Public and private law in the magna carta

下面为大家整理一篇优秀的essay代写范文- Public and private law in the magna carta，供大家参考学习，这篇论文讨论了英国《大宪章》中公法和私法。《大宪章》是英国历史上的重要文献之一，由于这是专为限制君主权力而制定的法案，所以被认为是英国君主立宪制的法律基石。《大宪章》的制定目的是为了限制中世纪时期英王的权力。但是由于中世纪特殊的历史背景，英王拥有封君与国家元首双重身份和国家公权与封建私权双重权力，所以从现代法理的角度来看，《大宪章》中常常是私法、公法关系相互参杂，即便是同一条款也常常既涉及到公法关系又涉及到私法关系，而这也进一步佐证了中世纪时英国的王权、政治生活结构中国家公权、公法与封建私权、私法合一的特点。

The magna carta is one of the most important documents in British history. It is considered as the legal cornerstone of the British constitutional monarchy because it was designed to limit the power of the monarch. The analysis of the magna carta from the perspective of the relationship between public law and private law is helpful to understand the characteristics of British royal power in the middle ages and the structure of British politics, economy and society.

Public law and private law are a group of legal concepts. Before interpreting the magna carta from the perspective of jurisprudence, it is necessary to clarify the public law and private law in the sense of jurisprudence and the differences between them. The concept of public law and private law was first put forward by the Roman ulpian, who thought: "public law is the law concerning the stability of the Roman state, while private law is the law involving personal interests. Justinian further affirmed this theory in his law ladder: "this study has two fields, public law and private law. Public law was the law relating to the state of Roman public affairs; Private law is the law of personal relations." Since the Roman law, the distinction between public law and private law has been recognized, but there is no consensus on the distinction between the two in academic circles. At present, there are different viewpoints on the subject theory, power theory, interest theory, norm theory, public right theory and private right theory.

On the basis of analyzing the previous views, the article will take "the object of legal adjustment and the interest target" as the criterion to differentiate the relationship between public law and private law in the magna carta. That is to say, the object of adjustment is the social relationship between the state, the government, individuals and legal representatives, whose main purpose is to safeguard the interests of the state or society as a whole. The object of every adjustment is the relationship of mutual rights and obligations between equal individuals and legal persons, whose purpose is to safeguard private interests, which belongs to the category of private law.

The magna carta was made to limit the royal power, so when analyzing the relationship between public law and private law of the magna carta, it is necessary to briefly discuss the legal nature of the identity and power of Kings in medieval England. In the middle ages, royal power arose on the basis of primitive political framework of barbarian tribes and hierarchical ownership of feudal land, and was also influenced by the Roman church's theocratic culture. In such a historical background, the medieval England in its national government agencies, legislation, judicial mechanism and a series of state machine and testimonies also is not sound, king with double identity in political, economic, social life exercise double power, public rights and private rights often happen regardless, abuse of public power or private right to public power phenomenon, and then make the law in the sense of the king power nature more and more complicated.

The private law relationship in the magna carta was derived from the adjustment of the rights and duties between the feudal lords and the vassals based on the hierarchical feudal landholding relationship. It is a restriction on the power of the king as a feudal monarch. The subjects and interests to be reconciled are the private relations between the king and his vassals, between the nobles at all levels and their vassals, between the nobles at all levels, and between the king as a feudal monarch and the free people and the free people based on private interests. There are mainly the following aspects:

The land inheritance fee refers to the inheritance fee paid by the heir to the feudal Lord according to the obligation requirement after the death of the vassal. In order to grab more benefits, the monarch often broke the custom and increased the amount of inheritance levy. In 1205, for example, Nicholas DE staatville was forced to agree to pay the king 6,666 pounds for the inheritance of his brother's estate, and to pledge some of the estates and castles to the king, but was never able to recover them from him. Article 2 of the magna carta clearly defined the amount of inheritance money in response to the king's extortion. Article 3 the rights of a minor successor shall be protected, and the successor shall be returned to the estate he or she is due to inherit after his or her maturity, and no inheritance money shall be collected.

Shield gold refers to that the vassal should provide military service to the vassal according to feudal obligations. Assistance payment refers to the money that the vassal should support the vassal when the vassal needs financial assistance. With the strengthening of the royal power, shield gold and assist gold gradually became the way for the king to withdraw money. For example, in the reign of Henry ii and king Richard, the two Kings collected shield gold 11 times in 45 years, while king John collected shield gold 11 times in 16 years, and raised the standard of collection for each knight. These economic claims of the king were limited by the magna carta, and article 12 reaffirmed the three circumstances and purposes of the vassal's assistance payments: the ransom paid to save the king when he was captured, the knighthood of the king's eldest son, and the cost of the first marriage of his eldest daughter.

