800 Jahre Magna Charta Libertatum Revisited – Mythos und mehr - 10.1628/000389216X14767803976661 - Mohr Siebeck

Helmut Goerlich

800 Jahre Magna Charta Libertatum Revisited – Mythos und mehr

Section: Treatises
Archiv des Völkerrechts (AVR)

Volume 54 () / Issue 2, pp. 153-180 (28)

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With the 800th anniversary of Magna Carta, this paper takes the opportunity to reconsider the role of this constitutional document and the perspectives that have informed its reception in Germany, with a view to proposing that its value lies in more than mere myth. The interpretation of Magna Carta in Germany mirrors German constitutional history: as such, the Charter is widely seen as an instrument guaranteeing nothing more than judicial safeguards of proper procedure for life, liberty and property. This can be explained by the fact that the »rule of law« in the German sense is perceived through the prism of the Rechts staat (constitutional state), itself the result of 19th century compromises in constitutional doctrine. But Magna Carta has meaning beyond this perspective. This paper thus not only delves into the history of Magna Carta's reception over the last 800 years; it also establishes the wider function of Magna Carta as the basis for the idea that government is subordinate both to law and to the governed. This concept of the Anglo-Saxon tradition places all activities of public authority under the law. Consequently the state is not a category independent of the law. In this sense Magna Carta is more than a mere myth. It still has a function in constitu tional law beyond its content and wording, in large part consisting of outdated clauses overruled by subsequent legislation. Indeed, the long history of claiming rights in the light of Magna Carta has become the prelude to a growing generalization of the rights claimed as human rights in general.

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