Magna Carta and the fundamental right to due process

• Author: Joshua C. Tate
• Pages: 236-242

FRONTIERS OF LAW IN CHINA

VOL. 11 JUNE 2016 NO. 2

DOI 10.3868/s050-005-016-0014-6

FOCUS

THE PAST, PRESENT, AND FUTURE OF RULE OF LAW

MAGNA CARTA AND THE FUNDAMENTAL RIGHT TO DUE PROCESS

Joshua C. Tate*

Abstract The 800th anniversary of Magna Carta has been marked by much pageantry

and celebration. Some scholars have taken this opportunity to point out that the myth of

Magna Carta is far greater than what the actual 1215 Charter managed to accomplish.

Nevertheless, Magna Carta did make a meaningful and concrete contribution to due

process in 1215, as shown by certain provisions that are seemingly overlooked by critics

eager to downplay the Charter’s importance. This article highlights two lesser known

clauses of Magna Carta that had real contemporary significance in guaranteeing the

availability of jury trial for some categories of civil litigation. The ringing promises of

Clauses 39 and 40 may have inspired great jurists and founders of nations, but the more

humble Clauses 17 and 18 — specifying the proper location and manner of hearing

certain civil cases — must also be taken into account in assessing the Charter’s

importance.

Keywords Magna Carta, legal history, trials, access to justice, property, fundamental rights

INTRODUCTION .................................................................................................................... 236

I. MAGNA CARTA AND CRIMINAL TRIALS................................................................... 238

II. PROPERTY RIGHTS AND ACCESS TO JUSTICE .......................................................... 239

III. DUE PROCESS AND FUNDAMENTAL RIGHTS ......................................................... 241

CONCLUSION........................................................................................................................ 242

INTRODUCTION

The 800th anniversary of Magna Carta has been marked by many lectures,

* Joshua C. Tate, Associate Professor, at SMU Dedman School of Law, Dallas, US. Contact:

jctate@smu.edu

This article is an expanded version of a lecture I delivered in April 2015 to the Faculty of Law of the

University of São Paulo, and was first published in the 2015 volume Magna Carta: 800 Anos de Influência no

Constitucionalismo e nos Direitos Fundamentais, edited by Zulmar Fachin, Jairo Néia Lima, and Éverton

Willian Pona. I am grateful to José Reinaldo de Lima Lopes for organizing my lecture in Brazil, and to the

attendees at that lecture as well as everyone involved with the conference at Renmin Law School in Beijing

for their comments. I also thank Paul Brand for his helpful criticism.