The Magna Carta was a bad document

I recently listened to a podcast about the Magna Carta which got me thinking, always a dangerous prospect. Perhaps it is unfair to view Magna Carta in the light of modern common law, but if we did, how would it stand up to scrutiny? In short, did Stephen Langton, the archbishop of Canterbury, do a good job drafting it?

Not one of the 53 involved parties was particularly happy about the document. It was at best a temporary truce in the ongoing power struggle but none was so very displeased with it that Stephen Langton was never asked to draft a document again.

It was probably not a no-contest signing as there were at least 27 named counsellors to King John that wrangled him into it. Both parties brought armies to the actual sealing of the document to prevent any sort of legal mishaps.

It is relatively short; this would have been a good thing if it were not so terribly incomplete. While the Magna Carta does a good job of enumerating all the material limitations on the king, it is awfully short on the sort of procedural stuff we take for granted in modern legal documents. There are no severability, indemnity, and variation clauses in the document. Force majeure might have been an intentional omission by the drafter.

Most problematically there is no dispute settlement mechanism, meaning it reverts to default venue. As it turned out the default venue was the field of battle where the document was bloodily renegotiated in 1216 and again 1217

The language of the Magna Carta is Latin as was customary at the time; however, it is hard to say if the clauses were well understood. Scholars and enthusiasts have for centuries debated the meanings of “wainagium” or “salvo contenemento suo." A little bit of elaboration would have gone a long way and, given the chosen venue of settlement, saved lives.

This leaves us the question of balance. King John gives up a lot of what he and his predecessors had considered perks of the job. He did retain some formal tax powers out of it but not enough to reconquer his lost familial lands in France

In the modern world there is quite a lot of legal hazard involved in a private firm advising the head of state to go to war but King John lived in a day before UN charters and jus ad bellum. If he had been a client at Kyra Law we would probably have advised him to fire the archbishop and hold out for a better deal.