Magna Carta and Voodoo Medicine

“When the Magna Carta was drafted and agreed upon, you doctors were still practicing voodoo medicine.”  A newly met pretty barrister told me proudly, as if I did not know.

Actually I had seen one of the four exemplifications of the original Magna Carta in the British Library.  It was the document recording the negotiation between King John of England and his barons.  In 1215, the barons were not satisfied with the King and captured London.  King John was forced to agree upon and abided by some terms.  Although it mostly dealt with medieval rights and customs, Magna Carta had become the symbol of liberty.  The most famous clause read: ‘No man shall be arrested or imprisoned except by the judgment of their equals and by the law of the land.  To no one will we sell, to no one deny or delay right or justice.’  The Magna Carta had vast impacts on the constitutional law of England and other countries including the United States.  It also nourished the concept of protection of human rights and the rule of law.  Lord Denning described the Magna Carta as "the foundation of the freedom of the individual against the arbitrary authority of the despot."

Well, 1215.  Micro-organisms were proved to be the causative agents for fermentation and then postulated to be the causative agents for human diseases by Louis Pasteur in 1857.  In 1928, penicillin was first discovered to be useful as an antibiotic.  Physics seemed to do better.  Einstein worked out the Mass-energy Law in 1905.  In 1689, Newton wrote his famous three Laws of Motion.  As early as 250 BC, Archimedes described the Archimedes Principle on floatation.

But, wait.  I had been researching on “discoveries”.  They were either discoveries of natural substances or natural laws that were already existing and governing the running of this planet Earth.  Magna Carta was surely not something natural.  In the contrary, regulations, charters or laws were always inventions.  They were created to help allowing human beings to live in harmony in a society.  If we were talking about inventions, I was sure there existed numerous inventions in medicine since Stone Age.  What mattered was whether such inventions could persist and be useful.

I dared not say that the Magna Carta was at the level of voodoo medicine, though I had the urge to refute the pretty barrister’s assertion.  However, I thought if I described it as rudimentary, no one would strongly object.  What it had done was creating a system in which law could evolve and improve.  I would like to say that we had evidence-based medicine.  But that was just as old as me.

The beauty of the Magna Carta was the introduction of the concept of “rule of law”.  This was against the long-recognized practice of the “rule of man”, or the rule of power.  Rule of law put “law” in the supreme.  Everyone, including the king, should be and needed to abide by it.  In 1885, an English Law Professor, A V Dicey popularized this important concept of rule of law in his “Bible of British Constitutional Law”: Introduction to the Study of Law of the Constitution.  Dicey thought that there were 3 facets to the rule of law:

1.  No man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary Courts.

2. Equality before the law, or the equal subjection of all classes to the ordinary law of the land administered by the ordinary Law Courts.

3. Whereas under many foreign constitutions the rights of individuals flow, or appear to flow, from the articles of the constitution, in England the law of the constitution is the result, not the source of the rights of individuals.

Rule of law was a seemingly simple but inherently complex concept. Even Dicey’s 3 points received much criticism and debate.  This was particular true for point number 3.  I of course by no means understood fully what rule of law meant.  I became alarmed when I read in newspaper repeatedly that rule of law had been threatened and undermined.  When there were protests and demonstrations, rule of law was said to be threatened.  When judges were criticized rudely, rule of law was said to be shaken.  When students marched into a meeting place of their university, rule of law was said to be undermined.  I went through definitions and explanations of rule of law.  I did not find that rule of law would be undermined when someone broke the law.  The rule of law would not be undermined even when someone broke the law and insisted that they were not guilty and were acting in whatever reasons behind.  The law still applied to them.  They might get arrested, tried, and punished accordingly if found guilty.  Only the public security and stability of the city would be undermined.

It was only the action of rulers and those in power that could undermine the rule of law.  It was the selective application of law in favor of those in power, or those favored by those in power, that caused problem.  Some called this selective action the “rule by law”.  I did not like to use this confusing term.  It still carried some sense of ruling according to existing laws.  If statutes were interpreted officially in a way causing mass demonstration, the rule of law would be threatened.  If court judgments were affronts to common sense, the rule of law would be threatened.  If due process in decision making was not following, the rule of law would again be threatened.

Pretty barrister, do you agree?

(Source: HKMA News August 2015)