In many of the world's democracies, the judicial branch is supreme. Judicial review allows it to have the final say over the laws of the land, as well as decisions made by the other branches of government. In other words, the judiciary, alone, resolves controversies about the legitimacy and scope of legislation or executive action. Usually what this means is that a higher court exercises the authority to nullify legislative and executive actions on the basis of the constitution.

In the United States in particular, a supreme, federal court accomplishes this task by strategically selecting case law that bears constitutionally on other cases and legislative statutes. The upshot is that it frequently restrains the other branches, if not rebukes them. The seminal Marbury v. Madison [1803] decision inspired a series of subsequent decisions in which the court either struck down or affirmed national and state laws, even though they could not punish executives if they were to ignore their judgments. The Supreme Court's 2012 decision in National Federation of Independent Business v. Sebelius, which declared the Affordable Care Act constitutional, is perhaps the most notable recent example.

This is a very puzzling development. The judicial branch lacks any obvious way in which it can enforce its decisions; it lacks a militia or any other organised coercive force that can sanction the other government branches if they disobey its decisions. Moreover, the judicial branch lacks the power of the purse – it is at the mercy of the legislative branch for financial support. And furthermore, in the U.S. system and several other democracies characterised by judicial supremacy, judges are appointed by executives and vetted by legislatures. Even though unelected justices have the final say over the constitutionality – and thus legitimacy – of a country's laws in these contexts, they seem, in the most basic sense, beholden to the other branches of government.

Magna Carta is revered by citizens and human rights activists all over the world. It has become a symbol for limited government and constitutionalism used by political theorists, constitutional drafters, political elites and even ordinary citizens to justify constraining political power. Thus, when Jay-Z entitled his most recent album Magna Carta … Holy Grail, he was signalling his aspiration to constrain the power of the recording industry, just like Magna Carta was meant to constrain King John. The irony is that ‘[i]n 1215 Magna Carta was a failure’. King John completely ignored the edicts set forth in the Charter, which led England into the very civil war that the Great Charter was meant to prevent. Why, then, do we celebrate this historic piece of parchment? Put differently, how has the significance of Magna Carta come to be equated with that of the Holy Grail?

This volume sets out to answer the question. In doing so, it makes two contributions to the extant literature. First, it commemorates Magna Carta's 800th anniversary by detailing its influence in the United Kingdom and abroad. The book reviews the existing historical and legal literature on Magna Carta as well as providing some new insights about its influence. These new insights are generated by moving to a more systematic conceptualisation of influence. Second, the volume begins a dialogue with the literature on constitutional design. This is a quickly evolving, interdisciplinary literature that spans economics, history, law, political science and sociology. We believe that those interested in constitutional design have much to learn from modern understandings of Magna Carta, and we therefore provide some examples of how reflecting on Magna Carta can provide lessons for those interested in modern constitutions.

This introductory chapter proceeds in three sections. The first provides a bit of history about the making of Magna Carta and its contents. The second defines what we mean by influence and provides a typology for analysing the influence of Magna Carta.

On the 750th anniversary of Magna Carta, the English philosopher Michael Oakeshott published a review of J. C. Holt's seminal work, Magna Carta. Oakeshott begins his review by stating that ‘the historical understanding of the Great Charter, like that of nearly every important event or occasion, has emerged gradually out of the quite different enterprise of assigning it a significant place in the legend of English life’. This is but one of numerous, yet sporadic, allusions Oakeshott makes to legend and myth in general, and to the English legend in particular, in his works. In spite of the intermittent nature of such references by Oakeshott, it is nevertheless possible to gather from his limited writings on the subject that this type of narrative plays a fundamental role in relation to the political.

Oakeshott holds that the political enterprise of legend-making – that is, of ‘constructing and confirming a social identity and consciousness by establishing a significant relationship between present moods and past events [–] is a perennial practical necessity’. This statement suggests that legend and myth play a foundational role in relation to a political society's identity and sense of self-consciousness. Moreover, the distinction Oakeshott draws between the historical understanding of Magna Carta and the legend-making enterprise intimates that a different sort of past, a legendary past, is involved in legend-making and that it is indispensable for the political. However, despite the central role Oakeshott attributes to legend and myth, he never fully theorises their political function. In this sense, commentators have noted that the idea that a society requires a foundational myth if it is to have the requisite social cohesion is ‘one that [Oakeshott] never really worked out in detail; it is the source of some unresolved tensions in his thought’. Although he never fully worked out his concept of legends of political life, he nevertheless asserts that the English legend of political life, in which Magna Carta occupies a significant place, constitutes a necessary political and practical enterprise.

