introduction

Introduction Melvin I. Urofsky Last year marked the seven hundredth anniversary of Magna Carta. Pick up any constitutional history textbook and you will learn that there were several such documents. Every time a new king seized power, he promised not to abuse his powers and assured his barons that their privileges would be safe. In fact, the document that is so revered in the world of Anglo-American law itself reaf­ firmed the substance of pledges made in Henry I’s Coronation Charter in the twelfth century. But the one signed by King John at Runnymede on June 15,1215, holds a special place in our history. To mark the anniversary, the Society invited the Rt. Hon. Brenda Hale, Baroness of Richmond, to give its annual lecture. An English barrister, jurist, and judge, she is currently the Deputy President of the Supreme Court of the United Kingdom, and therefore familiar with the Great Charter on a regular basis. When former law clerks write about “their”judges, their reminiscences are usually overflowing with both praise and affection. Even the clerks of curmudgeonly Justices like William O. Douglas found much to like in recalling their year at the Court. There is one exception, however, and that is James Clark McReynolds, who served on the high court from 1914 to 1941, and was considered a nasty person not only by his clerks but by his fellow Justices as well. Several years ago scholars unearthed a manuscript memoir by one of his clerks, John Knox, which did nothing to redeem McReynolds’s reputation. Our managing editor, as well as Director of Publications at the Society, Clare Cush­ man, found a cache ofletters at the Utah State Historical Society from Milton Musser, who clerked for McReynolds in the 1938 and 1939 Terms, to his mother. He wrote home regularly, and his letters are a fascinating glimpse into McReynolds’s Chambers. The documents also confirm how difficult it was to work for the man. Edward T. Sanford is not one of the better-known members of the Court, on which he served from 1923 until his sudden death in 1930. A member of the inaugural staff of the Harvard Law Review, he then returned to his native Knoxville and practiced 134 JOURNAL OF SUPREME COURT HISTORY law there for fifteen years, until he entered government service and became assistant attorney general. In 1908 Theodore Roosevelt named him to a federal district court in Tennessee, and fifteen years later, Warren Harding named him to take Mahlon Pitney’s place on the High Court. Today he is perhaps best remembered as the author of two First Amendment speech cases, Gitlow v. New York (1925) and Whitney v. California (1927), in which he ruled that states could limit anti-government speech. Yet for all his low historical profile, this issue has two articles about him. John M. Scheb II, a professor of political science at the University of Knoxville, Tennessee, has written about Sanford’s life in Knoxville, his law practice, and his tenure on the district court. Stephanie L. Slater is an attorney with the Tennessee Court of Appeals, and she examines in-depth Sanford’s judicial opinions as a Justice on the U.S. Supreme Court. Finally, in the Judicial Bookshelf, our resident book reviewer gives us a look at recently published volumes. D. Grier Stephenson, Jr., is the Charles A. Dana Professor of Government at Franklin & Marshall College, and has been writing the Bookshelf for many years now, for which all of us, especially me, are quite grateful As always, an interesting buffet. Enjoy! ...

From Magna Carta To The Contemporary System Of Financial Penalties In The Criminal Law

Abstract Magna Carta Libertatum or the Great Charter of the Liberties is a historical document of great significance for the constitutional history and human rights and liberties development. Although at its initial version it addressed a limited number of liberties and principles, it represented a solid foundation for the evolution of the principles of the rule of law, right to justice, right to a fair trial, just and reasonable sentencing, limitation of powers, etc. Namely, article 20 of the Charter states: A freeman shall not be amerced for a slight offense, except in accordance with the degree of the offense; and for a grave offense he shall be amerced in accordance with the gravity of the offense, yet saving always his “contenement”; and a merchant in the same way, saving his “merchandise”; and a villein shall be amerced in the same way, saving his “wainage” if they have fallen into our mercy: and none of the aforesaid amercements shall be imposed except by the oath of honest men of the neighborhood. An analysis of this article undoubtedly leads us to the basic principles of the contemporary systems of fine, namely the daily-fine system introduced in the Macedonian Criminal Code in 2004 according to which the fine will be calculated and pronounced according to the gravity of the offence and the financial state and condition of the perpetrator. As one can notice, the gravity of the offence and the saving of the perpetrators “contenement” from the abovementioned article of the Great Charter refer to the aforesaid principles. In this article, a comparison will be made on the meaning of the term “amercement” and its similarities and differences with the modern financial penalties and measures in the criminal law from comparative perspective, to find which one corresponds to the latter: fine, assets forfeiture or compensation of damages made with the criminal offence.

