Burgess COMMENTARY
Peter Burgess JUN 14, 2015
About a year ago I thought it would be fun to publish a Magna Carta version 2.0 to celebrate the 800th anniversary of the signing of the original. I decided against the project when I realized how little I really knew of the details of the history ... and indeed the details of the content of the whole document.

The theme of Magna Carta 2.0 would have been to sort out the relative power of the bankers, corporate titans and oligarchs relative to legitimate and democratic government institutions ... a situation today not much different from the issues being negotiated at Runnymede 800 years ago.

Many of the actors in modern times have shown a contempt for the rules that boggles the mind. It would not surprise me one little bit if someone more capable than me decides that it is high time that the chronic dysfunction that has emerged in our modern socio-enviro-economic system should be addressed in a Runnymede like confrontation, which, I argue would be better than massive uncontrolled violence that might well be the alternative.

Peter Burgess TrueValueMetrics.org
Peter Burgess

Magna Carta at 800

PRINCETON – Fly out of London’s Heathrow Airport and you may pass over a grassy field called Runnymede. Eight hundred years ago this month, it offered a colorful spectacle, dotted with the tents of barons and knights, and the larger pavilion of King John of England, looking like a circus top with the royal standard fluttering above. Despite the gathering’s pageant-like appearance, the atmosphere was undoubtedly tense. The purpose was to settle a conflict between rebellious barons and their king, a ruler described by a contemporary as “brimful of evil qualities.”

John’s efforts to raise money to regain lost lands in France exceeded the usual taxes and levies that the nobles had accepted from his predecessors. The king seized the estates, and sometimes the person, of wealthy lords or merchants and demanded hefty payments for their release.

If his years of amassing cash had led to victory, John might have got away with his arbitrary methods; but when he was defeated in France, a group of barons rose up against him and captured London. As part of a peace deal brokered by the Archbishop of Canterbury, the king accepted the baron’s demands, put to him in a document called Magna Carta, or “the Great Charter.”

Magna Carta was not the first charter to be granted by an English king. A century earlier, Henry I, by issuing a Coronation Charter, had indicated that he would be more respectful of the nobles’ privileges than was his predecessor. But Henry’s successors soon returned to the arbitrary ways of kings in those times.

Magna Carta, too, looked like it might be short-lived. It was soon annulled by Pope Innocent III, who had formed an alliance with the king. But John died the following year, and the nobles backing his successor, the nine-year-old Henry III, needed support against a rival claimant to the throne. To gain that support, Henry’s government reissued its own version of Magna Carta, which remains part of the laws of England.

Copies were made and dispersed to many of the great English cathedrals. The Latin original was translated first into French, the language of the nobility, and then into English. By the end of the century, peasants were citing it in a struggle against injustice.

The first printed edition was made in 1508. In the 1640s, parliamentarians saw in it a legal basis for their overthrow of King Charles I. Later rebels, including the American revolutionaries and Nelson Mandela, have similarly justified their actions by appealing to Magna Carta.

What these fighters for justice and freedom take from this 3,500-word document is the brief statements of general principles in response to John’s arbitrary seizure of his subjects’ property and person. In its 39th Chapter, Magna Carta states: “No free man is to be arrested, or imprisoned, or diseised [dispossessed], or outlawed, or exiled, or in any way destroyed, nor will we go against him, nor will we send against him, save by the lawful judgement of his peers or by the law of the land.” Chapter 40 states, concisely, another powerful principle: “To no one will we sell, to no one will we deny or delay, right or justice.”

These two chapters have their modern echo in the 14th Amendment to the US Constitution, which decrees that no state shall deprive anyone of life, liberty, or property “without due process of law” or deny anyone “the equal protection of the laws.”

Yet Magna Carta is not a democratic document. Although it established the requirement of common consent to taxation, that consent was to be obtained from an assembly of earls, barons, bishops, and abbots – in the age of chivalry, not even knights were invited to participate.

The idea that towns such as London should be represented was voiced at the time, but it found no place in the final text. What Magna Carta shows, therefore, is that “Who rules?” is one question, and “What, if any, are the limits to political power?” is another.

Because Magna Carta attempted to set limits to political power without grounding these limits in the sovereignty of the people, it demonstrated a problem with which philosophers have grappled for even longer than 800 years. From where do the principles that constrain rulers come, if from neither the rulers nor their subjects?

The tradition of natural law offers an answer that was familiar to medieval scholars, for whom natural law was knowable to us by our natural reason (as opposed to those laws that could be discovered only through divine revelation). Magna Carta’s key principles can be seen as derived from reason because the very idea of a law excludes arbitrary arrest and seizure, as well as the rendering of a verdict on any grounds other than the proper application of the law. If A is legally bound to return B’s cow when she strays onto his land, and then C’s cow strays onto B’s land in relevantly similar circumstances, B must also be bound to return C’s cow. C need not bribe the judge to get his cow back.

There is nothing in Magna Carta that prevents the enactment and enforcement of unjust laws; but it does elevate the law above the ruler’s will. Unfortunately, that idea still is not accepted in many countries. Moreover, as the continued existence of the US prison camp at Guantánamo Bay shows, even among countries that trace their political institutions to Magna Carta, perceived security threats have weakened the requirement that no one be arrested except under the law of the land, and that justice not be delayed.

John Brian Shannon JUN 7, 2015

Hi Peter,

I'm a Magna Carta fan, as are many people for obvious reasons. But for heads of government, legislation that is based on it should not be applied to those persons until their set term is completed.

