WeeklyWorker

26.03.2015
Revised and fought over

Magna Carta and long history

There are celebrations, but also deflations. Mike Macnair examines the rival interpretations

2015 has a good many anniversaries, some of which are being taken more seriously by the establishment and media than others. 1015 was the year in which Knut, prince of Denmark, invaded England, afterwards establishing himself as king and holder of a North Sea empire that included Denmark, England, Norway and parts of Sweden. June 1215 is the 800th anniversary of the first version of the royal grant, later called Magna Carta. November 1315 saw the battle of Morgarten, which is commonly taken to have been decisive in achieving Swiss independence. October 1415 saw the battle of Agincourt in France, opening a period in which for a few decades substantial parts of France were occupied by the English.

September 1515 saw the battle of Marignano (near Milan), with the first decisive use of artillery in an open-field battle. June 1615 saw the fall of Osaka to the forces of Tokugawa Ieyasu, capping the creation of the Tokugawa shogunate, which was to rule Japan till 1867. September 1715 saw the ‘Fifteen’, a Jacobite rising in Scotland and the north of England against the Hanoverian succession, and its defeat.

March 1815 saw the return of Napoleon Bonaparte from exile and June his defeat at the battle of Waterloo; the year also saw the end of the last war between Britain and the USA (the ‘war of 1812’); and British annexations of Sri Lanka and of the Ionian islands (Corfu, Paxos, Cephallonia, etc).

1915 saw in April the beginning both of the Gallipoli campaign (memorialised in the new film The water diviner), and of the Armenian genocide in Turkey; in May the sinking of the Lusitania, which is attracting media attention, though the later discovery that the ship was in fact carrying arms (and as such was a legitimate military target) is rather downplayed,1 and Italian entry into the world war; July, the beginning of US military occupation of Haiti (against a “German threat”!).

Magna Carta celebrations, however, have begun early and will continue all year. The British Library and other institutions are holding exhibitions of the text. The British Library’s is accompanied by a book, Magna Carta: law, liberty, legacy.A long list of events can be found at the website of the Magna Carta Trust.2 The general theme is that Magna Carta represents the origin of the ‘rule of law’. It is also suggested to represent a peculiarly British phenomenon: mistakenly, since in the same period charters of liberties were granted in Léon and in Aragon (in modern Spain), at Constance to the Lombard League of northern Italian cities, in Naples-Sicily, in Hungary, and so on. The left is not quite unrepresented at the feast of Magna Carta: leftwing historian Peter Linebaugh’s 2008 The Magna Carta manifesto: liberties and commons for all (is high on the list of ‘Magna Carta’ searches.

But there is also a ‘deflate Magna Carta’ tradition in the establishment. 1640s-50s revolutionary leader and then military dictator Oliver Cromwell is alleged (in reality by royalist propagandists after his death, so very probably untruly) to have called it ‘Magna Farta’.3 But even if the story is untrue, the ‘deflating’ tradition is real and runs through a substantial tradition among British academic historians.

The latest product of this deflating tradition is the speech of Lord Sumption, a justice of the UK supreme court (and, on the side, a practising medieval historian), to the AGM of the Friends of the British Library on March 9.4Sumption’s closing paragraph is:

Ultimately, one’s attitude to political myths of this kind depends on where one situates one’s golden age. Those who created the myths that surround Magna Carta located their golden age in the past. Their ideal was the recapture of an imagined paradise lost. To Coke and his generation it really mattered that the common law as they understood it in the 17th century should have existed in much the same form since the days of King Alfred or the legendary Brutus the Trojan. It really mattered that it should have been encapsulated in Magna Carta. The authority of their legal programme depended in large measure on its supposed antiquity. Otherwise, they would have been mere revolutionaries and not the respectable English gentlemen that they believed themselves to be. Today, the pendulum has swung the other way. ‘Medieval’ has become a synonym for barbarous. We are frighteningly ignorant of the past, in large measure because we no longer look to it as a source of inspiration. We are all revolutionaries now, controlling our own fate. So when we commemorate Magna Carta, perhaps the first question that we should ask ourselves is: do we really need the force of myth to sustain our belief in democracy? Do we need to derive our belief in democracy and the rule of law from a group of muscular, conservative millionaires from the north of England, who thought in French, knew no Latin or English and died more than three quarters of a millennium ago? I rather hope not.

