Liberty Matters

Magna Carta Is No Anachronism

Justin Champion’s essay performs a valuable service for those of us who share an interest the history and present status of human liberty.  It traces the role that a document eight centuries old has played in securing freedom from arbitrary and aggressive action by agents of the government.  Magna Carta, in its origins a document produced by a baronial rebellion against an untrustworthy and predatory monarch, has come to be used in circumstances very far removed from its original context.  Clauses in the Charter that dealt with what his essay calls “elite baronial privilege” have been invoked to advance the interests of very different groups – protectors of the environment, advocates of racial equality, and proponents of income redistribution.  In modern struggles to achieve political ends, Magna Carta has served as what Professor Champion accurately calls “a powerful and protean resource and constitutional icon.”  He marshals abundant and convincing evidence to show how frequently the Charter has been invoked in support of causes the barons at Runnymede could scarcely have imagined.  Of some of them, the barons surely would not have approved.
Who can argue with Professor Champion’s account?  Not I.  He has faithfully traced the uses to which an ancient document has been put in circumstances far removed from those of its origin.  Ideas matter.  History matters too in the evolutions of ideas.  Magna Carta’s history and present role as the source of arguments to advance the cause of civil liberties demonstrate how an old precedent can be given new life.[21]
Admitting the accuracy of these conclusions, readers may nonetheless doubt the legitimacy of some of these modern uses.  If, as Professor Champion’s essay shows, advocates of new rights find something in Magna Carta that was not there, do arguments based upon its provisions nonetheless demand any respect?  A fair question.  If, for example, Magna Carta is wheeled out to support objections to harassment by the today’s police, does it not weaken the argument to discover that there was no police force in 1215?  And if no such thing as a jury trial in criminal prosecutions existed at the time the Charter was formulated, does citation of it not weaken the argument that the right to jury trial is a part of our legal heritage?  For me at least, citation of Magna Carta works the other way in these cases.  It actually diminishes the force of the arguments.  Historians have busied themselves exposing “the myth of Magna Carta,” and often they seem to have had much the better of the argument.[22]
I think there is a way out of this dilemma, a way that lends actual support to some (though not all) of the modern uses made of Magna Carta.  It requires taking seriously the jurisprudential assumptions that prevailed during the years when the Charter was formulated.  Professor Champion’s essay does not attempt this.  It is not his subject.  However, I think his conclusions might be augmented if he did.  According to legal thought current in 1215, all law could be divided into four categories: 1) the law of nature; 2) the ius gentium, or law of nations; 3) the ius civile, the municipal law, or positive law, of individual kingdoms or territories; and 4) the ius divinum, the law of God that had been given to Christians.  This is what was taught in the Schools and accepted by lawyers throughout Europe.  Subdivisions had to be hived off within each of these categories, but these were the basic divisions.  The four were different, but they were not independent.  The municipal law built upon the law of nature.  That is the relevant point for understanding what Magna Carta was in its time.  The law of nations and the municipal law were understood as putting into detailed form the general prescriptions found within the law of nature.  The English Charter was itself part of the municipal law.  Among other things, it was understood as providing detailed and coercive form to broad principles found both in the natural law and the law of nations. 
Let me give a simple example of how this jurisprudential system worked, taking an unlikely (and seemingly strange) one: Clause 33.  It reads: “Henceforth all fish-weirs shall be completely removed from the Thames and the Medway and throughout all England.”  Even apart from the question of why the barons would have cared about fishing on the Thames, this clause seems anomalous – quite out of place in a charter of English liberties.  It looks a good deal more comprehensible, however, if we consider its relation to the law of nature.  Under natural-law principles, the seas and other navigable waters were res nullius.  No one owned them.  In the absence of special circumstances, therefore, their use was open to all.[23]  To erect a fish-weir, which is an obstruction placed in the river to direct the passage of fish, one designed to trap them as they swim upstream, was thus to interfere with a natural right held by all men: the right to free passage over navigable waters.  It is worth noting that establishment of the freedom of the seas would become the great theme of the Mare liberum by Hugo Grotius (1583-1645), the marvel of Holland in the 17th century.[24]  Here it is in the 13th in an only slightly different context.  Placing an obstacle like a fish-weir in a navigable river abridged a natural right.  It was a local grievance, but within it lay a large principle.  
