Daniel Hannan has published a paen to the Magna Carta, a charter of rights and freedoms signed by King John of England in 1215 after he faced a revolt of his barons. Hannan adopts Lord Denning’s view that the 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.” Hannan cites examples of the Magna Carta being used in Britain and elsewhere as part of efforts either to subject government to legal restraint or uphold the rights of the individual.
The question, ultimately, is whether the Magna Carta enshrined a constitutional tradition that operated to constrain despotism in the years following its signature or whether that constitutional tradition was the result of later events. The evidence suggests that the latter case is stronger.
The Magna Carta didn’t create a durable constitutionalist tradition in England. That tradition was born over centuries of revolution and bloodshed, the outcome of which owed everything to power politics and little or nothing to a legal tradition enshrined by the Magna Carta.
The most important factor in preventing despotism in England in the years following the Magna Carta was the most obvious: Nobody could keep hold of the crown for long enough to make themselves a despot. Between the 15th and the 18th centuries, executive power changed hands through the Wars of the Roses, the extinction of the Tudor line, revolts against two successive Stuarts, and the proclamation of a republic.
Legal principles were not a critical factor in determining either who held power or how the competition for power was conducted. Instead, lust for power and religious fanaticism were the driving political forces. Henry VIII and Queen Mary executed with abandon to protect their authority and their religious policies. The parliamentary party executed King Charles I and its other opponents, motivated as much by religion and factional self interest as anything else.
Stability and ordered liberty only came in 1688 with the Glorious Revolution, in which Parliament deposed the king and chose new monarchs who were granted the crown on the condition that they accept restraints on their power. After 1688, it is reasonable to say that there was a durable constitutional tradition that was itself a historical force. But that tradition was created because the parliamentary side won a longstanding civil conflict through the operation of power rather than law.
Similarly, it would be wrong to mark the Magna Carta as a marking the birth of a tradition merely because it’s memory is cited by supporters of individual rights. Those who evoke memories of the past in support of a present agenda often reveal more about themselves and their agenda than they do about the past.
Most countries have a sufficiently varied history that those using memory as a form of advocacy can shape their country’s supposed traditions by picking the examples that support their case. For instance, does Germany have a tradition of despotism or a tradition of liberalism? Hitler pointed to powerful Prussian monarchs and ancient emperors. Liberals pointed to the revolutionaries of 1848, Prussia’s tradition of religious pluralism, and the rule of law principles at the core of the Holy Roman Empire. Citing a supposed tradition is often more of a plea to create that tradition anew than to continue it as it exists.
Had the Stuarts won the game of power politics, the Magna Carta would be a footnote in history. Had the document never existed, those opposing overreaching kings would have found something else to cite as a source of legitimacy.
But the real purpose of Hannan’s article is to put forth the Magna Carta as a guide for contemporary political philosophy. He is, after all, a Tory to whom property rights are paramount over other ends and he unreservedly defends the Magna Carta’s emphasis on security of property.
One is entitled to wonder whether a document signed 800 years ago offers much guidance on modern political questions. Back then, perhaps it was plausible that the only security the individual needed from the government was negative: Don’t touch my property and leave me alone. A self-sufficient farmer whose land is clearly defined might require nothing more.
But today, the most important property rights do not define themselves. How long should a patent on an invention last? Unless your answer is “forever,” you must admit that there is more to this question than the sacredness of individual property.
The boundaries of property rights must be determined with reference to collective interests, like fostering the diffusion of new ideas by limiting the exclusive rights granted by a patent. What are these collective interests and how do we balance them against individual property rights?
Moreover, it is nowadays impossible to imagine life as a self-sufficient entity. We cannot sit alone on our farms: Modern life demands cooperation. I cannot make the most of my most important asset, human capital, without an education. And my business cannot prosper unless public infrastructure is in place.
I cannot provide these goods on my own. To what extent does the state have a positive obligation to interfere with someone else’s property rights by raising taxes in order to provide these goods to me?
The Magna Carta offers no guidance on these questions. The world has changed since 1215 and we shouldn’t pretend that ancient documents can inform current decisions.