Though, as I have said, Sumption is an academically respectable medieval historian, this ‘deflating’ version of Magna Carta is also a myth - albeit one of a different kind than the myth it tries to deflate.

What is it all about?

Early

In a certain sense, celebrating the eighth centenary of Magna Carta in 2015 is not just a few months early, but two years early. But this ‘two years early’ has a (true) political meaning.

By negotiations extending between June 10 and 19 1215 at Runnymede, near Staines, a peace agreement was made between King John and his baronial, clerical and urban opponents, with whom he had been at technical war (subject to an equally technical truce) since April that year.5 On May 17 the insurgent barons had managed to seize London, and by doing so they had forced the king to the negotiating table. The agreement reached was given formal shape as a charter - conveyance of property - granted by the king to God, and to ‘all free men of his realm’ generally. Exactly when the document was executed - with the king’s Great Seal - is not certain. By a separate treaty, the baronial leaders were to retain control of London, and the archbishop of Canterbury of the Tower of London, as pledges to secure John’s performance of those of the terms of the ‘charter’ which addressed immediate issues. Chapter 61 of the charter itself provided further security, under which the barons would elect 25 of their number who would have power to ‘distrain’ on John (seize his property) to force him to perform.

By late July, however, it was clear that this peace arrangement was breaking down. The king dragged his feet on removing objectionable officials and returning land he had seized; the barons failed to do the unqualified homage (in effect, oath to serve) the king had wanted, failed to hand over territory they controlled, and failed to pay the king the revenues he was entitled to. In many cases the application of the charter turned on what was ‘unjust’ and this, unsurprisingly, continued to be disputed. For example, the committee of 25 awarded Northumberland, Cumberland and Westmorland to the King of Scots ... By early August King John had arranged to borrow money to pay mercenaries; in that month the pope formally annulled the June charter, on the basis that it was procured by duress; a section of the baronial party decided to call for John to be deposed (and later offered the crown to the French dauphin, later King Louis VIII of France; another section gave their fealty to the King of Scots); and King John embarked on open war against his opponents.

So far, the charter would be remembered merely as a failed peace deal in a civil war: there were plenty of these in the middle ages and there have been a good many since (like the recent Minsk ceasefire agreements in Ukraine ...). What changed things was that in October 1216 John died unexpectedly, probably of dysentery, leaving as his heir his nine-year-old son, Henry (III). In November the council which acted as Henry’s guardians reissued a cut-down version of the 1215 charter, without its most anti-monarchical elements, with a view to winning wider support for the infant king’s side in the civil war. In September 1217, a new treaty brought the civil war to an end, and a new version of the charter was again reissued; alongside it was issued the ‘Charter of the Forest’, limiting the king’s claims in relation to areas which were royal woodlands. ‘Magna’ Cartanow got its name by contrast with the Carta de Foresta. The 1217 charters were reissued, in exchange for a tax, in 1225, and in this form Magna Carta became the first statute in medieval collections of statutes. It was reconfirmed in 1237, 1297 ... and so on.

2015 is therefore ‘early’, because but for 1216 and 1217 the charter would certainly have been insignificant and no sort of an icon. This ‘early’ date is not a medieval or early modern product: the collections of statutes start with the 1225 version, and so does Sir Edward Coke’s Second part of the institutes (suppressed by Charles I’s government at Coke’s death and printed by order of the Long Parliament in 1641). Seventeenth century radicals were as likely to appeal to the (spurious) Laws of Edward the Confessor (the last Anglo-Saxon king) as to 1215.6 The focus on the date of 1215 is, rather, a Whig or Liberal political choice. It implicitly reads 1215 in a sequence, together with Simon de Montfort’s 1265 parliament (the first to which representatives of the towns were definitely summoned), the depositions of Edward II in 1327 and of Richard II in 1399, the Long Parliament, civil war, trial and execution of the king, and the revolution of 1688. In this way, it implicitly asserts that progress can be achieved through resistance and illegal means.

