Magna Carta was introduced into China around the mid-19th century under the context that learning from the West was then a trend for Chinese politicians and the academia to modernize China. The English constitutionali...Magna Carta was introduced into China around the mid-19th century under the context that learning from the West was then a trend for Chinese politicians and the academia to modernize China. The English constitutionalism originating from Magna Carta was considered as one of the models for China to reference. Even though the constitutional reform in the late Qing Dynasty failed to establish the constitutionalism in China, the strive for rule of law and democracy in China was never disrupted from then on. In the first century of Magna Carta＇s introduction into China, the academia used the ideas of constitutional rights, the rule of law embedded in Magna Carta to influence constitutionality in China, especially to push forward the protection of human rights and democracy. Even though the constitutionalism was not finally established in the Republic of China, the research on Magna Carta inspired the idea of constitutionalism in China. In addition, the Chinese academia realized that what China should learn was the spirit of Magna Carta, and that the construction of Chinese constitutionalism shall be based on the context of Chinese history and culture.展开更多
It has been suggested Clause 33 of Magna Carta 1215 pertained to salmon and provided a legal foundation for English fishing because of the abolition of the king＇s fish-weirs. This commentary is a misunderstanding ...It has been suggested Clause 33 of Magna Carta 1215 pertained to salmon and provided a legal foundation for English fishing because of the abolition of the king＇s fish-weirs. This commentary is a misunderstanding since the Clause was not intended to rectify the king or his officers＇ behavior. Besides, the disappearance offish-weirs did not come about out of concern for the fisheries themselves, but owing to the navigation of the river This mistaken interpretation regarding Magna Carta may be comfirmed by the history of salmon fishery itself, because the fish did not disappear from the river till the middle of the 19^th century. This fact is an important evidence that the clause was violated and infringed. It also shows the clause seems to have had limited effect. It is clear that the clause not only failed to keep the Thames clear for ships, but also failed to provide a legal foundation for English fishing.展开更多
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 Char...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 importancc.展开更多
Along with the tradition of celebrating the importance of the Charter of 1215, there is a long tradition of skepticism concerning its purpose （which was not to achieve responsible government but to preserve the prope...Along with the tradition of celebrating the importance of the Charter of 1215, there is a long tradition of skepticism concerning its purpose （which was not to achieve responsible government but to preserve the property of wealthy landowners）, its force （it was annulled by the Pope and repudiated by the king within a few weeks）, and even its success as a peace treaty （war broke out within a few months）. The author will outline the reasons for skepticism, because we can only see what there is to celebrate in 2015, if we understand that the Charter of 1215 was the failed result of a reactionary armed tax rebellion by wealthy and powerful landowners, who were not trying to make a new constitution. What is there to celebrate？ The author will address that question by asking why the Charter of 1215 was neither void （as the Pope asserted） for repugnancy to the King＇s authority, nor voidable for duress. The author challenges the idea that the Charter of 1215 is the foundation of the rule of law in England, arguing that the rule of law goes back farther, and that the Charter of 1215 was very limited in its impact. But it did promote the rule of law in two ways： by giving new specificity to legal duties and restrictions that the king had already been subject to, and by highlighting the country＇s need for effective processes for giving effect to those duties and restrictions.展开更多
In interpreting the feudal contract between kings and nobles in medieval Western Europe,Western historians have tended to elaborate on its interaction,equivalence,and even equality,with an emphasis on the resulting re...In interpreting the feudal contract between kings and nobles in medieval Western Europe,Western historians have tended to elaborate on its interaction,equivalence,and even equality,with an emphasis on the resulting restrictions on the king's authority.However,this was not the case in England during this period.After the Norman Conquest,“imported feudalism”became a strong support for the English monarchy.On this basis,the feudal contract between kings and nobles evolved from an oral to a textual contract and from“personal commitment”to“collective negotiation,”in a process strongly marked by the coercion and inequality bestowed on such contracts by hierarchical feudal roles.In the course of this process,the English kings ceaselessly consolidated their power by breaking down the feudal customs reflected in agreements between the two sides.Although the Magna Carta,as a text-based feudal contract,made explicit provision for feudal customs,it failed to effectively constrain royal power.History shows that if we seek to elaborate on the reciprocity and even equality of the feudal contract from the perspective of modern social contract theory and thus exaggerate the nobles'right to resist the king,we will inevitably construct a mythical“feudal contract determinism.”展开更多
It has been argued that the legality of the writ of diem clausit extremum can be attributed to Magna Carta.In fact,the legal relationship between the writ and Magna Carta is still problematic in the English official d...It has been argued that the legality of the writ of diem clausit extremum can be attributed to Magna Carta.In fact,the legal relationship between the writ and Magna Carta is still problematic in the English official documents.Few scholars,domestically and internationally,focus on the topic which has constitutional significance in English legal history.My research on the topic is divided into four parts.In the first part,I will introduce and review the research background of the topic.It indicates that almost nobody recently shows any interest in the special topic except for Margaret McGlynn,who touched upon the topic in her book on royal prerogatives.In the second part,I would like to locate the topic in the English official documents and to search out the uncertain and discrepant parts that need resolving.In the third part,I will try to define and classify the writ of diem clausit extremum,and individually to trace back to its different legal foundations and legality.Finally,a brief conclusion will be given.It is concluded that the writ of diem clausit extremum is one of the royal prerogative writs,and has two different types,i.e.the Chancery writ and the Exchequer writ.The Chancery writ is not closely related with Magna Carta,while the Exchequer writ is undoubtedly founded on Magna Carta.Actually these different legality of the writ of diem clausit extremum can be attributed to the changing relationship between the common law and the statute law.展开更多
文摘Magna Carta was introduced into China around the mid-19th century under the context that learning from the West was then a trend for Chinese politicians and the academia to modernize China. The English constitutionalism originating from Magna Carta was considered as one of the models for China to reference. Even though the constitutional reform in the late Qing Dynasty failed to establish the constitutionalism in China, the strive for rule of law and democracy in China was never disrupted from then on. In the first century of Magna Carta＇s introduction into China, the academia used the ideas of constitutional rights, the rule of law embedded in Magna Carta to influence constitutionality in China, especially to push forward the protection of human rights and democracy. Even though the constitutionalism was not finally established in the Republic of China, the research on Magna Carta inspired the idea of constitutionalism in China. In addition, the Chinese academia realized that what China should learn was the spirit of Magna Carta, and that the construction of Chinese constitutionalism shall be based on the context of Chinese history and culture.
