This chapter assesses the richest source of positive law on the right to resist, in its historical and contemporary iterations. It first considers several examples of antecedent provisions for lawful tyrannicide in ‘ancient constitutions’ or equivalent law including customary law. It then reviews examples of provisions for a right to resist unlawful exercise of power in Middle Ages ‘constitutions’ or public law equivalents including customary law, and other quasi-constitutional sources such as coronation oaths, as well as intervention appeals rooted in custom. It concludes consideration of the historical right to resist provisions with a review of key modern revolutionary republican and anti-colonial foundational declarations and constitutions. The remainder of the chapter concerns approximately forty contemporary constitutional provisions for the right to resist in African, Asian, European, and Latin American constitutions. Using the template developed in Chapter 4, it provides comparative analysis of their legal features and content. Finally, the chapter evaluates the provisions’ legal meaning by way of a two-fold typology, and their legal value against the question of ‘sham law’.

The Magna Carta is probably the most famous British document, composed in Latin in 1215 to record the agreement between king John and his barons regarding the king’s responsibilities and the rights of the people. Here several clauses are excerpted from the 1225 version published under king Henry III, with references given to the clauses in the 1215 version. These clauses relate to women’s incomes, the right to basic maintenance, standardisation of weights and measures, the problems caused by obstructions in rivers, each person’s right to a swift and fair trial, and freedom of movement for foreign traders.

Chapter 8 illuminates the intermediary stages of litigation before the early Tudor kings. It takes up the little-studied perspective of defendants in cases heard by the king’s Court of Requests and examines the potential for even this most authoritative kind of justice to be resisted. The chapter begins by studying the testimonies of messengers, recorded in Requests’ order books, for evidence of accused parties evading or rejecting the initial summons into court. It then reconstructs the process by which defendants made formal answers to petitions, and outlines the arguments they raised in their own defence. In line with debates ongoing contemporarily in Parliament and Council, defendants’ answers often contrasted extraordinary royal justice with the due process enshrined in English law. These lines of contestation were crucial to the increasing definition of royal justice under the early Tudor regimes, this chapter argues.

The law of the virtual Roman Empire persisted throughout the Middle Ages, combined with customary law, like Salic law, or Saxon Law. Roman law was rediscovered and studied in the first universities in Western Europa. Legal scholars of the day made comments and thus developed so-called canon law: a mix of roman, medieval and religious law. At the same, as a result of feudal relations, quid pro quo documents, like the magna Charta and Joyous entries, emerged, granting different classes different privileges and rights in turn for assistance, tax and loyalty to a ruler. This marked the beginning of conditional power and the rule of law.

‘Law’ and ‘constitution’, like other concepts we use to make sense of the world, have a history.1 In the case of law, part of that history is the ongoing interplay between two different ideas. One is that law concerns what people should, should not and may do. In other words, law is ‘normative’. Another is that law is a product of human activity. Human beings and institutions can and do make and enforce legal norms.

‘[O]ur whole constitutional law seems at times to be but an appendix to the law of real property.’1 At no time in English history was this aphorism truer than in the aftermath of 1066; indeed, it became uniquely so as a consequence of the kingdom’s conquest. England’s legal tradition was already distinctive prior to that point. The circumstances of the Conquest, and the rapid substitution of a new aristocracy of foreign settlers, rendered it doubly so. The importance of the Conquest and its implementation in the development of English law, and especially the law of real property, can scarcely be overstated.

Among the first historical writers to reflect on the long sixteenth century (1485–1603), Sir Francis Bacon marvelled at the dynastic fortunes of the Tudor monarchs. Henry VII had ridden from distant exile to win his throne at Bosworth Field (1485) yet his son Henry VIII was a king ‘absolute in the sovereignty’. Then came the reigns of ‘a king in minority; of a queen married to a foreigner; and lastly of a queen that hath governed without the help either of a marriage, or of any mighty man of her blood’.1 These circumstances – a bloody usurpation, the rule of a minor and then by females – seemed perilous to contemporary observers. Contested successions and vulnerable rulers had led to the Wars of the Roses (1455–1485). Even the death of the childless Elizabeth I raised fears about civil war. Consequently, James VI and I’s peaceful accession to the English throne in 1603 signalled a remarkable achievement. After the tumults of the fifteenth century the Tudors had successfully defended their dynastic claims and reconstituted royal authority.

