Monday, June 1, 2015

Legitimizing the State

This month marks the 800th anniversary of the signing of the Magna Carta:

Magna Carta (Latin for "the Great Charter"), also called Magna Carta Libertatum (Latin for "the Great Charter of the Liberties"), is a charter agreed by King John of England at Runnymede, near Windsor, on 15 June 1215.  First drafted by the Archbishop of Canterbury to make peace between the unpopular King and a group of rebel barons, it promised the protection of church rights, protection for the barons from illegal imprisonment, access to swift justice, and limitations on feudal payments to the Crown, to be implemented through a council of 25 barons.

The anniversary will be marked by great events and great speeches.  Glorifying editorials will be written, for example this from Daniel Hannan:

Eight hundred years ago next month, on a reedy stretch of riverbank in southern England, the most important bargain in the history of the human race was struck. I realize that’s a big claim, but in this case, only superlatives will do.

See what I mean?

As Lord Denning, the most celebrated modern British jurist put it, Magna Carta was “the greatest constitutional document of all time, the foundation of the freedom of the individual against the arbitrary authority of the despot.”

The Magna Carta was not the foundation, but built on and documented relationships developed over centuries in the Middle Ages – medieval law.  In medieval law, there was no “arbitrary authority of the despot” as the king was also equally under the law, not above it.

It was at Runnymede, on June 15, 1215, that the idea of the law standing above the government first took contractual form.

I guess it depends on what one means by “contractual form.”  Law stood above the king for centuries before the existence of this document.  This was upheld by solemn oath, and adherence to the old and good law.  This tradition was overrun in England no later than 1066, by William the Conqueror.

It takes a real act of imagination to see how transformative this concept must have been. The law was no longer just an expression of the will of the biggest guy in the tribe. Above the king brooded something more powerful yet—something you couldn’t see or hear or touch or taste but that bound the sovereign as surely as it bound the poorest wretch in the kingdom. That something was what Magna Carta called “the law of the land.”

There was nothing new, or “transformative,” about this – for much of medieval Europe (to varying degrees in time and space), law was not “just an expression of the will of the biggest guy in the tribe.”

Common law is an anomaly, a beautiful, miraculous anomaly. In the rest of the world, laws are written down from first principles and then applied to specific disputes, but the common law grows like a coral, case by case, each judgment serving as the starting point for the next dispute. In consequence, it is an ally of freedom rather than an instrument of state control.

What an ugly way to develop “law”; bad precedent upon bad precedent.  Of course, basing law on first principles can also be dangerous, depending on the first principles.  The NAP, for example, wouldn’t make for a bad first principle.  In medieval time, the principal was “old” and “good.”  The older law took precedent over a contradictory newer law (hence, law had to be “discovered”); good law took precedence over bad – for example, slavery, although old, was not good.

Conceptually, however, how much better would be law based on sound “first principles”?  There is some underlying foundation, a guiding star by which to judge the law, some basis for consistency – not to the last precedent (which only serves to incrementally degrade the law), but the first – a real foundation.

I have written about Fritz Kern before and his book Kingship and Law in the Middle Ages.  I will copy liberally from my earlier post on this topic, entitled “A Written Constitution: Protecting the State from the People” (in italics):

Was there such a thing as a “constitution” in the Middle Ages?

The monarch was subject not to a specific constitutional check, but to the law in general, which is all-powerful and almost boundless in its lack of definition; he is limited by this law and bound to this law.

What we have seen of the concept of mediaeval law was described in my previous post:  the law was above both king and people.  Both were subordinate to it, and all (king and people) were bound to define it and protect it – each to his own understanding of “good” and old.”  Each person had veto power!

Such an environment, while somewhat unstable for the people, was even more so for the king.  He was only one man – a man with some form of kin-right or birth-right, eventually coming to be sanctified by the church, but still he was one man; and equally bound by and to the same law as all other men.  He was “controlled” by the law, not controller of it:

From the point of view of constitutional machinery, the control exercised in this way by the law will presumably be very incomplete and insecure – the very breadth of the mediaeval idea of law allows us to guess this.  But in theory there resulted a complete control of the monarch, a subjection to law so thorough that political considerations and reason of State were excluded and out of the question.

