Monday, June 15, 2015

Magna Carta at 800

Who knew, who could ever even have imagined, 800 years ago today, when a cabal of English feudal lords forced King John to sign the "great charter" (magna carta) "in the meadow that is called Runnymede, between Windsor and Staines," that we would still be talking about it today, that anyone would even remember it today, so many centuries later, so many wars, revolutions, and constitutional fixes later?

Magna Carta was certainly an important event in English history, even if historical interest in it has been disproportionately American. (It says something that the Magna Carta monument at Runnymede was erected only in the 1950s and by a bunch of American lawyers!) Magna Carta was important because it set the history of the English-speaking peoples in a direction that elevated the rule of law above the rule of the sovereign. One can, I suppose, speak of it as setting our history in the direction of limited, constitutional government. But limited government has now become an ideologically weighted term. To avoid its baggage, I prefer to speak of the rule of law, which is also, I believe, closer to the feudal spirit of the original document. There is, of course, a connection between privileging the rule of law over that of the sovereign and the principles of parliamentary and constitutional government that the English-speaking nations justly pride themselves in. But it is also quite a leap to get from England in 1215 to the political institutions and constitutional orders we have today in most of the English-speaking world. But political evolution has to start somewhere, and Magna Carta is certain a good place to begin.

On the other hand, what we have today is a constitutional regime rooted in individual rights. Magna Carta was not really about that. It was about the rule of law, and the law in question was largely feudal law. The rights it upheld were for the most part feudal rights, not abstract rights of man but customary rights that went with institutions in society and with persons as participants in those institutions. Magna Carta may have helped move the historical process in the direction it ended up, but it also witnesses to other possibilities.

The contemporary autonomous individual would have been unknown in 1215. A political and constitutional system based on individual autonomy would have been inconceivable then. If the "archbishops, bishops, abbots, earls, barons, justices foresters, sheriffs, stewards, servants" and others to whom King John addressed Magna Carta could have have conceived of a polity based on the autonomous individual  (which, of course, they couldn't), they might well have also recognized in individual autonomy a danger to their sociall institutions and customary rights as real as that posed by their inadequately constrained king.

Indeed, this anniversary ought really to invite a reappraisal and renewed appreciation of the multitude of customary social institutions which individuals were once inseparable from and whose diminished status today has left a significant vacancy in society - a vacant space increasingly occupied by another inadequately constrained sovereign, the increasingly authoritative modern state.

In this regard, we might consider that the very first right of a non-state actor Magna Carta mentioned among the guarantees King John was compelled to recognize that day at Runnymede was the right of a religious institution.  For the first liberty guaranteed by Magna Carta was

... that the English Church shall be free, and shall have its rights undiminished, and its liberties unimpaired. That we wish this so to be observed, appears from the fact that of our own free will, before the outbreak of the present dispute between us and our barons, we granted and confirmed by charter the freedom of the Church's elections - a right reckoned to be of the greatest necessity and importance to it - and caused this to be confirmed by Pope Innocent III. This freedom we shall observe ourselves, and desire to be observed in good faith by our heirs in perpetuity. 

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