The law's delay has been the subject of complaint at least since Magna Carta 1215 and of course was satirised by Charles Dickens in Bleak House in the famous case of Jarndyce v. Jarndyce. It also remains a problem despite constitutional obligations to guarantee a trial within a reasonable time. The standard of a trial within a reasonable time is now found in most of the written constitutions of Commonwealth countries, including in the Pacific Island Commonwealth states covered by this chapter. The central difficulty with this or any other legal standard expressed in very general terms is how to implement it. This was, of course, a feature of Article 40 of Magna Carta 1215 and its statutory successors in Article 29 of the 1225 and 1297 reissues of Magna Carta, in which the promise not to delay justice did not explain what delay meant or indicate how this was to be measured or enforced. Magna Carta did not impose limitations on the king's power, but through the efforts of later generations, it led to limits on executive power and the development of a tradition of constitutional government. It was left up to later generations to create new rights and to give content to old promises. As a Fijian court pointed out in 2008, the law should not stand still, and since Magna Carta, common law courts and parliaments have changed the law.

This paper considers both the direct and indirect influence of Magna Carta. The delay issue was specifically mentioned in Article 40 of Magna Carta (1215), and that article has traditionally been referred to in modern cases as the origin of the view that justice should not be delayed. As we shall see, there are major problems with this medieval promise, and in practice, the influence of Magna Carta has proved to be indirect in that it was only in modern constitutions that the promise not to delay justice was given a contemporary juridical foundation.

When British public lawyers proclaim Magna Carta's influence in Britain's colonies around the world, they generally do so, even if obliquely, as a way of reconciling Britain's colonial past with its liberal-democratic and multicultural present. A narrative is thus constructed in which Magna Carta is presented as a symbol of a tradition of ‘English liberty’, which Englishmen took with them when they went abroad to settle these colonies and which endures to this day. English liberty, thus conceived, includes the right to personal liberty, the right to personal security, freedom from imprisonment without just cause, and the free use and enjoyment and disposal of all property. To this list could be added the right to representative government.

In this chapter, I wish to challenge the foregoing account of a tradition of English liberty, as symbolised by Magna Carta, which England bequeathed to its former colonies, insofar as it relates to the so-called ‘sugar colonies’ of the Commonwealth Caribbean. In particular, I wish to argue that the version of English liberty that was exported to the West Indies in the seventeenth and eighteenth centuries by the first English settlers is not adequate to the task of reconciling Britain's colonial past with modern conceptions of democracy or multiculturalism. More than this, I wish to argue that the legacy of English liberty in the Commonwealth Caribbean is no mere matter of historical interest, but continues to be deeply problematic because of its lingering influence on contemporary human rights jurisprudence in the region.

I will begin by linking the transmission of Magna Carta, and the other bundle of rights associated with the concept of English liberty, to the arrival of the first settlers in the region who were determined to claim English liberty as part of their ‘colonial birthright’ as Englishmen. I will proceed to examine how these settlers succeeded in claiming the rights and privileges associated with English liberty for themselves while at the same time denying these rights and privileges to the West Africans transported to the region to work as slaves on their sugar plantations, who were subject to a set of brutal and oppressive Slave Code laws.

The idea for this book came from the Political Studies Association (PSA), which wanted political science to play its part in the 800th-anniversary celebrations of Magna Carta. Professor Justin Fisher of the Magna Carta Institute at Brunel and Jennifer Hudson of the PSA Executive asked me to organise a conference and a book, and I willingly agreed. It could have been a challenge to find something new to say about Magna Carta, but thanks to the contributors to this volume, I am confident that we have succeeded. So my first thanks go to them, for finding the time to write very interesting chapters and for coming to the United Kingdom to discuss their contributions with each other at a workshop held at the Constitution Unit in the School of Public Policy at UCL in June 2014.

