Liberty and Rights in the Magna Carta

Obviously enough, the history of the Magna Carta is significantly more complicated than what Daniel Hannan can recount in a newspaper column.

And yet, Hannan, a British representative to the European parliament is correct to emphasize how momentous this 1215 document has been.

Some believe that human culture is founded on dramatic events. Freud famously suggested that it all began when a band of sons murdered their father. Other modern versions see its origins in revolution, in a rebellion against unjust and oppressive authority.

For that among other reasons the fact that British civilization began with a deal, with a contract between King John and a group of rebellious feudal barons bears emphasis.

Hannan writes:

It was at Runnymede, on June 15, 1215, that the idea of the law standing above the government first took contractual form. King John accepted that he would no longer get to make the rules up as he went along. From that acceptance flowed, ultimately, all the rights and freedoms that we now take for granted: uncensored newspapers, security of property, equality before the law, habeas corpus, regular elections, sanctity of contract, jury trials.

History as negotiated compromise. Who would have imagined such a thing?

Hannan hastens to note that the Magna Carta did not create democracy. In fact, it was not really about democracy:

The very success of Magna Carta makes it hard for us, 800 years on, to see how utterly revolutionary it must have appeared at the time. Magna Carta did not create democracy: Ancient Greeks had been casting differently colored pebbles into voting urns while the remote fathers of the English were grubbing about alongside pigs in the cold soil of northern Germany. Nor was it the first expression of the law: There were Sumerian and Egyptian law codes even before Moses descended from Sinai.

Hannan takes it a further when he waxes philosophical about what was achieved in 1215:

The rights we now take for granted—freedom of speech, religion, assembly and so on—are not the natural condition of an advanced society. They were developed overwhelmingly in the language in which you are reading these words.

When we call them universal rights, we are being polite. Suppose World War II or the Cold War had ended differently: There would have been nothing universal about them then. If they are universal rights today, it is because of a series of military victories by the English-speaking peoples.

Since we always assume that human rights are the natural condition of human beings, we are somewhat taken aback by the notion that they are an Anglo-Saxon invention, imposed by military conquest.

This does not make it an unnatural condition for human beings, but still, human rights did not flower naturally in all places and at all times.

Hannan adds that the rights enumerated in the Magna Carta were conceived in negative terms. They limited what the king or the government can do to individuals, what he can impose on them by fiat:

And indeed, Magna Carta conceives rights in negative terms, as guarantees against state coercion. No one can put you in prison or seize your property or mistreat you other than by due process. This essentially negative conception of freedom is worth clinging to in an age that likes to redefine rights as entitlements—the right to affordable health care, the right to be forgotten and so on.

Thus, at their inception, human rights were not entitlements.

Nor, Hannan reminds us, were they about universal democracy, taken to be the expression of the will of the majority.

As you know, at its inception, the United States was anything but a participatory democracy. At a time when only property owning males could vote, America’s government did not express the will of the majority of the people.

Hannan writes:

Liberty and property: how naturally those words tripped, as a unitary concept, from the tongues of America’s Founders. These were men who had been shaped in the English tradition, and they saw parliamentary government not as an expression of majority rule but as a guarantor of individual freedom. How different was the Continental tradition, born 13 years later with the French Revolution, which saw elected assemblies as the embodiment of what Rousseau called the “general will” of the people.

When practiced by totalitarian dictatorships, the concept of the general will of the people became detached from democracy. Most Communist dictatorships called themselves democracies and insisted that their leaders embodied and expressed the general will of the population.

I suspect that we Americans are not ready to return to the old days of more republican governance, but still it’s intriguing to ask whether a government can express the will of the majority and can also guarantee the individual freedoms of everyone.

At the least, we should get over the idea that holding a democratic election is somehow a political panacea.