Is it conceivable that such grand principles were embedded in Magna Carta?  Can the barons really have known or cared anything about these jurisprudential assumptions?  Yes, of course.  Many of the Charter’s provisions extended to all free Englishmen, not just the nobility.  The men who formulated the Charter were not ignorant and selfish ruffians.  They were led by Stephen Langton, the archbishop of Canterbury and a product of the medieval schools if there ever was one.[25]  The jurisprudential principles involved were also stated clearly in the two books on English law that were written on either side of the Charter: Glanvill (ca. 1187-89) and Bracton (ca. 1230).[26]  They were also among widely accepted assumptions about law and justice that appeared in the many foundational documents of law that were compiled on the Continent at about the same time: Philippe de Beaumanoir’s Customs of the Beauvaisis in France, the Siete Partidas in Castile, and the laws of King Magnus Ladulås in Sweden, for example.[27] Although quite different in many ways from Magna Carta, these documents shared with it an assumption of the truth of a basic core of ideas.
Taking this evidence seriously adds something to our assessment of the Charter, even to matters like the right to jury trial that was later found within it.  It is true that Clause 39 could not have been meant to guarantee a right to jury trial in 1215.  However, it did state that the King would not take punitive action against any free man unless he did so by lawful means. It turned out that English law adopted jury trial as the ordinary way for persons accused of a crime to be tried.  That became the accepted way of determining guilt and innocence.  Of course, this was a product of choice.  The governments of most European lands chose a somewhat different path.  However, the right to a fair trial was what mattered under the law of nature, and in England that right came to include the right to be tried by an impartial jury.  Having chosen jury trial as the part of the municipal law, English jurists and even kings were then bound to respect it as part of a larger right anchored in the law of nature.
A nearly identical analysis can be applied to several of Magna Carta’s provisions.  Elsewhere, the king promised freedom from new taxation without agreement (12), proportionality in punishment (20), lawful weights and measures (35), and justice freely available for the vindication of legal rights (40).  It is true that no real Parliament existed in 1215, but when it did come into existence, contemporaries would have regarded it as one instrument needed for the protection of guarantees such as these.  From this perspective, invocation of Magna Carta in the preservation of many modern freedoms actually seems less of an anachronism than it appears to be at first sight.
[21.] Robin Griffith-Jones, Magna Carta 1215-2015: London’s Temple and the Road to the Rule of Law (London: Pitkin Press, 2014), 37, asserting that Magna Carta is “now a document of all time and of all the world.”  See also Anthony Arlidge and Igor Judge, Magna Carta Uncovered (Oxford and Portland OR: Hart Publishing, 2014).
[22.] Many of these are detailed in the classic study William S. McKechnie, Magna Carta: A Commentary on the Great Charter of King John, 2nd ed. (Glasgow: James Maclehose, 1914). See also Ralph Turner, Magna Carta through the Ages (Edinburgh: Pearson Education, 2003), 145-82, bringing out the common “distortions of the English past” involved; a strident but still useful commentary of this sort is Bryce Lyon, “The Lawyer and Magna Carta,” Rocky Mountain L. Rev. 23 (1950/51), 416-33.
[23.] Digestum Justiniani “Et quidem naturali iure omnium communia sunt illa: aer, aqua profluens, et mare, et per hoc litora maris.”  See generally Pitman Potten, The Freedom of the Seas in History, Law, and Politics (New York: Longmans, 1924), 36-56.
[24.] The Free Sea, David Armitage, ed. (Indianapolis, IN: Liberty Fund, 2004), ch. v, Hugo Grotius, 20-37.
[25.] See Daniel Baumann, Stephen Langton, Erzbischof von Canterbury in England der Magna Carta (1207-1228) (Leiden and Boston: Brill, 2009), 149-89.
[26.] See Prologue, Treatise on the Laws and Customs of the Realm of England Commonly Called Glanvill, G. D. G. Hall ed. (Oxford: Clarendon Press, 1993), 1-3; Introduction, Bracton on the Laws and Customs of England, George Woodbine ed. and Samuel Thorne trans. (Cambridge, MA: Harvard University Press, 1968), 19-28.
[27.] Armin Wolf, Gesetzgebung in Europa: zur Entstehung der Territorialstaaten 1100-1500 (Munich: Beck, 1996), 311.