Franco-British Council, June 11, 2015, Lancaster House
MAGNA CARTA
AND THE DECLARATION DES DROITS DE L’HOMME ET DU CITOYEN :
PAST, PRESENT AND FUTURE.
Etienne Picard
Emeritus professor at the Sorbonne Law School
Magna Carta is rather famous in France too, especially among lawyers. Other French people,
at least the most educated ones, may know about the existence of Magna Carta and the date
when it was laid down, 1215. However, they prove to be very little informed about all other
aspects of Magna Carta: all they know is that rights and liberties are at stake in this
document, as they are in other similar English documents or in the French 1789 Déclaration
des droits de l’homme et du Citoyen. Generally speaking, they do not feel very concerned
with Magna Carta; they have never tried to really understand and highlight the true
similarities and deep differences between both documents - Magna Carta on the one hand,
and the French 1789 Déclaration on the other. Thus, I have to avow that French legal writers
have not written much about the topic
Nonetheless, we must put forward here a rather famous debate that took place at the turn of
the 20th Century between a very learned German lawyer, Georg Jellinek, and a French
“publicist”, as we can call him, Emile Boutmy, who was the founder of the “Ecole libre des
Sciences politiques”, as it was named at that time, now known as “Sciences po”.
The former, G. Jellinek was claimed that France, in 1789, had been inspired by England and
its old tradition of such Charters, Bills or Acts, that followed Magna Carta, all along the
history of England. The very core of his argument was that 1789 was not original at all, just a
sort of remake of Magna Carta in another context.
Whereas E. Boutmy endeavoured to protest against this thesis and argued that the French
1789 Declaration of Human Rights was fully original, in spite of what appeared at first sight.
Actually, both were partly right, but also both were partly wrong as well.
However, the issue offers a real hard case: on the French part, there are not many explanations
about Magna Carta, while the available legal material concerning the 1789 Déclaration is
profusely rich; on the English part, the situation is not exactly symmetrically opposed to the
French one, since there is good information about the French Déclaration, not always in
favour of the text or of the event itself, whereas the commentaries on Magna Carta are
exceptionally abundant, perhaps too much in the sense that many authors have stated so
many opinions often contradictory and sometimes excessively dogmatic, which is not a
common default of the English way of thinking.
Before entering the heart of the topic, let us underline that both documents enjoy, in their own
home, a sort of iconic nature, if not a mythic signification. At any rate, they both may claim to
be recognized as the most important document of the legal order to which they respectively
pertain. And, truly, both may be considered as the founding acts of these legal orders and
political system, if the word “system” is relevant as regards the English one.
One thing more is to be said, in spite of the possible ideological interpretation of both texts:
Magna Carta was laid down without any ideological intention or background; in its historical
context that was dominated by feudal principles, even though Magna Carta tended to alter
them significantly, since the aim of this Charter was to force the King, i.e. the sovereign, to
have respect for some other principles: the rights to ownership and liberty, the right to a due
process of law, and most of all, the right to consent to taxes.
However, although the Barons of John Lackland in 1215 had very little ideological, doctrinal,
philosophical concerns when claiming for this Charter, it later happened that progressively
Magna Carta was endowed with and conveyed a very strong political, legal and even moral
substance, as to progressively becoming a sort of symbol of the Rule of Law - so difficult to
explain to French people - and the first founding stone of the UK Constitution, although the
conceptions of constitutions prove quite different in each country.
On the contrary, the French Déclaration was clearly adopted in a specific context: highly
ideological, systematically and fully elaborated with obvious philosophical inspirations and
clear political intents. However, these circumstances did not prevent this text in acquiring
recently a thoroughly different signification and effect.
We can now try to point out and assess these similarities and differences between both
monuments, by scrutinizing successively their respective form, then their content, and at last
their effect.
I. - As to their form, Magna Carta and the 1789 Déclaration of rights, seem, at first sight,
very similar. In both cases, they are written documents proceeding from written statements,
although the first is a Charter, in the true meaning of this word, and the second a Déclaration,
in the proper signification of this term, which implies very deep differences as to their
respective content and effect.
