Liberty Matters

A Comment on My Commentators

My initial essay attempted to address two intimately connected issues. First, the purdurable legacy of the liberty charters as documentary artifacts, and second, the continuing authority of the tradition of political liberty regarded as being founded upon the events that produced those charters. Put very simply the intention was to explore how over the 800 years, those events and the textual products have created such a powerful tradition: why the Magna Carta rather than other moments or texts?
The very fine responses from my colleagues have teased out, in different ways, the difficulties of connecting these two primary themes. Over the eight centuries of refashioning and understanding the role and function of both the event and its textual legacy, the use of the past as a source of political legitimacy, and the enquiries and publications of historians detailing or confusing these claims, have been profound. A further question, which, if not explicit, was fundamental to the initial piece, was “Why Magna Carta?” Despite the claims of contemporary nationalists in Scotland, the 1320 Declaration of Arbroath,[38] perhaps a more radical defense of liberties, has not attracted such global attention, respect, or reuse. So why has the Magna Carta continued to generate such attention and been capable of acting as a source of international legitimacy? Here, the questions of historical prescription and myth are central.
One of the themes resisted by Professor Vincent, in a powerful argument for context and the duties of historians to remain vigilant in avoidance of anachronism, is that the way the meaning has spilled out of its own times is not a legitimate or authentic historical tradition. The evidence of the past eight centuries suggests that the authority of Magna Carta has not been confined to its own historical circumstances. Indeed subsequent historians, especially in the early modern period, keen to establish and describe the ancient constitution, as Professor Womersley explores in elegant detail, drew from Magna Carta (the historical moment and the text) to populate their understandings of a recoverable and present centered “ancient” constitution. The battles of historical erudition fought out between Whig and Tory scholars and political thinkers persisted into the 19th century and was conducted with a keen eye to historical incompetence, error, and deceit.
The recovery of an historical category identified as “feudalism” provided a powerful instrument for disputing, or neutering, overly ambitious interpretations of Magna Carta and its legacy. The Bradys, Tyrrells, and still later, Burkes, saw no danger of anachronism in the use of the past as long as the historical narratives were undertaken with erudition, integrity, and a commitment to the truth, subscribing as they did to humanist principles of the civic usefulness of the ars historica. Of course this meant often, and Valla's exposure of the falsity of the Donation of Constantine is the cynosure, that the tools of historical erudition were employed to destroy corrupted documents or illegitimate valorization of their purchase on the contemporary world. Providing an historical pedigree for the legitimacy (or not) of contemporary institutions, principles, or political agents was, and in many senses remains, one of the benefits of having an historically aware community. As Jill Lepore has explored,[39] the function of ongoing debates about rival interpretations of the founding document of the U.S. Constitution contributes in a powerful way to conceptions of liberty and freedom in modern politics, and political thinking. Anchoring philosophical political concepts to historical foundations provides a wide audience, indeed the public, with a resource to comprehend and legitimize their beliefs. Historians may claim to police the use of the past, but where political and public interests are dominant this claim is often challenged.
While historians may, correctly, be wise to be cautious about this public use of the past, and indeed be vigilant against distorted or incompetent exploitation of the past, they will frequently fail in insulating the past from having a pertinent use for contemporary debates. The unique aspect of Magna Carta is its portability across time and geography. Its legacy has meandered through the intellectual topographies of many different national contexts. In a similar way, 16th- and 17th-century French audiences became familiar with the reconstructions of an ancient constitution as described in Francois Hotman's Francogallia (1572),[40] but the French construction has not become a widespread model for other contexts and circumstances, although it did get reused in 18th-century commonwealth discourses.
Professor Helmholz’s argument that there are indeed significant and important jurisprudential concepts captured amongst the more minor local issues gathered in the charter is powerfully made. That the baronial and ecclesiastical designers of the prose, and the participants in the moment of sealing, were capable of this achievement is remarkable. The historical unfolding and establishment of these core jurisprudential principles as primary values are not, however, necessarily determined by their authority as originally articulated in the artifact or historical moment of 1215. Those initial authors were most definitely not designing a conceptual framework for modern liberties.
Dame Mary Arden’s proposals for addressing the social composition of the judicial system, seems to me, do precisely what Professor Helmholz has enjoined. Her arguments recover a core jurisprudential principle and extend its application to the contemporary world. Her case is not that the proposals advanced in Magna Carta can be adjusted to the needs of contemporary social diversity, but that the original jurisprudential claim had embedded in its structure and conceptual intention precisely that capacity to be adaptable to changing circumstances. The extension of the freedoms of the liber homo to ever broader social, political, and ethnic communities, and a judicial system which reflected that diversity and enabled their freedoms, is an historical unfolding of principle, rather than an act of wilful anachronism.
