Legitimizing the State

This month marks the 800^th 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 800^th anniversary.  You can keep your written constitution; I would rather have an insecure king.