Seminario Global de Derecho > Magna Carta and the Origins of Due Process

Magna Carta and the Origins of Due Process


Joshua Tate

Joshua Tate's research and teaching focuses on legal history, property…

7 de abril de 2014 - 12:30 a 14:00 hs


Although scholars have expressed a wide range of opinion on the extent to which the ius commune might have influenced the early English common law, there is general agreement that hte great European reception of Roman law in the later Middle Ages did not cross the English Channel. Even Charles Sherman, whose maximalist case has yet to be matched, acknowledged that the impact of Roman law in England was "limited in character as compared with the Continental reception." Perhaps the best explanation for this is the timing thesis offerend by R.C. van Caenegem: because England developed an efficient, centralized legal system at such an early stage, the increasingly sophisticated commentaries and glosses on Roman and canon law texts that emerged from the thirteenth century onward were of limited use to the royal justices in England. 

If the precocious development of the English common law system explains its resistance to the Continental reception, it does not follow that the entrenchment of royal justice in England was a foregone conclusion by the thirteenth century. The Angevin reforms were not universally popular, and criticism of royal justice became particularly strong during the reign of King John, whose consistent presence in England after the loss of his Continental possessions and assertive governance style led to frequent personal interventions in the operation of the royal courts. 
John's actions may have contributed to the development of the concept of rule of law, as there is evidence of a backlash on the part of some royal justices who may have resented the king's interference with their work. The most famous product of John's ineffective leadership was, of course, the Great Charter of 1215, several clauses of which addressed the need for fairness in judicial proceedings.
In is one of the great ironies of history that the king who signed what may be the world's most important constitutional document is remembered as one of England's least effective rulers. This inconsistency might be explained, in part, by the fact that key features of the Magna Carta reflect not a recognition of ancient English customs and restraints on royal power, but a reception of certain principles from the ius commune.

Universidad de San Andrés

  • Vito Dumas 284
  • Victoria
  • Buenos Aires
  • Argentina


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