While some people may be aghast at this suggestion, in the real world the plebian masses have in no way whatsoever, the information and inside information...

While some people may be aghast at this suggestion, in the real world the plebian masses have in no way whatsoever, the information and inside information available to a President, Prime Minister, or Premier.

Therefore, to apply Magna Carta related legislation to a sitting President (for example) would not be based on all of the relevant facts of that particular situation.

If a President decides that he/she must act to protect their country or economy and has inside knowledge, then whatever is required to protect the country or economy, should be deployed swiftly and without compromise on order from the chief executive.

However! If it was later determined via court hearing that such a President acted brashly or overly harshly towards citizens, then any proceedings against that President should be delayed until he/she is no longer President.

Why?

1. Nobody will have all the information/facts/analysis available to them that the decision-maker in Chief has at the time of decision. Not even a trial court. (Many sovereignty-related decisions must be made in 'real time')

2. To constrain heads of government may prevent them from doing their job.

3. Many frivolous lawsuits against incumbent heads of government could conceivably tie up much of their term in office.

4. Presidents, Prime Ministers, and Premiers, need 'room to maneouver' in order to protect the sovereignty of the country and the economy. They don't have hours to consult a 'rulebook' or a legal team when things are changing by the moment. (Things happen fast and can change by rapidly)

I'm all for citizen rights!

But the time to *get* heads of government for seemingly unjust actions on their part, is the day after they leave their set term in office -- not in the middle of trying to do their jobs (when they alone are privy to the best and most up-to-date information to which nobody else is privy) at that point.

To sum up, the Magna Carta and related legislation is one of the best things to ever have seen the light of day, from the point of view of citizens.

However, we should not tie the hands of sitting heads of government, by allowing in-term trial or prosecution until their set term expires.

As always, best regards, JBS Read less

Reply Commented

j. von Hettlingen JUN 6, 2015

Who would have given Magna Carta - revered as an ancient guarantor of freedom and justice - a thought, if not this year marks its 800th anniversary? Its provisions are so self-evident, that we today hardly think about the rights that had been fought for. The Great Charter had served as a legacy of popular power. It also tells us that democracy in earlier days was gained through force. Magna Carta was drafted by Archbishop of Canterbury, Stephen Langton. It allowed people to stand up for their rights. Arbitrary arrest without judgement was forbidden, guaranteeing the right to trial by a jury of one's peers. Yet King John, who set his royal seal to his baron's demands, refused to believe that he was not above the law! In the end he was forced at swordpoint to put his seal on the manuscript, limiting his power and granting freedoms to his people.

This historical document had since inspired the US Bill of Rights, as well as the French Declaration of the Rights of Man. In a South African courtroom in 1964, Nelson Mandela expressed his respect for the document, on which the principle of the rule of law in the Anglo-Saxon world is based.

Peter Singer says that Magna Carta 'attempted to set limits to political power without grounding these limits in the sovereignty of the people,' has a downside too. In the case of the US, 'perceived security threats' have justified the flouting of due process of law, like a detention at Guantanamo. Elsewhere in certain countries we see the rise of illiberal democracy, in which autocrats win election and govern with a popular mandate, to the detriment of those, who reject them. Indeed true democracy had been gained through force in history. In order to defend it, we still have to fight tooth and nail today. Read less

Reply Commented

Petey Bee JUN 5, 2015

Yes, very fitting. Great advances have been made since then, too, like various attempts to come up with a process, test, and formula for rule which is not just systematic according to a written law, but is also just, and is also robust enough to stand up against, subsume, or be compatible with competing paradigms, such as might-makes-right.

On this anniversary we should hope that contemporary application of this subject does not extinguish knowledge of the more successful modes of systems-of-rule that have been discovered in the past century.

Reply Commented

Michael Public JUN 4, 2015

It is very easy to say would ought to be done. It is very difficult to build structures that are immune to the abuse of power. Maybe your next article should address this topic...

Reply Commented

YL Chang JUN 4, 2015

'The idea that towns such as London should be represented was voiced at the time, but it found no place in the final text.' This statement may be technically true, but is highly misleading. In fact, the Mayor of London was one of the barons arrayed against John at Runnymede, and Chapter 13 of the Charter states: 'And the city of London shall have all it ancient liberties and free customs, as well by land as by water; furthermore, we decree and grant that all other cities, boroughs, towns, and ports shall have all their liberties and free customs.'

In my view, Peter Singer also ignores one of the most important lessons of the Magna Carta, which is that the barons chose specifically not to overthrow King John, but instead, insisted that he obey the law. John in fact turned around to fight the Charter he had signed, and one after another his successors would ignore the Charter. But the Charter set the stage for 475 years of an evolving Parliament's disciplining of English monarchs by withholding money until they capitulated and formally reconfirmed the Charter. By one count, as I recall, there were as many as three dozen such reconfirmations over the centuries, which steadily added to the historical weight of the claims of the 'rights of Englishmen,' so that when finally the hapless Stuart kings committed unpardonable offenses, parliament had already acquired sufficient political stature and power to put one (Charles I) to death and chase another (James II) out of the kingdom, and then offer the throne to William and Mary on the condition of the 1689 Bill of Rights.

The wisdom of the Magna Carta barons is manifest as we look at the endless political chaos and wasteland the U.S. has been creating around the world by overthrowing or subverting one government after another that we object to for sundry reasons.