Magna Carta and Antisemitism: Call to Justice for all

About the Speaker: Henry Ergas AO

Henry Ergas AO is a long-time columnist for The Australian and in recent times his analysis of the rise of anti-semitism has been forensic.

It has helped explain this phenomenon and show how deadly it can be to societies like our own that are based on the idea that everyone is entitled to the equal protection by the law.

That idea – equal treatment – can be traced all the way back to Magna Carta. And that is what this year’s address is all about: From Magna Carta to Anti-semitism – the call for justice for all.

We are honoured to have Mr Henry Ergas AO give the 2025 Robin Speed Memorial Lecture.

About the Magna Carta: Why is 2025 an important anniversary year?

As Mr Ergas AO outlined in his speech:

“That is all the more the case as this year marks the 800th anniversary of the 1225 version of Magna Carta which was granted by Henry III, confirmed by Edward I and then reconfirmed on at least 36 occasions after that. It was the 1225 version, rather than that signed a decade earlier at Runnymede, which was usually found in English statute books, both manuscript and printed. And when, at the end of the 16th century, the “great charter” was put to work protecting and extending British freedoms, it was on the 1225 version that Sir Edward Coke and the other giants of the common law pinned their case.

 

If the Runnymede Charter of 1215 was, as Sir John Baker—the doyen of English legal history—has argued, “little more than a footnote to history”, that of 1225 played a starring role. Enshrined as the inheritance of all British subjects, central to the liberties that defined the “ancient constitution”, it came to symbolise everything we think of as the rule of law.

It would be easy to show that the symbolism bore a tenuous relationship to its authors’ intentions. Already in 1905, Edward Jenks castigated as a myth the portrayal of the Charter as a giant step to modern liberty. Far from opening the road to freedom under law, Magna Carta was, he wrote, “simply a recognition of the privileges of an aristocratic class.”

There is, in that charge, an undeniable element of truth. Yet few things are more potent than myths—and what matters in the Great Charter is the uses to which the myth was put. As Robert Menzies said in Parliament on August 11, 1952, welcoming the arrival in Australia of one of the fourteen then known copies of the 1297 Charter—a copy his government had acquired for the National Library—“It is not to be supposed that the Barons at Runnymede in June of 1215 were thinking exclusively of other people. There is no doubt that they were thinking a great deal of their own rights.”

But however self-interested the barons’ may have been, the record they secured of their rights had “acquired enormous significance ever since”. More than any other single document in English history, it “seized the imagination of men of intelligence, and because it seized their imagination, it gave rise to later developments in the expression of civil rights that led up to the Bill of Rights.”

The fruit of that imagination, Menzies went on to say, was “the principle of the rule of
law, and it is because the Great Charter gave rise to this deep-seated feeling in the English
mind, and then to the whole English-speaking mind throughout the world,” that it earned the
reverence we accord it to this day.”

About the Magna Carta and the Jewish People: A Promissory Note with promises of justice for all

As Mr Ergas AO outlined in his speech:

As Yosef Yerushalmi, one of the greatest historians of Judaism, has stressed, not even the mendicant friars who mounted the fiercest attacks on Jews ever advocated anything resembling the Nazis’ final solution. Heart wrenching as it was, mass expulsion was not mass extermination. Christian respect for the Old Covenant remained sufficiently strong to prevent that: it took secularisation for the Shoah to become conceivable. And once they had settled in their places of refuge, the Jewish communities that had been robbed of their homes and deprived of their belongings were sufficiently strong, sufficiently adaptable and sufficiently committed to the faith of their fathers to survive and even grow.

Indeed, it was precisely because the Jews survived and, wherever they were allowed to, prospered, that the legacy of that period was so dangerous and so often fatal. The stereotypes it forged into indelible form—the cruel Jew, who slaughters children, defiles women, arrogantly conspires to gain power over others and murderously exacts revenge— proved to be bacilli that periodically resurfaced in epidemics of hatred. So too did the pattern of authorities purporting to uphold the rule of law but not having the will to rigorously enforce it—least of all when it came to attacks on Jews.

……….