Any way, the form of Magna Carta determined a long series of subsequent resembling
documents, the most famous of them being, in England, the very well known 1629 Petition of
Rights, the 1679 Habeas Corpus Act, the 1689 Bill of rights, the 1701 Act of Settlement…
And, abroad, Magna Carta undoubtedly inspired, but not completely, the Declaration of
Rights of the Thirteen Colonies of the future USA, that were proclaimed before the French
1789 Déclaration and then the US Bill of Rights of 1791 that was adopted after the French
Déclaration.
This is why it was argued, especially by G. Jellinek, that the French Declaration pertained to
the same English tradition.
Such a view would imply a serious misunderstanding: the similar formal form (if we may
refer to such an apparent pleonasm) of both written documents hide a very difference in
substantive form (if we may distinguish both types of forms). Effectively, the substantive
form of Magna Carta is that of an attribution of rights by a King to his Barons, whereas the
1789 French Déclaration is the recognition of rights that already existed as natural rights by
the Representatives of the Nation.
Thus Magna Carta was not laid down by the representatives of the Nation, nor by Parliament,
(which did not exist at that time), but by the King. However, it was in both cases, an act of
will decided by the sovereign (who was in fact forced to do it in 1215). And although it was
not adopted by Parliament, Magna Carta could be considered as statutory law, exactly as are
Acts of Parliament. Magna Carta is simply a “Charter”, in the very medieval meaning: not a
mere written document, that is only formal in form, but the attribution or the assignment of
Rights to the Barons, that did not exist beforehand, and that the latter could obtain pursuing
the political struggle that occurred between the King and the Barons regarding taxation,
deprivation of the right to consent to taxes, arbitrary decisions, sanctions punishments,
decided in spite of all fair process of law. And this attribution of rights by this document is
substantive form.
Nevertheless, if the 1789 Déclaration was emanating from the sovereign as well (not the king,
but the representatives of the Nation), it did not entail an attribution of rights, but the mere
recognition of pre-existing rights, since they were Natural rights. That was a means to force
the political power, including the sovereign power, to abide by these rights, since no one can
pretend to change what is natural: a way to deprive the political and even the sovereign power
to modify or to restrain these rights.
Magna Carta was the result of a mere political crisis, although long and even structural, and
was settled in accordance with the actual balance of power between the King and his Barons
who harshly struggled at that time, mainly for tax reasons. The 1789 Déclaration of rights
was the result of a global and total Revolution, re-founding the whole political and legal order
of French Society. These rights were grounded in Natural law; not a pure and practical
phenomenon of force, although a revolution is also a matter of forces.
Be that as it may, Magna Carta was positive law, although no sanction was settled against the
king in the case where he would infringe these rights, whereas the French Déclaration was
not positive law, but natural law
II. – Regarding now the content of both documents, there are some similarities, but the
differences prevail.
In both cases, rights are at stake, of course, but there are huge differences between the type of
rights each of them are about.
A first observation must be done where we undertake to compare the substance of these
documents: one is not stable, the other is much more steady
Magna Carta has suffered a lot of alterations since it was laid down in 1215 in the context of
feudal relationships between the king and his barons: most of its clauses, that have been
numbered by William Blackstone in the eighteen century, have been progressively repealed
since the date of its first writing, to such a point that among the 69 original clauses of the text,
only four survived, as generally agreed, such as the clauses dealing with the rights to property
and to liberty, the right to consent to taxes, the right to a due process of law. Of course, all the
clauses that were linked to the feudal form of society have been progressively abrogated when
the system came to change. However, other clauses may have been entrenched in other
subsequent statutes.
On the French side, the 1789 Declaration has never been modified. However, the 1789
Declaration which was linked to the 1791 Constitution was put aside when the latter was
repealed; and almost each following new French constitution had its own declaration or
similar text. In spite of that, the 1789 Declaration kept a very strong value in democratic
ideas, and kept its symbolic force and even its legal status. Two famous French legal writers,
Duguit and Hauriou, argued in this sense. Anyway, the 1789 Declaration was anew
proclaimed in 1946, when the Preamble to the Constitution of the fourth Republic formally
referred to it. However, it was supplemented by the other provisions of this Preamble, more
inspired by the Welfare State principles.
A second observation must be put forward: the differences concerning the content of both
texts are due to the various ways of understanding law in each country.
