The Magna Carta at 800, the myth and reality of the birth of the rule of law
The document has fostered democracy and human rights around the world, but it's not what you think.
There are two Magna Cartas.
There is the Magna Carta of history: a failed peace treaty between a tyrant –King John of England - and a group of disgruntled landed elites - the Barons - offended by the King’s insatiable greed. Following a tense showdown at Runnymede, the King conceded to the Barons’ terms; and, at sword point, sealed the Magna Carta. However, the ink had barely dried on the parchment before King John broke his word, mobilised his armies and sought the Pope’s support (who promptly annulled the document).
After King John’s death, the Magna Carta was revised and reissued many times over by various English monarchs -- however, its unenforceability meant it was mostly background noise. Basically, for the first few hundred years of its life, the Magna Carta enjoyed about as much legal applicability as the tragically ironic 1936 Soviet Union Constitution.
And then there is the Magna Carta of mythology, an understanding that grew over subsequent centuries, which placed the sealing of the document as the big-bang moment in the evolution of the rule of law. From this perspective, the Magna Carta as a “Mythical Charter” becomes the primordial precedent that the ruled have the ‘right to have rights’ that cannot be hurt or taken away by their rulers.
As this myth was told and retold, King John became the archetypical placeholder for overreaching, capricious, and immoral rulers. The Carta itself became less a product of baronial economic ambitions and something more pre-destined and ethical, emerging from the land and people, symbolised by the humble setting of the meadows of Runnymede. And most subversively, embedded deep within this parable was the assumption that the ‘right to have rights’ was never for the King to give but for the people to take. As a result, it was not the people who needed taming by the Hobbesian Leviathan but the absolute sovereign whose savageness needed reigning in.
Over time, with each re-telling, this narrative-come-worldview became more ‘real’ - felt more ‘real’ - as the moral sentiments it aroused moved from body to body, across space and time, adding a materiality, weight and history to this Mythical Charter.
And it was precisely this cosmo-genic myth that inspired Simon de Montfort's convening of the first Parliament; and the English Civil wars of the 17th century that culminated in the Bill of Rights of 1689, which in turn established the principles of parliamentary sovereignty. And just under a hundred years later, the same myth - except that now ‘the People’ had replaced the ‘Barons’ - was once again invoked, this time to justify the American Declaration of Independence.
In modern times, the Magna Carta has been positioned as the cornerstone of human rights. Indeed, the United Nations Universal Declaration of Human Rights is, according to Eleanor Roosevelt, designed to be the Magna Carta for all mankind. Even Australia’s former Chief Justice, Gerard Brennan, said that the Magna Carta ‘is an incantation to the spirit of liberty… the talisman of a society in which tolerance and democracy reside… [It] continues to infuse the deepest aspirations of the Australian people.’
In light of these statements, it is easy to get the impression that the principles underpinning modern democracies - from the separation of powers to citizens being both the subjects and authors of the law - were in some way prefigured in the sealing of the 1215 Magna Carta. The reality, however, is that nothing contained in the historical Magna Carta(s) actually guaranteed the later emergence of these key tenets.
Nonetheless, it was the myth of the Magna Carta that became the symbolic soil in which these ideas could take root, find nourishment and flourish. Ultimately, the symbolic significance of the Carta lies not in the clauses contained in the document but in the act by which it was created. For the first time, an equally coercive force confronted an absolute sovereign and demanded the King be bound by the rule of law.
Even more radically, this implied a moral equivalency, at the most basic level, between the personhood of the King and his subjects; and it was this recognition of the non-ruler’s political personhood - or to use Arendt’s famous term, the ‘right to have rights’ - that was foundational and existing logically prior to all other civic rights.
This may be at odds with our common sense understanding of how human rights developed. People often think that modern human rights started with the question: when and how can governments be legitimate? But this already presupposed that governments needed legitimacy in the first place. Why do they need power and legitimacy? Implicit in the myth of the Magna Carta is the assumption of a minimum equivalency of political personhoods between ruler and the ruled. This creates a moral duty on the ruled to obey the ruler only to the extent that the ruler respects and recognises the rights of the ruled. This recognition of the right to rights is not dependent on the values we enjoy in modern democracies but is the source of them.
The genius of the Magna Carta as a Mythical Charter is that it fuels the development of these new values, all the while dressing each successive - and at times radical - political and legal breakthrough in the garb of sacred tradition. This explains the myth’s vibrancy and mobility across time and space, context and histories, from legal texts, political speeches, to folktales.
And this struggle continues today, as many peoples around the world seek recognition of their political personhood against their own King Johns. Though the Magna Carta as Baronial contract may belong to English history, the Magna Carta as Mythical Charter belongs to the world.
Written by Michael Sheldrick, Akram Azimi and Matthew Gagen
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