This is, in reality, a truth: the terms of the 1215 charter were derived from the negotiating positions produced by the baronial, etc opposition; King John’s conduct before 1215, and that of his father Henry II, gives every reason to suppose that no such concessions would have been forthcoming without the forcible resistance - even if it is also true that John’s death and Henry III’s infancy were decisive in the actual decision to accept the larger part of the 1215 deal in 1216-17.

Tory interpretation

It is this political character of the 1215 date which produces as its ‘other’ the ‘Magna Farta’ deflating approach to the whole thing. The charter is, we may be told, just about the particular interests of the barons (in Sumption’s version, the barons, the church and the City of London). According to Sumption, who certainly should know better, “Gradually, the English forgot about Magna Carta ... Magna Carta as we know it was reinvented in the early 17th century, largely by one man: the judge and politician, Sir Edward Coke.” He should know better not just because Holt’s Magna Carta both polemicised directly against prior versions of this interpretation (chapter 8) and showed continued use down to 1300 and continuity into the ‘myth’ (chapter 11), but also because Sir John Baker’s work shows lawyers ‘reading’ (lecturing) on Magna Carta as soon as texts of the Readings appear in the 1400s; making it likely that non­-reference to the charter in the 1300s is a trick of the surviving sources.7 Whatever might be the case in relation to 1215, the 1225 Magna Carta was a statute in force and lawyers needed to learn about it.

The political need to deflate comes precisely because the 1215 date suggests that progress can be achieved by resistance and illegal means; and for Tories such a narrative is anathema.

For this reason, too, the narrative of the shining light of 1215 has more purchase in the USA - where 1688 can lead, in turn, to 1776 - than in the UK, where 1776 was a moment in the decline of British Whiggism, leading, eventually, to Dangerfield’s ‘strange death of Liberal England’8 in the early 20th century.

Sumption is a Tory: in 1979 he co-authored with Keith Joseph a polemic against egalitarianism, and in 2000 he said that “basically I’m a Tory who votes Labour much of the time.”9 When he says in his Magna Carta speech that “We are all revolutionaries now” he does not mean that we are all advocates of the overthrow of the state; rather, in the sense that the Thatcherites could be considered to be “revolutionaries” compared to ‘conservative’ and ‘backward-looking’ old Labourites and so on. Before he joined the judicial bench, his advice was classic Toryism: “A judge ought to have a healthy balance of respect for the governmental function, combined with scepticism about the motives of particular ministers or officials” (emphasis added)10: what can go wrong, he says here, is not about the interests and behaviour of government as such, but merely about particular individual misbehaviour.

Sumption writes in his Magna Carta speech:

But I do have a problem with the distortion of history to serve an essentially modern political agenda. Claims like those which I have just cited are high-minded tosh. They represent the worst kind of ahistorical Whiggism. They encapsulate the view mocked a generation ago in a famous essay by Herbert Butterfield, that the past can be viewed as an accident-prone, but on the whole persistent, march towards the manifest rightness of our own values.

Here Sumption appeals to the historical profession’s own sacred text: Herbert Butterfield’s The Whig interpretation of history (1931). Though Butterfield himself drew back from his 1931 polemic in later work, and though almost all of the concrete claims used in the polemic now look problematic, The Whig interpretation has become a foundation text in the training of historians. In reality, its methodological claims, abstracted from the particular concrete points, support an inverse: a Toryinterpretation of history. The core of this Tory interpretation is a series of points: that there is no such thing as historical ‘progress’; that humans are naturally unequal, so that government is absolutely necessary (Sumption’s “respect for the governmental function”) and naturally selfish (Sumption’s “scepticism about the motives of particular ministers or officials”); that the only genuine solidarities are those of family (Maggie Thatcher’s “no such thing as society”) and nation.11 Butterfield is merely the respectable 20th century methodological tag applied to an old line of argument which goes back to Clarendon’s History of the rebellion, written as a self-serving memoir, printed later, in the early 1700s, in support of Tory political campaigning.

