William & Mary Bill of Rights Journal
Abstract
This Article attempts to resurrect rights-talk in Magna Carta and, in doing so, to revisit rights discourses in the histories of rights more generally. It does so by means of a rights discourse that is axiomatic and therefore arguably free from the contentious underpinnings that potentially beset many historical accounts of rights. This is the formalistic account of rights offered by influential legal theorist Wesley Hohfeld. Against charges that it is anachronistic to apply a modern formalist legal theory such as Hohfeld’s to pre-modern sources, it is contended that this same accusation could be levelled at any other attempt to trace a modern concept into premodern sources, as I demonstrate in this Article. This Article nevertheless will carefully attend to contextualising the sources and explaining the methodology. In applying Hohfeld’s so-called “fundamental legal conceptions” to the provisions of Magna Carta, this Article is consistent with recent works by Thomas Duve advocating an approach to legal history that incorporates “praxis.”
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Part I outlines a proposed solution to this problem, namely the analysis of rights put forward by legal theorist Wesley Hohfeld, contrasting this to historian Brian Tierney’s well-known studies on the lineages of rights analysing objective and subjective understandings of the term ius and a later iteration examining permissive natural rights. It also turns to the notion of praxis hinted at by Tierney but given greater emphasis in recent scholarship by Thomas Duve. Part II provides the background to the problem of rights in Magna Carta by outlining its provisions and then tracing scholarship on it: the traditional approaches before Holt, which found a place for discussions of rights; the monumental work of Holt, which shifted the focus away from rights; and the diversity in readings that followed Holt, further moving away from rights. Part III then turns to Hohfeld in praxis by applying his conceptions of legal entitlements to the provisions of Magna Carta. It also, by way of contrast and illustration of the usefulness of Hohfeld in this context, applies Tierney’s rights analyses to those chapters. Part IV completes this revisiting of rights-talk in Magna Carta by comparing and contrasting the approaches of Holt, Tierney, and others with Hohfeld in their conception of the traditional binary that separates conceptions of rights as modern (individual) or pre-modern (communal). The Article concludes with some observations on how the term “rights” can still be meaningfully applied to historical examinations of Magna Carta and rights more generally albeit with some important qualifications.
This abstract has been taken from the author's introduction.