The ‘Great Charter’, granted by King John to the ‘free men’ of England on 15 June 1215, is widely considered to be the basis of British constitutional liberties. In practice it often receives greater reverence in the USA than in the United Kingdom, where it is hardly ever referred to in courts, and little known in detail to even the educated public. It was born out of the resentment on the part of the country’s barons towards royal demands on their money and military service, and in particular to the King’s habit of taking hostages to ensure loyalty. Initially King John refused to sign it, but when the barons raised a military rebellion and captured London he was forced to come to terms, and formally adopted and signed the Charter at Runnymede.
The Charter defined the formal relationship between the king and the barons, guaranteeing their rights and also formalizing the legal and judicial procedures of the realm. The barons were particularly concerned to curtail what they saw as abuses of feudal land tenure, and to strengthen earlier versions of the right of Parliament to control taxation. Criminal law was modernized and standardized, and additional clauses recognized the rights of important urban centres and reformed currency and trading regulations. The Charter contains the first really firm commitment to the concept of due process with the guarantee that: ‘No free man shall be arrested or imprisoned or disseised or outlawed or exiled or in any way victimized, neither will we attack him or send anyone to attack him, except by the lawful judgment of his peers or by the law of the land.’ Under Henry III, and again at the end of the 13th century, Magna Carta was confirmed and modified by Parliament, and subsequently formed the main theoretical basis for succeeding generations of critics of the royal prerogative. Technically the Charter covered only relations between the king and the barons, but later jurists, especially Sir Edward Coke (1552–1634, who instigated the Petition of Right of 1628), gave it a much wider coverage, both in terms of whom it covered and as a legal rather than an essentially political document.
Mandamus was one of the traditional common law prerogative writs like certiorari and prohibition, and is Latin for ‘we command’. It was an order issued by a court, in the United Kingdom by the Divisional Court of the Queen’s Bench Division, instructing someone or some organization to carry out some public duty which it was within his or its office to do. It was particularly relevant here in enabling a court to enforce statutory rights where some administrative body had failed to perform its functions. Like all such powers, its exercise by a court was discretionary; furthermore, in British public law, the court would not issue an order of mandamus if there was any other legal remedy available to the applicant.
Margin of appreciation
The margin of appreciation is a technical concept in the jurisprudence of the European Court of Human Rights (ECHR), though it has echoes in other constitutional law contexts. What it means is that the ECHR will avoid, if at all possible, finding a member state guilty of transgressing the European Convention on Human Rights, if it appears that the nature of the state’s behaviour might appear very different if viewed from a particular national context. The point is that only those fully involved in a policy issue, and immersed in the local political and legal culture, can fully understand the meaning, nature, and impact of any particular state action. As so many human rights decisions involve balancing competing rights claims, this view obviously makes sense much of the time. Only those with very absolutist views on the nature of rights could object completely to the idea of giving each state a margin of appreciation for local conditions. In a sense, the doctrine is nothing more than a legal equivalent of the constitutional doctrine of subsidiarity, to which all European agencies are committed. At the same time, there are obviously parts of the European Convention which tend towards the absolute in rights terms: torture really is torture whatever the local conditions. However, an issue like whether or not Sikhs should be forced to wear crash helmets, and not turbans, when on a motor cycle, or whether films some consider as containing blasphemy can be censored, would seem to be ones where an outsider would have real difficulty in balancing the rights involved. The idea itself, rather than the details of the doctrine, is common to federal style jurisdictions; it is partly what lies behind deference to states’ rights in the US Supreme Court. Similarly, the British Law Lords, when sitting as the Privy Council and hearing constitutional appeals from the West Indies, have sometimes taken the view that they must defer to the views of the local courts for reasons very much like those which underlie the margin of appreciation doctrine.