The English way, already reflected in Magna Carta, proves very practical, pragmatic,
concrete, earth to earth concerned… It is interested in detailed liberties and effective
procedural remedies, whereas the French one is obsessed with general, wide and far-reaching
principles. Thus, the 1789 Declaration has highly proclaimed the general principle of liberty
and the general principle of equality, among others, which are not provided for in such a
general ambit in Magna Carta.
Two important consequences flow down from that:
1. Magna Carta does not so much entrench, unlike what is often said, an attribution of rights,
but an assignment of privileges, to gentry and clergy, since the ordinary people are not
concerned by these rights, just because Magna Carta is not at all interested in equal rights
within the whole society.
2. In English legal language, liberties are referred to in the plural form or plural mode, since
the law dealing with liberties is devoted to each sort or each kind of practical and concrete
liberty (such as free speech, free property, free movement …), whereas liberty in general has
no legal existence as such, except that of a residual conception of liberty: liberty is all that
which remains where liberties are delineated or more or less restricted mostly by statutes. By
contrast, in French law, under the 1789 Declaration of rights, liberty is a legal and
constitutional principle, which should normally cover all the innumerable applications of
liberty, as equality is a general principle banning all sorts of discrimination, under certain
exceptions and limits.
III.- Now, regarding at last the legal effect of each instrument, we must first underline that the
French Declaration of rights originally proclaimed natural law principles, which does not
mean that its provisions were considered as deprived of all legal effect.
On the contrary, the legal effect of its provisions were tremendous: these natural law
principles justified, at least in the mind of those who proclaimed this Declaration , the legal
collapse of the previous legal and political order, that existed since immemorial times, for at
least one thousand years. And alike, these founding provisions justified the creation of a
thorough new legal and political order.
At any rate, liberty and equality of rights progressively gained legal positive effects, as
testified by judge made law regarding, for instance, judicial review of executive or
administrative decisions or regulations.
However, the most important legal effect of the 1789 Declaration of rights was admitted in
1971 when our Constitutional council started to undertake a judicial review of statutes, which
was a sort of new revolution, a “coup d’Etat de droit” as it was argued, since no constitutional
modification allowed it.
The judicial review of statutes was the result of a highly constructive manner to interpret the
1789 Declaration, since this text proclaims the sovereignty of statutes or that of the legislator.
Any way it is now fully admitted that the judicial review of statutes is not only possible, but
deeply necessary for the sake of Fundamental rights.
The history of Magna Carta is not so different on the whole, i.e. if we consider mainly its
global signification and sense, although the legal technical context is completely different. On
the whole, Magna Carta is considered as the main legal piece of the Rule of Law, and this is
particularly interesting to try to understand how it happened and how it could be possible.
Ever since Magna Carta is considered as statutory law, although not laid down by Parliament,
which did not yet exist at the time, but by the king: it is considered as statutory law, just
because it is a written document emanating from the sovereign.
However, for a very long time, it has been possible to trace and follow along the history of
English law, something progressively happened that is extremely amazing and really
important, and is comparable to the history of the 1789 Declaration.
Magna Carta progressively gained another nature, and another effect: it has tended to become
a part of common law, sanctioned as such by the courts; and, much more than that, it has
tended to be treated and become the very source or the formal origin of common law. Thus,
Magna Carta has gained a symbolic or mythic value: the text itself of Magna Carta is not so
important today, inasmuch as it is now extremely reduced: what is definitely of paramount
importance is that Magna Carta may be considered today as the foundation of a determining
principle of democracy according to which all powers most of all political power, have to be
instituted, controlled and if need be, restricted by law, whatever be this law.
What is paradoxical however is that Magna Carta, which has been progressively loosing its
origin, its content and its practical signification, has nevertheless been supplemented by the
principle that it has itself founded, which forms the very core of English Law, i.e., the
Primacy of Law.
And this allows, in one way or another, the future possibility and soon the necessity of some
constitutional review of statutory law, which would be a revolution in English law, as was our
“coup d’Etat de droit” of 1971 inspired by the 1789 Declaration of rights.
I wonder if that is not what Rudyard Kipling was expressing in other words, in his poem
devoted to Magna Carta, which was laid down in Runnymede, near Windsor, in June 1215:
“(…) At Runnymede, at Runnymede,
Oh, hear the reeds at Runnymede
You mustn’t sell, delay, deny
A freeman’s right or liberty
It makes the stubborn Englishry
We saw ‘em roused at Runnymede (…)”