Politics & Policy

Magna Carta: It’s Not Just about Rights

King John and the barons at Runnymede (1864 woodcut)
The document that shaped the English-speaking world.

It’s remarkable that the English-speaking world remembers Magna Carta. The product of a struggle between King John and his barons, it was sealed on the bank of the Thames 800 years ago, on June 15, 1215. But in a sense, the most valuable thing about Magna Carta is precisely that it is remembered. Other charters were issued across medieval Europe, but they were rapidly forgotten.

Magna Carta alone endured because the kings of England never consolidated their power fully enough to be able to ignore their subjects. The charter was a useful political weapon in this struggle against arbitrary royal power, which is why it was so often reissued, appealed to, and celebrated, not least in the United States by the Founding Fathers: The Massachusetts state seal adopted in 1775 includes a patriot holding the Great Charter. To remember is, literally, to recall to mind, to renew in thought, which is why memory, as Orwell recognized in 1984, is a great defense of liberty.

This year, Magna Carta is being acclaimed as the contract that first established the idea that law was above government. As British politician and historian Daniel Hannan has put it, from Magna Carta flowed “all the rights and freedoms that we now take for granted: uncensored newspapers, security of property, equality before the law, habeas corpus, regular elections, sanctity of contract, jury trials.” And that’s fair: The barons wanted to limit King John’s arbitrary power, and without limits there is no liberty under law.

But it does not take very much bravery now to celebrate our rights. Today, the language of rights is universal, though often hypocritical. Worse, the danger to liberty in the U.S. and Britain today is not arbitrary power of the sort exercised by King John, who offered no real theory except that he needed the money he was stealing to fight his wars in France. The danger to liberty today, ironically, comes more from arbitrary power backed up by the rights-talk that can trace its origins back to Magna Carta. Against my right to free expression stands your supposed right not to be offended. My right to property must now pay for your right to free health care. My right not to be discriminated against must give way to your right to be discriminated in favor of.

RELATED: What Rights Are Due to — and from — the Magna Carta

Every demand for political power is now framed as an earnest plea for a new right, a morally bullying appeal too often backed up by a modern state with a reach beyond King John’s wildest fantasies. The Guardian’s Guy Standing offers the opinion that a modern Magna Carta should establish high taxes, nationalization, and hefty welfare payments as rights. What’s mine is mine, and so is what’s yours — it would be hard to think of an appeal less in keeping with the spirit of the original.

When the good subjects of Nottingham — or a tiny fraction of them, at least — met in May to write clauses into the “People’s Charter 2015,” they demanded, among much else, “A technology code of ethics to guarantee that all new technological equipment is designed with ethics is mind.” It’s nice to see that the self-righteous certitude of Nottingham’s infamous sheriff lives on in his ancestral home. And if you chance to visit the finest surviving copy of Magna Carta — the one in Salisbury Cathedral — as I did last month, you can pick up a leaflet, produced by the cathedral itself, which proclaims that the charter is a statement of “social justice” and thereby takes celebration well into the realm of parody.

With honorable exceptions like Hannan and Britain’s Freedom Association, much memorialization of Magna Carta rests implicitly not on the value of limiting arbitrary power, but on the idea that that document was the start of an unfurling of rights that must be continued and elaborated forever, preferably by deploying the power of the state. Inevitably, the British Library’s idea of an appropriate celebration is to invite schoolchildren to draft a “Magna Carta for the digital age,” as if developing even more rights is obviously the correct way to go. What the schoolchildren are not being invited to consider is the problem of who is to guard the guardians.

RELATED: Why the Magna Carta Wasn’t Enough to Secure Limits on Government

Rights-talk isn’t the answer: It is the problem, because there is no appeal against it, no sure way, once you enter that maze, of dismissing demands that are based on a rights-claim. So I’m a trifle wary of celebrating Magna Carta as the origin of our rights, because no matter how true that is historically, our understanding of rights is now so degraded that, in practice, nattering on about rights feeds the disease.

But Magna Carta also embodies another idea, beyond the idea of rights or even the concept of limits on arbitrary power through law. It rests on the understanding that society — a word of our age, not theirs — has many institutions that have value. It is a statement not merely of freedom from arbitrary power, which is a negative concept, but of the positive value of a world where different institutions exist for different reasons and do different things that are good in their own way.

One of the reasons why Magna Carta is difficult to read today is that, while there are glimmerings of rights in it, it’s mostly based on a model of restoring the social and spiritual institutions of England to their traditional and proper places, as the barons and bishops wanted them to be understood. That’s why the charter goes on about not making people build bridges unless they are legally bound to do so (clause 23), inheritance procedures for free men (clause 27), the clearing of fish-weirs (clause 33), and the need to allow merchants to travel (clause 41). All of these clauses express the assumption that society has many circles, each of which has its own role to play.