The written constitution offered security to the monarch; this is the conclusion of Kern.  With the security provided by the constitution, the monarch greatly expanded power; this is also the conclusion of Kern, and it is also the evidence of history.

Cheer all you want for this upcoming 800th anniversary.  You can keep your written constitution; I would rather have an insecure king.


  1. And now we are protected by a "constitution" that has meant anything since it was captured by the first 9 law students who graded their own papers - now 3 Jews and 6 Jesuits. I feel safer every time they rule. I light candles to it. The thirty year old founders were just so wise when they negotiated in secret. I may not have enough candles to celebrate 800 years of such wonderful protection of liberty.

  2. A “strong” constitution only relates to form. It could be said that old Russia had a strong and clear de facto constitution; the czar owned everything and everybody.

    Constitutional substance rather than form would seem to be of a greater import. Protecting life, liberty and property would serve as an effective platitude and support NAP. Unfortunately, political entropy tends to erode these protections.


  3. Every contract constrains only those who are party to it. The US Constitution is null and void because none of the signers, none of the ratifiers, are living. As Jefferson said, "the earth belongs to the living". This is sound, fundamental natural law.

  4. "The NAP, for example, wouldn’t make for a bad first principle."

    Indeed. There actually IS a concise Political Statement* based on the moral statement contained in the NAP and I write about that very thing in my article "What IS a Political Statement". (It was recently updated to reference your excellent article: "A Written Constitution: Protecting the State from the People").

    * A Political Statement takes the form of written rules—reflecting a particular ethics and morality—by which a group of people agree or are expected to conduct their relations with each other.

  5. Dang! I had hoped to "tease" you enough to investigate the Covenant of Unanimous Consent. It is alleged to have been written by the same person who originated the NAP.

    Here is a less subtle teaser:

    In the following messages I have copied several articles that offer a startlingly new view of the Middle Ages. The question that I would particularly like to have you keep in mind, when comparing the collapse of the Roman Empire to our current situation, is this...: "When central governments collapse, what is the nature of the agreements that people will make to provide for the security of themselves and their family?"

    Many of the agreements during the Middle Ages were based on religious oaths. *I* think that the secular Covenant of Unanimous Consent can fill that role in our modern-day situation. Furthermore, there is no need to wait for government collapse. The Covenant can play a very useful and meaningful role in your life, right now, today.

    Excerpt from Liberal Society Hidden in the Dark Ages followed by my comment regarding the Covenant...:

    ...some additional views on the subject, especially the utility of Roman law in enabling centralizing power.

    Today it is generally accepted that only centralized power, promulgating generalized laws offers the most efficient and fair legal system. It was not always so. There was a time when “relations between men were capable of being established on bases other than that of a centralized administration, that authority was able to reside elsewhere than in a city…”

    The feudal order, in fact, was very different from the monarchical order that replaced it and to which succeeded, in a still more centralized form, the order of state control that is found today in various European nations.

    Pernoud goes on to give a brief review of how this decentralized system came about:

    A centralized power in the extreme, that of the Roman Empire, collapsed in the course of the fifth century. In the disarray that followed, local powers arose; this was sometimes the head of a band of fellow adventurers grouped around him; sometimes, too, the master of an estate trying to assure for those around him as well as for himself a security no longer guaranteed by the state.

    This can help us understand what happened at that time: some little farmer, powerless by himself to assure his security and that of his family, applied to a powerful neighbor who had the possibility of maintaining armed men; the latter consented to protect the farmer in exchange for which the farmer would give him a part of his harvest.

    This was a voluntary action, a trade. It was based on an oath, a sacramentum. The act had religious value. Such was the basis for societal relationships beginning in the fifth and sixth centuries. It is important to note the moral and religious tone of the relationship – the oath was sacred.

    THIS is what the Covenant of Unanimous Consent can provide in OUR times--the equivalent of the oath or sacramentum. See What *IS* a "Political Statement"? Why is One Needed? Who would Use It? at