文摘It has been suggested Clause 33 of Magna Carta 1215 pertained to salmon and provided a legal foundation for English fishing because of the abolition of the king＇s fish-weirs. This commentary is a misunderstanding since the Clause was not intended to rectify the king or his officers＇ behavior. Besides, the disappearance offish-weirs did not come about out of concern for the fisheries themselves, but owing to the navigation of the river This mistaken interpretation regarding Magna Carta may be comfirmed by the history of salmon fishery itself, because the fish did not disappear from the river till the middle of the 19^th century. This fact is an important evidence that the clause was violated and infringed. It also shows the clause seems to have had limited effect. It is clear that the clause not only failed to keep the Thames clear for ships, but also failed to provide a legal foundation for English fishing.
文摘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 importancc.
文摘Along with the tradition of celebrating the importance of the Charter of 1215, there is a long tradition of skepticism concerning its purpose （which was not to achieve responsible government but to preserve the property of wealthy landowners）, its force （it was annulled by the Pope and repudiated by the king within a few weeks）, and even its success as a peace treaty （war broke out within a few months）. The author will outline the reasons for skepticism, because we can only see what there is to celebrate in 2015, if we understand that the Charter of 1215 was the failed result of a reactionary armed tax rebellion by wealthy and powerful landowners, who were not trying to make a new constitution. What is there to celebrate？ The author will address that question by asking why the Charter of 1215 was neither void （as the Pope asserted） for repugnancy to the King＇s authority, nor voidable for duress. The author challenges the idea that the Charter of 1215 is the foundation of the rule of law in England, arguing that the rule of law goes back farther, and that the Charter of 1215 was very limited in its impact. But it did promote the rule of law in two ways： by giving new specificity to legal duties and restrictions that the king had already been subject to, and by highlighting the country＇s need for effective processes for giving effect to those duties and restrictions.
文摘In interpreting the feudal contract between kings and nobles in medieval Western Europe,Western historians have tended to elaborate on its interaction,equivalence,and even equality,with an emphasis on the resulting restrictions on the king's authority.However,this was not the case in England during this period.After the Norman Conquest,“imported feudalism”became a strong support for the English monarchy.On this basis,the feudal contract between kings and nobles evolved from an oral to a textual contract and from“personal commitment”to“collective negotiation,”in a process strongly marked by the coercion and inequality bestowed on such contracts by hierarchical feudal roles.In the course of this process,the English kings ceaselessly consolidated their power by breaking down the feudal customs reflected in agreements between the two sides.Although the Magna Carta,as a text-based feudal contract,made explicit provision for feudal customs,it failed to effectively constrain royal power.History shows that if we seek to elaborate on the reciprocity and even equality of the feudal contract from the perspective of modern social contract theory and thus exaggerate the nobles'right to resist the king,we will inevitably construct a mythical“feudal contract determinism.”
基金an intermediate result of the Major Program of the National Social Science Fund of China"Studies on the Bibliography of British Economic and Social History"(Certificate No.17ZDA225).
文摘It has been argued that the legality of the writ of diem clausit extremum can be attributed to Magna Carta.In fact,the legal relationship between the writ and Magna Carta is still problematic in the English official documents.Few scholars,domestically and internationally,focus on the topic which has constitutional significance in English legal history.My research on the topic is divided into four parts.In the first part,I will introduce and review the research background of the topic.It indicates that almost nobody recently shows any interest in the special topic except for Margaret McGlynn,who touched upon the topic in her book on royal prerogatives.In the second part,I would like to locate the topic in the English official documents and to search out the uncertain and discrepant parts that need resolving.In the third part,I will try to define and classify the writ of diem clausit extremum,and individually to trace back to its different legal foundations and legality.Finally,a brief conclusion will be given.It is concluded that the writ of diem clausit extremum is one of the royal prerogative writs,and has two different types,i.e.the Chancery writ and the Exchequer writ.The Chancery writ is not closely related with Magna Carta,while the Exchequer writ is undoubtedly founded on Magna Carta.Actually these different legality of the writ of diem clausit extremum can be attributed to the changing relationship between the common law and the statute law.
