Wednesday, October 21, 2009

Magna Carta: What it is and what it isn't

I would think most educated people in the Anglo-American tradition and in those countries who either had English Common Law imposed or adopted as the basis of their own national law have heard of the Magna Carta and understand that it is in some sense the fountainhead of that law. But to a large degree this is a misconception of its nature and purpose, it is not a grant of privileges from the King to his subjects, instead it is if anything a confession by King John in 1215 that he has overstepped what later became known as the Ancient Constitution. Britain did not and still does not have a written Constitution, instead its fundamental laws and institutions were considered at least through the nineteenth century to have been transmitted literally from time immemorial, that is in time prior to memory. And this is to my knowledge typical of all ancient European law and perhaps all Indo-European law (people with knowledge of Vedic Indo-Iranian law please jump in) and maybe all law, rather than looking back at some indefinite point where people entered into a Social Contract there seems to be a sense that Law precedes society altogether. A concept that may be echoed (or not, you tell me) in John 1:1 "In the beginning was the Word, and the Word was with God, and the Word was God."

Now certainly there were attempts at compiling and codifying the law, notably associated with the names of King Alfred the Great and Edward the Confessor, but the common view before Maitland was that the law itself was pre-existent. (A recent book that I confess I have yet to read but by the very thorough historian Patrick Wormald is Making of English Law: King Alfred to the 12th century). This was not the exclusive view, some maintained that the Common Law came over from Normandy with the Conquest in 1066, but generally the idea that King Alfred and then Edward the Confessor were law compilers and not law makers won out. (Though Alfred seems to have a more expansive view of his powers in this regard.)

What does any of this have to do with the Magna Carta? And what is so important about the Magna Carta to start with? I mean this is an economics blog! Well I am not sure, I am kind of making it up as I go along, those who want to follow and correct this line of thought can follow along.

A translation of the Magna Carta can be found at where it is after the Athenian Constitution held as the second oldest foundational documents for our own Constitution. Yet in reading the Magna Carta it is with a few partial exceptions not foundational at all, instead it is a restoration of the Ancient Law to the time before innovations by King John, his brother Richard the Lion-Hearted and their father Henry II. Now there are two provisions which are foundational if not actually considered original to the Magna Carta.
14. And for obtaining the common counsel of the kingdom anent the assessing of an aid (except in the three cases aforesaid) or of a scutage, we will cause to be summoned the archbishops, bishops, abbots, earls, and greater barons, severally by our letters; and we will moveover cause to be summoned generally, through our sheriffs and bailiffs, and others who hold of us in chief, for a fixed date, namely, after the expiry of at least forty days, and at a fixed place; and in all letters of such summons we will specify the reason of the summons. And when the summons has thus been made, the business shall proceed on the day appointed, according to the counsel of such as are present, although not all who were summoned have come. & 63. Wherefore we will and firmly order that the English Church be free, and that the men in our kingdom have and hold all the aforesaid liberties, rights, and concessions, well and peaceably, freely and quietly, fully and wholly, for themselves and their heirs, of us and our heirs, in all respects and in all places forever, as is aforesaid. An oath, moreover, has been taken, as well on our part as on the art of the barons, that all these conditions aforesaid shall be kept in good faith and without evil intent.
Thus Ch. 14 lays down the principle of 'no taxation without representation' while Ch. 63 affirms the pre-existing rights of all Englishmen. But note that these two do not precisely map, you will look in vain for the concept of 'democracy' tout court in the Magna Carta, there is no hint that the Parliament promised in ch. 14 includes FULL representation of the people.

Instead if you read through the Great Charter, the Magna Carta, you will see that it is primarily a reassertion of the King's Tenants in Chief's (those who held their land directly from the King) property rights against the King rights with only some secondary protections for sub-tenants and freemen.

But words and concepts you will not find in the Magna Carta: Equality and Democracy. Instead it is a fairly straightforward defense of the principle that Liberty=Freedom from coercion from above over property, where property includes ones own person. This is not to concede that the concepts of equality and democracy are not inherent in English and hence American society all along, just to recognize that it would be a long time before those were recognized in law.


Gavin Kennedy said...