Magna Carta And Its Significant Role For Rule Of Law In The Republic Of Macedonia

Abstract One of the most important and famous historical documents from the English legal and constitutional legacy is the Magna Carta Libertatum. Signed and sealed in the year 1215 the Magna Carta is further on viewed as the sole inception of the idea of limiting the power of the ruler trough legal rules. That limitation is to be made with legal rules that are binding for everyone, even the monarch. Therefore, the Great Charter is viewed as the first document signed by a monarch with which, the principle of supremacy of the law is set out. That supremacy of the law has been further on developed by eminent scholars and practitioners, eventually leading to the development of the concept of rule of law. Rule of law, as a concept, means that the royal authority (or the executive branch of power) is going to be inferior to the law. However, this concept means a lot more than simply that. Unlike the principle of legal state, the rule of law is closely linked to justice, separation of powers and legal certainty. All of these concepts are actually prerequisites for its existence. That is why each of them is separately examined and elaborated. Furthermore, as one of the most important principles the rule of law had a great influence on the constitutional (and legal) systems around the world. Since the Republic of Macedonia strives to become a democratic state where the rule of law is established and developed it is important to elaborate the influence of this principle in it. Therefore, the research gravitates over the principle of rule of law in the Republic of Macedonia.

Is The Principle Of Magna Carta Regarding Religious Liberties Applied In Macedonia?

Abstract Human rights were analyzed and described in many writings from older times. If we consider their fame and historical value, most important ones are: Great Charter of Freedoms (Magna Carta Libertatum) of 1215, the Law on Rights (Bill of Rights) of 1689, the Declaration of Independence of the United States of America (1776) and the Declaration of the Rights of Man and Citizen (1789). In Chapter 1 of Magna Carta was described the freedom of religion – it established the freedom of the English church from state interference. Today, implementation of this principle, challenges the communities to examine the part they might play in the development of a liberal democracy and to be part of the solution rather than part of the problem in internal and international relations. The restitution of the expropriated congregational properties – concretely of the Islamic Community of Macedonia remains open and can reflect the level of respect of human rights in general and religious and property rights in particular. The aim of this paper is to bring some facts on actual situation regarding the implementation of religious and related rights and discuss the way this principle has found its implementation in Macedonian legislations. Also this paper will seek to identify the problems that occur regarding these rights.

In the shadow of the great charter: common law constitutionalism and the Magna Carta

In the Supreme CourtAEs 2008 ruling on whether Guantanamo detainees could be barred from U.S. courts, Justice Anthony Kennedy cited the U.S. Constitution, of course. But he also linked the decision to the Magna Carta. Why would a twenty-first-century judge, even under the extraordinary circumstances of the owar on terror,o invoke a document signed by an English king in the thirteenth century? To address this question, as Robert Pallitto does in this clarifying book, is to probe the history of modern civil liberties, and to explore the process by which judges decide individual rights cases. PallittoAEs work, with its insight into competing ideas about interpreting the Constitutionuooriginalismo versus oconstitutional common lawouis of critical importance to our understanding of the nationAEs founding document. Of far more than symbolic significance, the Magna Carta exerts immediate practical influence on legal outcomes, as Justice KennedyAEs opinion demonstrates. To explain this, Pallitto first goes into the CharterAEs origins, history, and nature, especially its explicit use of othe law of the lando to protect subjectsAE rights and liberty. The Magna CartaAEs legacy in the United States reaches back to the nationAEs founding, with even the colonial charters reflecting its influence. But it is in the Supreme CourtAEs reference to the Charter, spanning the institutionAEs full two-hundred years, that Pallitto finds the greatest impactumost frequently in the principles of due process (in criminal proceedings) and habeas corpus, but in many other provisions as well. And the weight of this impact registers most deeply and clearly in the development of the constitutional common lawuthe theory that courts should and do interpret and expand on constitutional texts by reference to tradition and precedent rather than to the draftersAE original intent. Charting the Magna CartaAEs influence on the contemporary jurisprudence of individual rightsufrom the legal thought of the American colonies through exemplary cases over the history of the Supreme Courtuthis book offers resounding evidence of the evolution and value of abiding principles through which American liberty endures.