Questions which still require historical thought are why the “originality” of the Magna Carta established authority and how that authority was distilled into later historical contexts. Here perhaps more reflection on the nature of mythopoetic functions and processes is necessary. Bruce Lincoln has given us a very powerful set of distinctions between fable, legend, and myth with which to explore the political uses of the past.[41] Fable and legend are inevitably literary constructions produced by societies to make sense and meaning of their values. Myth, according to Lincoln, is a more powerful combination of historically verifiable values and shared authorities: a common historical resource which many perspectives can draw upon and indeed make bespoke to their own ambitions. Importantly such myths are very capable of mobilizing individuals and communities to act in defence of values, institutions, and freedoms. An excellent example of this can be seen in the attempt by Winston Churchill to draw the United States into a defensive alliance against Hitler in 1941 by offering the Lincoln Magna Carta as an incentive and marker of a common purpose in defending liberty.[42]
An alternative but contemporary use for a British audience can be seen in the early 1940s film Magna Carta, The Story of Man’s fight for Liberty, which narrated, in animated form, the role the “People” had contributed to the development and achievement of civil liberties and freedom.[43]  The Whig historian George Trevelyan may have had a hand in transforming the liber homo of 1215, through Wat Tyler’s rebellion (“once again the people had to fight to regain their rights”), the rise of Parliament, and the execution of Charles I into the “people” resisting the tyranny of German fascism. This film rather portentously concluded that “The struggle for the rights of man is not ended, the story of the future is yet to be written”: the twenty first century has already established that working with the legacy of Magna Carta offers plenty of opportunity for preserving and expanding freedoms. The British Council film may have been very bad history, but it clearly provoked and mobilized popular support for a vision of English liberties that sustained and nourished a communal sense of freedom in difficult times. At later moments in the 1957 opening of the Commemorative Temple funded by the American Bar Association on Runnymede Meadows, Magna Carta was invoked as a powerful Cold War instrument against the threat of “Godless Communism.” In 2002 the Australian Prime Minister, opening the exhibition displaying a 1297 Magna Carta, proclaimed that it was a significant resource to deploy in the war against terror. It is, despite the many pages of historical enquiry, still an imponderable issue of how this ancient manuscript wields a persisting power: the recent Chinese edition may open up yet another reception and legacy.
In conclusion, the legacy of the Magna Carta may tell us something about how we collectively do something called the history of (political) ideas and use that historical dialogue to provide matter for more conceptual thinking. Professor Quentin Skinner, although powerfully enjoining us to contextualize political thinking in order to understand the intentions and political ambitions of the authors, has also underscored that this is a platform for allowing modern communities to think with the past.[44] Here perhaps the role of historians not just to produce learned and scholarly accounts, but to communicate with the public is important. Good public history will expose deceit and inaccuracy, and scrutinize scholarship, but it also it has a brief to explore historical complexity and communicate that reception and reworking of intellectual traditions to a non-expert audience. Hopefully it is the achievement of the British Library Exhibition[45] to have achieved exactly the right blend of historical erudition and clarity of understanding which will encourage another generation of minds to explore the meaning of liber homo.
[38.] "The Declaration of Arbroath" (6 April, 1320). The National Archives of Scotland <>. Translation <>.
[39.] Jill Lepore, ‘The Commandments’ in the New Yorker, at <>.
[40.] Translation of Hotman's Francogallia by Molesworth in Robert Molesworth, An Account of Denmark, With Francogallia and Some Considerations for the Promoting of Agriculture and Employing the Poor, Edited and with an Introduction by Justin Champion (Indianapolis: Liberty Fund, 2011). </titles/2422#lf1577_head_046>.
[41.] Bruce Linoln, Discourse and the Construction of Society: Comparative Studies of Myth, Ritual, and Classification (Oxford UP, 2nd Edition, 2014).
[42.] "Churchill plan to give Magna Carta copy to US revealed", BBC News, 11 March, 2015. <>.
[43.] "Magna Carta: The Story of Man's Fight for Liberty" (Gaumont, 1946). The British Film Council <>.
[44.] Quentin Skinner, "On encountering the past" <>.
[45.] "Magna Carta: Law, Liberty, Legacy" British Library Exhibition <>.