The Lasting Significance of Magna Carta

This was first posted at Fusion.org and thanks go to Samuel Goldman for comments. I previous wrote about Magna Carta here.

King John agreed to the provisions of the Magna Carta on June 15, 1215. We recently passed the 800-year anniversary of a perhaps almost as important event, Henry III’s 1225 reissuing of the agreement under his own free will.

Since it was almost rediscovered by the great lawyer of the constitution Sir Edward Coke in the early 17th century, Magna Carta has been a rallying point for those who would limit the arbitrary power of the sovereign, first in England and then in North America. It was to Magna Carta that the Virginia state legislature appealed when protesting the Stamp Act of 1765.

For both English Parliamentarians in the 17th century and the American Founders in the late 18th century, the Magna Carta was a taproot for critically important ideas: the idea of the rule of law – rules that bind rulers as well as ruled; the aspiration of equality before the law; and the idea of taxation by consent of the realm.

All this is true.

Yet over time, critical aspects of Magna Carta’s significance have been forgotten or misunderstood.

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It was the product of the feudal world. The significance of this is not so much that it was the product of baronial self-interest. Skeptics of the document have often pointed this out. Rather, what gets forgotten is that Magna Carta was an agreement that the king could be compelled to accede to because the rebel barons had their own military capabilities.

The king had no monopoly over violence. In 1215 King John was the greatest landlord in the country: he had his household retainers, mercenaries, a siege train, and a large number of royal castles. Nonetheless, he could be compelled to come to agreement because the capability for organized violence was dispersed among a fairly broad section of the barons and their followers. On their own, a baron like Geoffrey de Mandeville, from whom John extracted large amounts of money, had no means to oppose the king. But together with other disgruntled barons, men like Saer de Quincy and Eustace de Vesci, barons like de Mandeville could directly threaten the position of the monarch.

Another critical but often overlooked feature of this rebellion is that the rebels did not seek to depose the reigning monarch. King John was an oppressive ruler by all accounts, guilty of atrocities that included murdering his nephew and starving to death the wife and son of a baron.

Despite this, the rebels did not aim at regime change; nor did they raise a pretender to the throne. Rather, they put forward a program, the Magna Carta, that could gain the support of a large segment of the political nation.

It is also often forgotten that King John reneged on the Magna Carta almost immediately. So, the willingness of the barons to fight for its provisions had to be demonstrated in the field. Henry III agreed to the terms of a revised Magna Carta in 1225, but he would later face similar baronial rebels over his perceived violations of it during the 1230s and 1240s. Magna Carta was finally incorporated into English law by Edward I again in response to baronial unrest and opposition.

Why does this matter? The fact that the Magna Carta was the product of a feudal rebellion accounts for why in the later Middle Ages it fell into abeyance.

18th and 19th century constitutional scholars imagined that the Magna Carta was a realization of a still more ancient constitution. They believed that an ancient constitution guaranteeing the rights of free-born Englishmen could be found in the Anglo-Saxon Witan or the tribal practices of earlier Germanic peoples. But this was a myth. The Witan was no more than the King’s council. The Magna Carta was quite different. It was the product of a “baronial bridle” that could be placed upon the king because the underlying distribution of economic and military resources empowered a broad enough coalition of rebel barons.

Considered on its own, the agreement made at Runnymede in 1215 was perhaps not that important. What mattered was the precedent that it set and the fact that the Magna Carta was reissued and fought over for the next century. Magna Carta was from the first, a focal point for opposition to royal exactions. It required baronial opposition to have teeth.

Thus, by the late 16th century, it had largely ceased to matter. Shakespeare’s play King John makes no mention of it. The enduring idea of Magna Carta that no one should be subject to arbitrary treatment by the sovereign survived. But following the Tudor suppression of the aristocracy, there was no means of compelling the sovereign.

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There are lessons here for today.

Constitutions are seldom self-reinforcing in the very long run. The Roman Republic was the longest lasting and most successful regime in antiquity. But its numerous devices for preventing one-man rule eventually could not stop Julius Caesar and Gaius Octavianus. A similar account applies to the institutions of medieval city-states such as Florence and Venice.

Similarly, the institutions that supported democracy and the rule of law in the 20th century may need to be reworked to meet the challenges of the 21st.

In order to inspire the American Revolutionaries in the 18th century, Magna Carta had to be revived and reinterpreted in the 17th century by English Parliamentarians. The preservation of the rule of law may require similar acts of imagination and courage. If we do need to reinvigorate or reform our own institutions, we should not neglect critical episodes in English history such as the background to the Magna Carta in the 13th century and to the conflicts between crown and Parliament in the 17th century for guidance.

There have been countless oppressive rulers throughout history. What distinguishes the barons of 1215 is that they coalesced around general principles (as well as some specific demands). Rather than replacing a bad ruler with "their guy," they had thought deeply about the roots of the crisis they found themselves in. One present moment may require a similar level of reflection.

Note: This column draws on my paper with Desiree Desierto and Jacob Hall. “Magna Carta” available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4503918. This work was funded by the Templeton Foundation.