Academic journal article Case Western Reserve Journal of International Law

Magna Carta, the Interstices of Procedure, and Guantanamo

Academic journal article Case Western Reserve Journal of International Law

Magna Carta, the Interstices of Procedure, and Guantanamo

Article excerpt

This paper is inspired by two events, seven hundred and eighty-eight years apart. The first is the signing of Magna Carta in 1215 and the second is the establishment of U.S. prisons at Guantanamo and Bagram in 2003. It may seem odd to link these two events, but I do not think it is odd at all. Magna Carta established that any person is entitled to due process of law. Guantanamo and Bagram stand for the idea that certain prisoners can be denied due process if they fall through the cracks in the various extant legal regimes. Magna Carta was an agreement extracted from King John of England by feudal barons. We need an international agreement that protects Magna Carta legacy rights so that detainees will not fall through the cracks and be deprived of their procedural rights as they were at Guantanamo.

INTRODUCTION

In this paper I will explain how an understanding of Magna Carta in 1215 might provide an intriguing model for understanding "global procedural justice." The story of how Magna Carta influenced English law gives us a model, but also a cautionary tale, of how international law may develop as well. The process was a very slow and gradual one, and the process largely proceeded through gap filling, especially in the domain of procedural rights rather than substantive ones. Magna Carta laid the groundwork for English rule of law by laying out basic procedures that had to be followed, including procedures for challenging arbitrary imprisonment or exile. These procedural rights opened the door for the kind of equitable review of potentially arbitrary use of power by courts and even by the King, so that other more substantive abuses could be exposed and condemned as well. In this way, even as significant substantive rights were lacking in the legal system, procedural rights became gap fillers. Accountability was the main thing accomplished by Magna Carta and that then led to the possibility of a centralized system of law enforcement across England, just as may be true some day with international law. The process required significant input from Parliament, which extended and solidified Magna Carta's rights. Because there is no international legislature, other legal institutions will have to play the role of Parliament in extending basic procedural rights globally. (1)

In the first section of this paper, I will explain what the rights are that were first described at the time of Magna Carta and how they were abridged in Guantanamo. In section two, I provide some historical background on Magna Carta, rehearsing a story that by now has achieved wide consensus among historians. In the third section, I will explain why it was that Magna Carta's rights came to be considered fundamental law in England, and why it is especially important that fundamental law be understood in procedural terms for the development of the rule of law. In the fourth section, I draw out some parallels between the development of a legal system in England from the time of Magna Carta and the development of an international legal system today. In the fourth section, I explain some of the changes in international law that would be especially important for the eventual creation of a truly international legal system, again drawing on the model of Magna Carta. And in the final section, I respond to several objections.

I. MAGNA CARTA'S LEGACY AND GUANTANAMO

Magna Carta's Chapter 39 (normally referred to as Chapter 29, in the 1225 revised version of King Henry III) says:

   No freeman shall be taken and imprisoned or disseised ... or
   outlawed, or exiled, or in any way destroyed, nor will we go upon
   him nor send upon him, except by the lawful judgment of his peers
   or by the law of the land. (2)

There are at least four distinct rights in this document. First, is the right to trial by jury, which is so important that the other rights cannot be abridged unless a jury determines that such abridgement is justified. …

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