THE MAGNA CARTA, HUMAN RIGHTS THEORY AND THE ORIGIN OF POSITIVE AND COMMUNAL CONSTITUTIONAL RIGHTS

Although the original 1215 Magna Carta applied only to rights of ‘freemen’ and not to those less wealthy, the legacy of Magna Carta on international human rights law is significant. It was acknowledged by Eleanor Roosevelt during the adoption by the United Nations of the Universal Declaration of Human Rights, which she described as the international magna carta for humanity. The comedian Tony Hancock uses comedy to expose truth with his questions: ‘Does Magna Carta mean nothing to you? Did she die in vain?’ This brings up a good point, because the original Magna Carta endured for less than nine weeks. The socio-economic rights provisions of the Magna Carta have been overlooked, and the effect of this historical amnesia is death – that is, of the memory of the origin of socio-economic rights. Hence an analysis of the history of Magna Carta ought not to be limited to the history of a specific legal document, but should also be a re-examination of the history of human rights. Close examination of the text of Magna Carta reveals six points of importance for the foundations of human rights theory in general, and for socio-economic rights in particular.

Arguments which focus on the legacy of socio-economic rights protection must, however, first consider whether Magna Carta created rights or only liberties. Although some regard the legacy of Magna Carta as bequeathing liberties rather than rights, as in ‘customs and liberties’, such a conclusion omits consideration of the final clause of Magna Carta, which provides that ‘men in our kingdom shall have and keep all these liberties, rights and concessions’. Hence the concept of rights for others than monarchs was acknowledged in constitutional laws at least as far back as thirteenth-century England.