 

 

Seen from a Jewish perspective, Magna Carta, with its promise of justice, was therefore just that: a promissory note. And time after time, when it seemed the promise had come due, those hopes were dashed by a recrudescence of the old monsters.

Perhaps; but that was scant consolation to England’s Jews. And as it turned out, they had to wait until 1846, 631 years after Runnymede, before the restrictions on their participation in Britain’s political life were lifted, putting in place, at long last, one law for all.

Now, across the world, there are good reasons to wonder whether that achievement will, in practice, survive or whether Jews will, once again, be “cancelled” from the public place. With the 13th century’s monstrous archetypes not only resurfacing with terrifying speed after October 7, 2023, but gaining a previously unimaginable ascendency, the liberal temper, which is the crucial underpinning of freedom under law, is everywhere under siege and in most places in retreat.

The choice between the law, enforced equally to the benefit of all; or the hell of the rule of law for some, insult and intimidation, victimisation and violence for others.

As Mr Ergas AO concluded:

“Far from being stable, Kafka suggests, the modern world’s orderliness can collapse at any moment, returning us to the world “Before the Law”, as one of his most famous and austere stories is aptly called. Not only do we always stand “in front” of the law; we always risk being thrown into a life “prior to” the law. And when that happens, all our moorings vanish, leaving us disoriented, helpless, alone.

Kafka is not George Orwell: it is not totalitarianism that is in his sights. He is instead the prophet of the injustice that can be wreaked, to devastatingly cruel effect, by and in the modern state, with its claims to be tolerant and law-abiding. It is an injustice that selects its victims because they are easy targets; and that allows the lives of those it spares to proceed with every semblance of normality while crushing the hopes and dreams of those on whom it has turned.

That is the risk Kafka saw looming: the façade of legality remaining intact while its substance was first selectively ignored, then eviscerated. And that, on this 800th anniversary both of the reissue of the great charter and of the origins of modern antisemitism, is the risk we face. With it comes a stark choice: a choice between the law, enforced equally to the benefit of all and, as the Bava Metzia tells us, worthy of heaven; or the hell of the rule of law for some, insult and intimidation, victimisation and violence for others.

In once again thanking the Rule of Law Institute for inviting me, and you for the kindness of your attention, I can only hope that we have the wisdom, and especially the courage, facing up to that choice demands.”

About the Rule of Law Dinner and Robin Speed Memorial Address

The Rule of Laws Annual dinner looks at current threats to the rule of law in Australia. Starting before 2007, the Rule of Law Institute of Australia has participated in and run conferences and seminars considering whether the rule of law in Australia is under challenge.

The annual event is not just a chance to network over good food, it is an opportunity to engage in an important discussion about how justice for all is seen in Australia today.

The Robin Speed Memorial Address focusses on the rule of law. Robin Speed favoured an activist approach to defending the rule of law – which is a doctrine that is widely misunderstood even by some of our elected lawmakers. Defending the rule of law is not about persuading people to obey the law – although that is always a wise course of action. It is about protecting Australians from the misuse of power and arbitrary rule. It is about defending the right to a fair trial, calling out those who would abandon the presumption of innocence, and championing courts that are not merely independent but truly impartial. Most importantly, it is also about defending the doctrine of equality – that we should all be equal in the eyes of the law.

These are ideas that are beyond party politics and form the bedrock for this country’s system of governance.

One of those principles – the idea of equal treatment – is in serious trouble. The findings of the first Rule of Law Survey on whether ordinary people still believe they can obtain equal treatment from the legal system.

Just 47 per cent believe today’s legal system is providing equal treatment for everyone regardless of background.

While most people – 55 per cent – still rated the legal system as either good or very good, that overall positive assessment is being eroded by concern that identity groups are receiving favoured treatment which is unavailable to the general community.

Nationally, concern about favoured treatment for certain groups is held by 64 per cent of all Australians.

And if some groups are perceived to be receiving special favourable treatment that is not available to others, that means others are having to make do with something that is less favourable.

In the recent past, speakers have included Mr Walter Sofronoff KC, Paul Kelly, Margaret Cunneen SC, Chris Merritt, Charif Kazal, Bret Walker SC, Ron Hoenig MP and Malcolm Stewart. Click here to learn more.