In Bonar Law Memorial Trust v IRC (1933) the King’s Bench Division of the High Court held that the teaching of Conservative Party principles is not a charitable purpose so as to be tax-exempt. However, the effect of sanctifying Butterfield is that the historical profession has made respect for certain core Conservative Party principles into a criterion of academic respectability in the field: and thereby arranged for the teaching of them under the name of ‘historical method’ in publicly funded and charitable schools and universities.

MarxifiedToryism

‘MarxifiedToryism’ is an approximate name I coin here for two independent, but perhaps related, phenomena.

The first is the adoption by Tories of the idea of fundamental differences between the modern and the medieval (or, for that matter, the ancient) to use in political ‘deflating’ arguments like Sumption’s.

The second is the attempts of various leftwing authors of very different traditions to create a ‘Marxism’ which does not fall foul of the methodological structures of Butterfieldism: or, for that matter, which does not fall foul of Weber’s arguments, or those of Karl Popper, against the allegedly ‘teleological’ character of Marxism. These have similar effects: in denying historical progress in the past, they deny the possibility of historical progress in the future as a goal of current political action.

Sumption’s speech provides examples of the first type:

The law which governed the king’s relations with his lay subjects was of a very limited kind. It was closer in spirit to a private contract than a constitution. It was concerned almost entirely with the king’s feudal rights and obligations. These rights and obligations related to the terms governing the holding of land, at a time when land was the main source of wealth and the sole source of status apart from royal or ecclesiastical office.

Or

… its contents are rather mundane. There are clauses to protect the interests of the barons and their chief allies, the church and the city of London. These are followed by a large number of highly technical provisions about the feudal incidents of land tenure. They are essentially about money.

All three statements are true. But, in the way they are put together in the ‘deflating’ argument, they also contain a real substantive silence which hides the extent to which the ‘Magna Carta process’ involved collective action to try to hold the ruler to account; and to which the reissues of 1217 and 1225 were understood at the time to involve real concessions, and ones which were actually applied by (the king’s) judges, even when it would have been more convenient for government if they were not applied.

Moreover, Sumption omits the extent to which the “highly technical provisions about the feudal incidents of land tenure” were potentially beneficial not only to barons holding directly of the king (“in chief”), but also to their free sub-tenants. The speech is heavily ‘spun’ against recognising the existence of benefits to people other than the immediate participants in the active opposition.12

I have polemicised before this against the second variety - of ‘Marxisms’ which sever the connection between capitalism and pre-capitalist forms in the interest of avoiding ‘teleology’ or of ‘historicising’ Marxism: ie, limiting its significance to the analysis of capitalism (in turn understood as limited to steam-driven industry). Some of the arguments of Chris Cutrone have this character, as do some of those of JairusBanaji (albeit inconsistently with the actual nature of Banaji’s own studies); and numerous other authors. I will not repeat what I have said at length before in this paper on this general issue,13 beyond two fundamental points.

The first point is, although the purpose of left versions of ‘MarxifiedToryism’ (perhaps better ‘Torified Marxism’) is commonly to assert the idea of revolution against the supposedly mechanical and evolutionist ‘Second International Marxists’ and ‘official communists’, in reality these interpretations sell the pass to the Tory interpretation of history and its continental equivalents: since we are to be disqualified from reasoning from historical experience prior to capitalism (‘teleology’ etc), there is no ground left for supposing that there can be progress in any fundamental sense or, for that matter, any society beyond capitalism. The ground for critique of the existing society then has to be found exclusively within the existing society’s ideology - or, as in Walter Benjamin, there has to be a despairing appeal to a past which shows a ‘path not travelled’, or to a Sorelian myth. To take this path is to become what Marx and Engels stigmatised as utopian socialists ...