Hi Bruce
Your interpretation of Magna Carta's significance is quite accurate in parts.
However, you raise issues I do not raise, specifically that Magna Carta was not about 'democracy' (a not well-known idea before the late 18th century) nor about the 'liberty of the common people'.

Long before governance by 'feudal' law, there was a long period from the fall of Rome (5th century), across Europe, known since as 'Alodial' rule, where the 'barbarians', so called, invaded the former Roman provinces and seized land that was held on the basis of who was strong enough to hold it.

With the coming feudal tenancy, the strongest war lords or 'kings' gave title to those war lords who recgonised the King as the sole dispenser of land, and title, to whomsoever he pleased to do so in exchange for military obligations of loyalty and recognition to the King AND his heirs.

From this, Kings tended to assumre absolute powers and to become 'oppressive' and arbitrary in their judgements, offending traditional rules and behaviours (e.g., King John).

The significance of Magna Carta was its bringing under scrutiny the arbitrary powers of Kings. They had obligations to consult their near equals, the Barons, not the people! This was a power-sharing charter, albeit limited in scope.

Popular liberty (the peasants remained, in effect, 'slaves' with no rights) is at this stage about curbing absolute powers, and had nothing to with 'democracy', and little to do with popular 'equality'.

Judge its politics, not against modern connotations that followed six or more centuries later. Laws were not created by single individuals; they took centuries to become formalised.

You seem to be close to seeing this in some paragraphs, but then slip into stubborn focus on modern ideas that came much later.

History took longer, as the debate over the US Constitution showed, before and after the Declaration of Independence and the adoption of its Constitution.


Bruce Webb said...

Well now you are on my turf. Before I left Grad School I was in the History PhD program at Berkeley where my main focus was Europe prior to 1066.

I am afraid I can not concur with this notion of Germanic Kings (whether that be the Visigoths of Spain or the Franks of France) were in the fifth and succeeding centuries ever thought of as being the sole dispensers of land and title or that there ever was an unalloyed right of conquest that swept away existing social and economic structures. The romantic vision of Germans swarming over the Rhine and the North Sea upon the withdrawal of the legions being largely abandoned today. Instead the model was on of displacement and insertion of new lords in the place of old and the New Men essentially dividing the spoils on existing lines That is you see no widespread changes in the larger geographical units or even place names. Certainly the Merovingian Kings were not in a position to exercise that kind of power, that would have to wait until the time of the Carolingians who even then never had complete control over the South of France in quite the way they did in Frankish territories. Nor would I agree that early medieval kings in the immediate post-Roman and early medieval centuries claimed the kind of absolutist powers you suggest. Instead I would place that more in the context of the struggles between the Emperors and the Popes starting with the coronation of Charlemagne on Christmas Day, 800 or perhaps better Otto I in 962.

For that matter the old notion that William the Conqueror simply divvied up England after the Conquest is very flawed, instead he claimed to be the rightful heir to Edward and largely acted the part. Under the law at the time traitors and rebels were subject to land forfeiture meaning that those Englishmen who did not forcibly resist by and large retained their estates, until or unless they got caught up in later insurrections. Even as late as 1086 and Domesday you can see substantial continuity as William in case after case simply turned over the possessions of an English 'rebel' to a Norman or French loyalist.

Nor does the evidence show that William really imported the kind of feudal system you imply, instead he once again adapted an existing tenurial system to his new needs.

Plus the years between William the First and John were marked by any number of struggles between the Kings and the Barons and by Civil War within the royal house itself.

What doomed John was not so much his attempts to assert new rights but the fact that he was a weak King with little natural support and less respect from the Barons, particularly after his failures in France. So I can't agree with you there.

Plus English peasants were in this period not slaves with no rights, that too is a modern misconception. Peasants had rights against their Lords as established in manorial custom and exercised in manorial courts and if of free legal status had the ability to appeal to the nascent King's courts.

Frankly you are working with an out-moded historical model here where legal concepts that would not devlelop until later in the 13th century are projected backwards to 1215. If you were talking about John's grandson Edward I some of this would fit, otherwise not so much.

Chris said...

Bruce is quite right.

