Magna carta Frustrated?: Institutional Delay in the Pacific Island States of the Commonwealth

David Clark

    Research output: Chapter in Book/Report/Conference proceedingChapterpeer-review

    Abstract

    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.

    Original languageEnglish
    Title of host publicationMagna Carta and its Modern Legacy
    PublisherCambridge University Press
    Pages123-143
    Number of pages21
    ISBN (Electronic)9781316285718
    ISBN (Print)9781107112773
    DOIs
    Publication statusPublished - 1 Jan 2015

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