The second point is that it seems to me that the weight of the evidence is that fundamental social change takes place in the longue durée with episodes of rapid change (revolutions), the latter particularly associated with the overthrow of state forms. I have offered in two articles in Critique in 2009 and 2011 a general schema or outline hypothesis, derived from, but not quite identical to, traditional ‘historical materialism’, of what this approach might imply.14

Magna Carta is a good example. It is notitself the ‘rule of law’ idea, but it nonetheless bears upon the development of the genuinely capitalist ‘rule of law’.

Laws, charters, rule of law

The idea of the ‘rule of law’ under that exact name is modern. But it has significant pre-modern antecedents, and Magna Carta is an example of one of them.

The Greek philosopher, Aristotle, argued in his Politics that “it is preferable that law should rule rather than any single one of the citizens”, and laid out arguments for and against the idea.15 Rather similar arguments were offered by several authors in the late Roman republic.16 In these arguments we are concerned with lexscripta: laws in writing, but interpreted by politicians and citizen courts, not by specialist lawyers. Aristotle is aware of the interpretation problem this poses, and uses it as an argument for the limits of government of laws.17 It is also striking that both in Aristotle’s discussion and in the Roman Livy’s usage the ‘government by laws’ is connected to the institutions of short, fixed-term magistracies, and that the basic alternative is monarchy/tyranny, the rule of one man. This harks back to the foundation-myths of Athenian and Roman lexscripta, which saw these as arising from class-political conflict in the cities. The written laws set limits to the personal power of the public officials; but they do so primarily by enforcing procedures which limit the duration of the powers of the public officials, or which vest some powers in the citizenry as a whole.

This makes these concepts profoundly different from the modern ‘rule of law’ idea. In the city-state republics the material ground of the ‘government of laws’ is not the independence of the judiciary or the autonomy of the lawyers. It is the weakness of the state and relative strength of the (armed) citizenry. The political authority of the written laws, that of the (elected or appointed by lot) magistrates, and that of the judicial judgment of the lay jurors, are all grounded on the immediate consent of the citizens.

The Roman empire evolved - especially in its later period - into a much stronger military-bureaucratic state. In doing so it passed through two processes. First, military development had the effect that the soldier, instead of being a citizen-conscript serving for a single campaigning season, had in effect leased himself to the commander for a term of years. This is not the same as the sale/hire of the soldier’s labour capacity for a wage found in medieval and modern mercenary armies: there are several features - oath to the commander, branding, corporal punishment, legal disabilities - which mark the soldier’s partial loss of citizenship (relative to ordinary citizens) and quasi-enslavement for the duration of his service. Second, under Augustus and his successors a standing civil bureaucracy emerged out of the slaves and freedmen of the Princeps (and partially, more strongly later, out of personal patronage by the Princeps of members of the lower strata of the Roman and provincial elites).

During the Principate the idea that the emperor should ‘govern by law’ emerged. But this idea in fact places far less restraint on the ruler than the older democratic and republican ‘government of laws’ ideas. A small illustration: the Roman Twelve Tables prohibited privilegia: ‘laws’ aimed at particular citizens. The imperial lawyer, Ulpian, explains that the emperor’s will is law; he is then forced to explain that there is a distinction between general rules and imperial decrees affecting particular individuals.18

‘Government by law’ is thus an internal ideology of the state, without effectively regulating the relations of taking between the state and the class elite or the larger society.