Magna Carta expresses a social vision: A well-ordered society is a house of many mansions, each of which is valuable on its own terms.

True, these clauses, like the rest, were based on specific grievances of the time. But together, they express a social vision: A well-ordered society is a house of many mansions, each of which is valuable on its own terms. The problem with arbitrary government is not merely that it is lawless; it is that it does not respect the boundaries between itself and the other mansions. This is not a system of checks and balances, as in the American Constitution: It is a broader sense that society has a balance to it that, for both practical and moral reasons, should not be wantonly disturbed. It’s also a sense that the basic restraint on government is not institutional or structural: It is the existence of interests (in this case, particularly but not only the barons, the bishops, and the merchants) who sit apart from the king.

Of course, the 13th century’s vision of who has that power is not ours: In this post-Enlightenment age, we are all free men. What their age understood as different and largely fixed social levels, we understand, in our age of greater social mobility, as separate circles. But yet we are not so far away from them after all, for there is a long tradition of thought — now largely understood as conservative, though it was originally liberal — that bases itself not on rights, but on this kind of common-sense social conservatism of the little platoon. As Michael Auslin has recently noted, John Adams understood how the progressive “desire to increase the scope and power of government” is closely linked to “the character of the citizenry”: Bad government makes bad citizens by atomizing their institutions, while good citizens enable good government by acting in ways that create less demand for it.

This is why Edmund Burke described “Jacobinism by establishment” as a revolt against “the pre-existing laws and institutions” of a nation. And of these revolts, the more dangerous was the one against the institutions, both moral and physical, because — as the Jacobins knew — without those institutions, there was only the state. The term “civil society,” like the language of rights, has been so abused by liberals that it no longer has much meaning, and it is completely alien to the world of Magna Carta. But it still just about captures the sense that society is composed of many mountain peaks that, because they are connected at their base, have great stability and strength. The connections are not formal and legal — we make them naturally in our daily lives. The great sin is not to build new paths to the peaks, which Burke welcomed; the great sin is to deny that the peaks are and should be separate.

Social conservatism and limited government, though often advocated by very different people, actually imply each other.

As Auslin puts it, conservatives need to link “their understanding of morality with their mission to restrict the scope of government.” In other words, social conservatism and limited government, though often advocated by very different people, actually imply each other. And with due regard for the immense differences between the two eras, that is precisely what Magna Carta was about: It is based on an understanding of morality and a social sense, from which flows the need to limit the king so that he would not traduce those medieval English institutions. The fact that our institutions are different from theirs doesn’t diminish the value of society’s circles as entities that are separate from the state.

Unfortunately, just as modern liberalism has colonized the concept of rights, it has made camp on the idea that the peaks of the mountain should be separate. The characteristic argument of liberalism today is, first, that every institution — family, church, business, art, education, travel, leisure, entertainment — is fundamentally political, and so not really separate from the political realm at all. It’s all politics all the way down, a claim that would (and did) horrify British conservative philosopher Michael Oakeshott. And that claim opens the door to a second one, which is that, as everything is political, all the peaks need to do the same job as the government — and if they do not, they will be forced to do so.

This is why, for example, liberals conceive of colleges as institutions whose job it is to fix the (often exaggerated, and almost invariably misunderstood) ills of society. Colleges self-evidently have a different role: to educate the young, an arduous task that might or might not contribute to addressing particular ills, but which in any case has a value of its own. But that is not how we justify the enormous sums we spend on education. Or take nonprofits, which are too often conceived of, to borrow a term from our British friends, as the “third sector” — with the implication that they are a wedge of the pie that sits alongside business and government, all working toward filling the same pie tin. There is no institution that cannot be politicized and then directed in this way, if your will is tyrannical enough.

In the end, I certainly won’t quibble with those who memorialize Magna Carta as the beginning of the end for a particular kind of arbitrary government, or even with those more misguided souls who want to use it to talk about rights. Even talking about rights in this context is talking about history, and if Magna Carta is to be used as a flame of liberty, it must at a minimum be remembered, as it has been and will be. It was, after all, a political document from the start, and it remains so today. But ironically, it is a political document that grounds its vision on rejecting the argument that everything must be political, and that fact deserves to be remembered and celebrated as well. The social vision of Magna Carta is one where there is a good, wide world out there beyond the king. And that is a great vision worthy of the Great Charter.

— Ted R. Bromund is the senior research fellow in Anglo-American relations at the Heritage Foundation’s Margaret Thatcher Center for Freedom.



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