Thanks must also go to the others who attended the workshop – Conor Gearty, Clodagh Harris, George Jones and Colin Munro – for their comments on the draft chapters; and thanks to our administrator, Ben Webb, for organising it with his usual enthusiasm and efficiency. We also express special thanks to the interns who have supported this project: Annabelle Huet, Daniel Helen and Chrysi Kalfa. Daniel's expertise as a medieval historian was particularly valuable.

For including the book in the Cambridge University Press series on comparative constitutional law and policy, we thank the editors, Zachary Elkins, Tom Ginsburg and Ran Hirschl. Our thanks also go to the anonymous reviewers of our book proposal and to John Berger, our editor at Cambridge. And we thank the PSA for funding the project and paying for the workshop in 2014 and the conference to launch the book in 2015. Without the PSA's foresight and support, this book would not have happened.

I reserve my last but warmest thanks to my colleague and co-editor James Melton. He has done all the hard work and ensured that everyone delivered on time (a first in my experience of edited books); he did so throughout with tact, good humour and quiet efficiency.

The United States is famously a nation founded on universal principles, not on blood. At least, that is the theory proclaimed today. Many American colonists and revolutionaries had a different view: they thought of their rights as an ancient inheritance based on their blood. Instead of declaring the universal rights of man, as French revolutionaries later did, Americans often insisted on their inheritance as Englishmen. At every opportunity in proclaiming their liberties, they harped on their ancestors and their descendants – fathers, children, posterity and so on. For the most part, they did not mean spiritual ancestors or descendants; they meant flesh and blood. The transformation from blood descent to spiritual descent came later, expressed most eloquently by Abraham Lincoln drawing on the words of the Declaration of Independence.

At the time of independence, many Americans believed that this inheritance was unchanging from ancient times, from ‘time immemorial’. No king or parliament could rightfully alter this birthright of the English people. The body of this inheritance was the fundamental laws of England, especially as expressed in Magna Carta. Magna Carta was pre-eminent as an embodiment of the fundamental law because its antiquity demonstrated the endurance of the inheritance. To early Americans, Magna Carta not only symbolised the general idea of a government constrained by a formal charter, but it described specific rights. The right Americans most often invoked in connection with the Great Charter was the right to trial by jury. The barons at Runnymede certainly did not intend to enshrine common law trial by jury, which hardly existed in 1215. In linking Magna Carta with jury trial, Americans were following a line of thought that had begun in the late Tudor period with antiquarians interested in tracing the ancient constitution of England, in many cases back to the Anglo-Saxons. Edward Coke and others in the seventeenth century celebrated this link between Magna Carta and jury trial in their battles against royal prerogative.

American scholars now argue that Magna Carta embodies a ‘proportionality principle’ mandating that the punishment fit the crime. This principle, according to a familiar narrative, found expression centuries later in the English Bill of Rights, which was reproduced another century later in the American Bill of Rights. The Eighth Amendment's prohibition on cruel and unusual punishments is thus said to originate in the dramatic encounter between the barons and King John on the fields of Runnymede. This story has proven to be of more than simply academic interest. Justices on the U.S. Supreme Court have claimed the authority of Magna Carta when infusing the prohibition against cruel and unusual punishments with a proportionality principle not immediately evident from the text of the Eighth Amendment. Thus emboldened, the Supreme Court has overturned supposedly disproportionate criminal sentences.

This essay questions much of this narrative. My claim is that the articles in Magna Carta that are now cited to stand for the principle that the punishment must fit the crime do no such thing because, at bottom, those articles do not concern criminal activity. Natalie Riendeau's contribution to this volume explores Magna Carta's role in the ‘legend and myth’ of English life (Chapter 11). This chapter supplements hers by identifying and exploring how a myth surrounding Magna Carta has shaped the discourse on the meaning of the U.S. Constitution's cruel and unusual punishments clause. Scholars and jurists have anachronistically deployed Magna Carta to resolve a contested issue of constitutional law.

My plan is as follows: the first section traces the uses made of Magna Carta by American jurists in advancing the argument that the ancient document embodies a proportionality principle. The argument has lately focused on Articles 20 to 22, which restrict ‘amercements’ to those ‘in accordance with the gravity of the offense’.