The year 2015 witnessed celebrations around the world of an event that took place 800 years earlier in a meadow west of the city of London near what is now Heathrow Airport. Then, the main participants were King John on the one side, and leading barons and prelates on the other. They had gathered to sign up formally to a document (which came to be known as Magna Carta) with the aim of forestalling violent rebellion against the monarchy. Eight centuries later, four provisions of the 1297 re-issue of Magna Carta still decorate the United Kingdom’s statute book even though the document was not a ‘statute’ (or, for that matter, a ‘law’) in the modern sense and the surviving provisions are of no practical significance.

This chapter explores the most well-known English constitutional text and the period that followed its enactment. It explores how Magna Carta was a much more mundane and feudal document than its reputation suggests. It also examines how it was by no means the sole kingly concession during this period and discusses the origins of Parliament and how this affected the common law. The chapter falls into three sections. The first section discusses the importance and effect of Magna Carta. It explores what Magna Carta said and what effect it had upon feudalism, the operation of courts, governance and upon immigration. The second section will then explore the debate concerning the role the charter played in the development of Parliament, examining what Magna Carta said and also the importance of alter developments during this period. The final section will examine the impact of the charter upon the position of women.

This chapter examines the influence of Magna Carta on the development of rights and liberties in the Anglo-American common law tradition. Originally issued by King John of England in 1215, Magna Carta and several later medieval sources set forth numerous prototypical rights and liberties that helped to shape subsequent legal developments in England, America, and the broader Commonwealth. Magna Carta inspired sixteenth-century Puritan dissenters in Elizabethan England and seventeenth-century English jurists like Sir Edward Coke and Puritan pamphleteers like John Lilburne, who advocated sweeping new rights reforms on the strength of the Charter. Magna Carta also inspired more directly the new bills of rights and liberties of several American colonies, including notably the expansive 1641 Body of Liberties of Massachusetts crafted by Nathaniel Ward, and many of the rights provisions in the American Declaration of Independence, the original state constitutions, and the US Constitution and Bill of Rights.

This chapter examines the influence of Magna Carta on the development of rights and liberties in the Anglo-American common law tradition. Originally issued by King John of England in 1215, Magna Carta and several later medieval sources set forth numerous prototypical rights and liberties that helped to shape subsequent legal developments in England, America, and the broader Commonwealth. Magna Carta inspired sixteenth-century Puritan dissenters in Elizabethan England and seventeenth-century English jurists like Sir Edward Coke and Puritan pamphleteers like John Lilburne, who advocated sweeping new rights reforms on the strength of the Charter. Magna Carta also inspired more directly the new bills of rights and liberties of several American colonies, including notably the expansive 1641 Body of Liberties of Massachusetts crafted by Nathaniel Ward, and many of the rights provisions in the American Declaration of Independence, the original state constitutions, and the US Constitution and Bill of Rights.B1:L8

This chapter considers the first cases arising from African detentions in which courts in London considered the legality of ad hominem ordinances. The first case taken to the Privy Council was that of the Mpondo chief, Sigcau, who was detained in Griqualand East in 1895. Although the Privy Council rejected the Cape government’s appeal from Chief Justice de Villiers’s decision to free him, it confirmed that a sovereign legislature could authorise ad hominem detention laws. In the second case, that of chief Sekgoma Letsholathibe, the Court of Appeal upheld a detention proclamation, rejecting arguments which claimed that the detainee had common law rights confirmed by Magna Carta, by holding that parliament had validly delegated its legislative power through the Foreign Jurisdiction Act. In the third case, that of Saad Zaghlul Pasha, the Privy Council also rejected a claim for common law rights of liberty, on the ground that, in crown colonies, the crown had full power to detain under its prerogative. These cases show that, when questions of the liberty of Africans came before English judges, they opted for a formal vision of rule by law over a substantive vision of the rule of law.

To explain how broader sections of the population than the nobility were included in Parliament we need to recapture the original character of representation as obligation. The chapter therefore presents the compellence model of obligation, which is predicated on ruler strength. The model is exemplified by the English case, which is traditionally taken as the paradigm for the alternative and most widely invoked model, which sees representation as the result of bargaining. Magna Carta is the classic historical precedent and it is here shown to depend on royal strength instead. The role of ruler strength and obligation is then further demonstrated by process-tracing the emergence of the English Parliament from the 1220s into the early 1300s. Though bargaining was pervasive, what channelled outcomes in a constitutional direction was the crown's capacity to enforce attandance across social orders. Bargaining was pervasive on the continent as well; what differed in England that the bottom-up requests for rights were preceded and followed by periods of strong royal capacity. The "fiscal fixation" of much social science thus needs to be revised. The institutional and, especially, judicial infrastructure in which state-society bargaining occurs is what shapes ultimate outcomes.