Judicial penalty. A judicial fine is a fine imposed by a court on an offender. The vassal often exploited this loophole by using the amount of fine to exploit vassal and free citizen. In order to limit the royal power and protect the interests of the vassal, articles xxii, xxi and xxii of the magna carta provided that fines should be imposed according to the degree of the crime, while the necessities of livelihood should be kept.

Marriage interference. According to the feudal power and obligation relationship, the daughter of the vassal must obtain the consent of the vassal if she marries or leaves frost to remarry and the guardian marries. In order to increase financial resources or to maintain and attract supporters, the vassal often interfered in the marriage of the vassal family. For example, in 1213, jeffery, the earl of Essex, was forced to pay a huge sum of 13,333 pounds to the king in order to marry his ex-wife, the heiress of the earl of gloucester. The magna carta imposed certain restrictions on such ACTS of banditry to harm the interests of banditry for personal gain. Article 6 stipulated that the status of successors could not be lowered and that successors should marry their match. Article 8 provides that if the vassal left frost voluntarily widowhood, can not force its remarriage.

At that time, under the frequent pressure of the king, it was common for nobles to bear royal debts. Many nobles had to borrow usury from jews or bishops who had close relations with the king in order to pay off the debts of the king. For example, "in addition to 1163 pounds owed to Henry iii, aristocrat Nicholas DE stavelle owed 9,998 pounds to king John, which would have taken 250 years to settle at 40 pounds a year." In response to the above, article 9 of the magna carta provides for the rights and obligations of the debtor and the guarantor: where the personal property of the debtor is sufficient to repay the debt, no one may take its land or rent by force. Article 10 and article 11 the interests of the minor children and the wife of the deceased debtor shall also be protected.

The public law relationship in the magna carta is mainly reflected in the administration and protection of nationals by heads of state and government according to law and the exercise of their functions in taxation, judicial administration, military affairs and other state social affairs. The public law relationship in the magna carta is mainly reflected in the following aspects:

People's rights are guaranteed. The magna carta deals with the fundamental rights of the people, including the protection of personal safety and property rights, which are the most basic rights and obligations enjoyed by citizens and fall within the scope of the constitution. Personal safety is the basic right of the people and the precondition of enjoying other rights. Article 39 of the magna carta provides for the most basic form of habeas corpus for British citizens: no free person shall be arrested, imprisoned, deprived of property, deprived of legal protection, exiled or otherwise injured without a lawful judgment by his peers or national law. The magna carta also has relevant provisions to protect the lawful private property of citizens. Articles 28, 30, and 31 stipulate that a magistrate, a subordinate of the king, or an executioner, shall not take money or goods of his own without the consent of the owner. Although the original intention of the above articles was to resist the abuse of public power by the king, they objectively declared the basic power of the people in the form of constitution. We will standardize judicial and administrative procedures. In medieval England, both Kings and lords had certain jurisdiction, which often endangered the security and interests of nobles or freemen. In order to limit the abuse and expansion of the royal power, the magna carta stipulated relevant judicial and administrative procedures. For example, article 17 of the magna carta requires a fixed place of action for judicial proceedings. Article xxii, xxi, xxii, xxviii, and xxii regulate the trial procedures, emphasizing that credible evidence and the oath of upright witnesses should be provided at the time of conviction. When a noble or a priest commits a crime, it is necessary to have "peer" jury. Otherwise, it is illegal and shall not be punished.

Stipulate the principles and procedures for tax preparation. Tax in the category of public law is tax in the sense of national tax. The mark of national tax is: for the public need of the country, with unified standard all free people and society are collected in the country; The consent of the body representing the whole generation must be obtained. Namely must satisfy the public to be necessary, the public agrees these two conditions. Among the provisions of the magna carta concerning the principles and procedures of taxation are: article 12 stresses that taxation shall be subject to the approval of the national public will. Article 14 provides for specific measures, that is, in order to understand the general will of the country, the archbishop, bishop, abbot, count and baron should be called to a meeting to discuss before collecting taxes.

Relevant provisions of public international law. The magna carta also contained provisions dealing with the treatment of nationals of hostile states and the entry and exit of states in time of war. As provided in article 41: in wartime, the treatment of Chinese nationals in an enemy country shall be probed and treated in this way for the safety of Chinese nationals and businessmen of the enemy country. Article 42 also provides that any person loyal to our country may freely and safely enter or leave our territory by water or land, except for prisoners and persons who are not protected by law and who, except in wartime, have a little control over the interests of the state.

In short, the magna carta was designed to limit the powers of the English Kings during the middle ages. But because of the special historical background of the middle ages, the king has seal jun and the dual identity of state and national public power and the feudal private rights double power, so from the perspective of modern legal theory, the magna carta is often in the private law, public law relationship mixed each other, even the same terms and conditions are often involved in public relations and involves the private law relationship, and this is further evidence of the middle ages British royalty, in the political life of the structure of "national public power, the feudal private rights, private law and public law and characteristics.

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