Peasants were by no means without rights. And furthermore, peasant rights and customs varied greatly over mediaeval Europe. Different in France from England, or the German area or in Iberia. All medieval social history is local history; generalizations are perilous.

Chris said...

Actually the principle goes back at least to the Justinian Code of 531, Chapter 6, title 59, 5.2

Desiring to remove all doubt which formerly existed as to whether a single testamentary guardian, or one appointed after investigation, could act by his sole authority (even though there were several guardians who were not appointed for different places), or whether all those who were legally or judicially appointed could be compelled to give their consent, We order that where several guardians have been appointed either by the will of the father, or called by law, or named by the judge either after an investigation or without ceremony, the consent of one guardian alone shall be sufficient, where the administration is not divided either by localities, or by portions of the estate. For it is necessary for each one to give his consent to the ward with reference to the part of the estate, or the locality for which he has been designated, and We order that, in this respect, testamentary guardians shall not differ from those appointed after investigation, or such as are called by law, for which reason they are all equally obliged to furnish security, and a subsidiary action in favor of their wards will lie against them.
These provisions, however, must be understood only to be applicable where the dissolution of the guardianship is involved, as, for instance, where the ward desires to give himself in arrogation; for it would be absurd if the guardianship should be abolished, not only without the consent, but perhaps without the knowledge of the person appointed. For then, whether the guardians are designated by will, or after investigation, or whether they are called by law or appointed without ceremony, it is necessary for all of them to consent, so that what concerns them all may be approved by all. These provisions must likewise be observed with reference to curators.
Given at Constantinople, on the Kalends of September, after the fifth Consulate of Lampadius and Orestes, 531


And it is found in Gratian's Canon Law, etc., etc.

Chris said...

Most peasant farmed their land on contract with the lord and these contracts were enforceable. Further contractual relations could change when social circumstances changes. After the Black Death when peasants were scarce and valuable they could get much better terms from lords. I have worked on Portuguese peasant society in the 13th and 14th centuries and it is both very complex and very legalistic.

Chris said...

"Feudal tenancy" is not uniform all over Europe. Usually English examples are projected weverywhere which is very wrong. French "feudalism" was different; ditto Italian, German, Iberian, etc., etc. Not all areas were "feudal". Most of Europe knew various form of seigneuries (senhorios in Iberia), but you can have seigneuries without feuds. Feudalism was primarily a military system. And the term has been expanded wrongly to cover all medieval society. Further "feudalism" evolved in England and France and elsewhere and is not the same either geographcially nor in a time sense.

gordon said...

A major problem we all face in trying to evaluate the relationship between Magna Carta and more modern democratic ideas is the English Rebellion and Civil War of the seventeenth century. Parliamentary supporters in those days worked hard to find historical precedents for their opposition to King Charles (notwithstanding the fact that their opposition was actually based on contemporary events). There, I think, is the beginning of the "myth of Magna Carta" as the fundamental guarantee both of rights and of the obligation of the monarch to consult.

Seventeenth-century Parliamentarians were keen to extend the meaning of M.C. in both directions. They wanted to transform the monarch's power to levy taxes into a bargaining relationship with the consultative body, and also to redefine the consultative body to include the Commons (as then represented). These were major changes, not reassertions of old practices, but for legal and public relations purposes (one might say political purposes) it was best to present new demands in these old clothes.

Chris said...

It is also incorrect to think that the "Barbarian" invasions were in any way revolutionary. If you read the letters of Sidonious Appolinais, a 5th century Gallo-Roman bishop, you get a picture of provincial life in the empire where little has changed since the 3rd or 4th centuries. Charlemagne went to Rome to be "crowned" by the Pope (perhaps to his surprise) and thought of himself as the Roman emperor in direct succession to, say, Nero or Titus, etc. The real century of considerable change in Europe was the 9th, not the 5th or 6th.

Chris said...

It was general, I would say, in Europe of the ancien regime to think that when new taxes were to be imposed, there had to be consultation and consent. After all when Louis XVI's monarchy was facing difficult times and he needed new money from taxes he felt compelled to call the Estates General. The assembly got the bit between its teeth and decided to rewrite the French constitution and Louis discovered his error too late. But he didn't dare impose new taxes without approval of what passed as a national parliament.

Anonymous said...

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