This chapter traces foundations for the organizing framework of the modern nation-state to post-Conquest England. Feudalism was essential, as institutionalized in the royal prerogative, administrative kingship, and covenantal social bonds. I focus on the historical factors that made England distinctive, in this period, both in the intensity of its feudal structures and in the strength of royal, prerogative powers. I argue that a unique combination of Anglo-Saxon legal legacies with the Norman Conquest's imposition of powerful rulership facilitated the coalescence of a regime involving new levels of social power. Roman law, canon law, and English common law each played vital roles in this coalescence, with new levels of economic growth fueled by new types of legal privileges. Development of new technologies, for example the windmill, was one result.

This chapter traces a rising national consciousness in English law and legal institutions, focusing on the implications of this for the broader shift from medieval privileges to modern intellectual property. The shift is presented through a narrative highlighting the roots of Parliament in the legal principles and transcendent appeals established in the wake of thirteenth century baronial revolts. We see the impacts of this nationalizing legal revolution in the thought-world of the great monastic chroniclers at the Benedictine abbey of St. Albans. And we see the historical legacy of this nationalizing legal revolution in the rise of statutory supremacy and positive legality. These interrelated developments occurred through processes of semantic legal ordering, in which Parliament appropriated traditional rights of prerogative kingship and the church, establishing itself as the guardian of property owned by an increasingly-vocal class of subjects invested (materially and spiritually) in the Protestant Reformation. Two statutory foundations for modern intellectual property resulted from these complex developments: the Statute of Monopolies (1624) and the Statute of Anne (1710).

This chapter surveys the legal history of the term "due process of law," from Magna Carta, the Statutes of Edward III, and the Petition of Right to the writings of William Blackstone and the opinions of antebellum state-level court cases. It argues that there was no concept of "substantive due process" in the antebellum period. It refutes arguments that due process prohibited class legislation, limited states to reasonable exercises of the police powers, or underwent a change in meaning as a result of abolitionist constitutional thinkers.

A chain novel is written by two or more authors. The first author writes a few hundred words, then passes it on to the next author, who picks up the story and then passes it on to another author, and so on. Each author tries their best to develop a coherent story, based on everything that has come before, while adding their own changes and developments in the most recent chapter. It’s a lot of fun.

Chapter 3 examines the Petition Clause of the First Amendment. Petitioning is the oldest of the rights of the Democratic First Amendment, with roots in pre-Norman England and given explicit protection in the Magna Carta in 1215. It originated as a means for individuals to seek redress from the king for private harms. During the seventeenth and eighteenth centuries, however, it evolved into a means for citizens, generally acting in groups, to seek changes in public policy from the legislature. As such, petitioning was an essential element of democratic governance in America during the colonial era and the early Republic. It was a crucial means for citizens to bring their concerns to the attention of their elected representatives in between elections, and the only means for citizens who could not vote – which during this period meant the majority of citizens — to influence their government. Furthermore, during this period American legislatures felt an obligation to respond to properly filed petitions. Petitioning declined during the years leading up to the Civil War, however, and in our modern democracy it unfortunately plays a relatively trivial role.

In 1215, on a floodplain on the bank of the River Thames, King John of England met with a group of rebel barons to negotiate a peace treaty. The meeting at Runnymede, about halfway between the fortress of Windsor Castle and the camp of the rebels, became one of the most significant events of Western political history. After raising heavy taxes to fund an expensive and disastrous war in France, King John was deeply unpopular at home. He ruled with might and divine right; the king was above the law. He regularly used the justice system to suppress and imprison his political opponents and to extort more funds from his feudal lords. The peace charter promised an end to the arbitrary rule of the king, guaranteeing the liberties of feudal lords. The document became known as Magna Carta (the “great charter”), described by Lord Denning as “the greatest constitutional document of all times – the foundation of the freedom of the individual against the arbitrary authority of the despot.”1