Tuesday, December 22, 2015

Tate on Magna Carta and Due Process

Joshua C. Tate, Southern Methodist University Dedman School of Law, has posted Magna Carta and the Fundamental Right to Due Process, which appears in Magna Carta: 800 Anos de Influência no Constitucionalismo e nos Direitos Fundamentais, ed. Zulmar Fachin, Jairo Néia Lima, and Éverton Willian Pona (2015), 129-137:
The 800th anniversary of Magna Carta has been marked by much pageantry and celebration. Some scholars have taken this opportunity to point out that the myth of Magna Carta is far greater than what the actual 1215 Charter managed to accomplish. Nevertheless, Magna Carta did make a meaningful and concrete contribution to due process in 1215, as shown by certain provisions that are seemingly overlooked by critics eager to downplay the Charter's importance. This Article highlights two lesser known clauses of Magna Carta that had real contemporary significance in guaranteeing the availability of jury trial for some categories of civil litigation. The ringing promises of Clauses 39 and 40 may have inspired great jurists and founders of nations, but the more humble Clauses 17 and 18 – specifying the proper location and manner of hearing certain civil cases – must also be taken into account in assessing the Charter's importance.

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