In the medieval period legal limits on government are indeed in force. The common political form in which the king, as the state, is (at least purportedly) limited by law in medieval society is by explicit grant of rights and liberties, considered as a kind of property right, to the subjects, as in Magna Carta; a number of similar charters elsewhere in Europe; and very numerous grants of rights and liberties to particular cities or groups.19

Though it may seem very different in form, the grant of rights and liberties is in one respect a lot closer to the early-modern and modern ‘rule of law’ concept than the concepts in circulation in antiquity. This is that the grant of rights assimilates rules limiting the state power to ordinary property rights. The grants then become in principle justiciable within the framework of the core ideas of property law. As a result, to the extent that the legal profession and the judiciary have autonomy from the state due to dependence on fee income from the class elite, the profession and judiciary are capable of expressing the interest of the class elite in limiting takings by the state.

As with ‘government of laws, not of men’ the ultimate material backing of this role is the relative weakness of the state. The state - the king’s immediate following - certainly exists, but it does not have an absolute preponderance of military power, as against a sufficient coalition of armed forces raised by the baronial magnates.

Like ‘government of laws, not men’, however, the grant of rights and liberties is not an internal ideology of the state which renders it coherent. This coherence of the medieval state is constructed primarily on the basis of the patron-client chain, which is the normal core of feudalism: the state is the household of the king, and also the great noble magnates are, simply because they are noble magnates and the king’s immediate feudal tenants, entitled to participate in some way in government. The ideas of lordship and allegiance are thus at its centre.

The modern ‘rule of law’ practice emerged historically out of the ideological overlay of ideas drawn from ancient republicanism (‘government of laws, not of men’) on the existing late-medieval ideas of charters, grants and claims of rights, in the creation of a composite ideology of resistance to royal power and, as a result, of the creation of institutional forms which can substitute for (and, in military and financial terms, improve on) the late medieval ‘allegiance’ nation-kingdom.

The result of the development of this composite ideology in concrete political struggles was the emergence of a state, the post-1689 British state, which was built on it. All subsequent constitutional or ‘rule of law’ states are directly or indirectly modelled on this British state. Such states are characterised by the fact that they both have law as the core of their internal ideology and treat the state and/or individual state actors in litigation as a kind (albeit in various respects a special kind) of private actor, which has to act within the private law rights of its subjects/citizens.

The central institutional form of the ‘rule of law’ as an internal state ideology is the central role of statutes, codes and regulations made under statutes in defining the structure of the state. Ad hoc decisions based on inherent state authority are, at least formally, replaced by the mechanisms of law-making. After the 1787 creation of the US constitution, states normally come to have formal written constitutions, taking the form of a kind of lexscripta. In later medieval states lawyers as a professional group had played an increasing role in state administration: in the transition to the modern rule of law we see an apotheosis of the lawyers.

It is pretty clear that the ‘rule of law’ is better than ancient ‘government of laws’ or ‘government by law’; and that it gives more benefits to wider parts of the population than medieval grants of rights and liberties like Magna Carta. But it grows out of the latter, contrary to Sumption. And the apotheosis of the lawyers, which the mainstream intend to celebrate by celebrating the anniversary of Magna Carta, is double-edged. When a man like Sumption, holding high judicial office after a career in which he was exceptionally well-paid, can argue that “we are all revolutionaries now”, against Whiggism, andin favour of “respect for the governmental function”, what seems on offer is not ‘rule of law’, but a dictatorship of the judicial bench - and one ultimately governed by who has the deepest pockets to pay the lawyers’ fees.

mike.macnair@weeklyworker.co.uk

Notes

1. Eg, various reviews of Erik Larson’s centenary book, Dead wake London 2015; cf also http://en.wikipedia.org/wiki/Sinking_of_the_RMS_Lusitania.

2. http://magnacarta800th.com/events/; less up-market is www.runnymede2015.com.

3. Cited by P Gaunt, ‘“The single person’s confidants and dependants”?: Oliver Cromwell and his protectoral councillors’ in DL Smith (ed) Cromwell and the interregnum London 2003.

4. www.supremecourt.uk/docs/speech-150309.pdf.

5. This and much of what follows summarises information from JC Holt Magna Carta Cambridge 1992.

6. J Greenberg The radical face of the ancient constitution Cambridge 2001.

7. Readers and readings in the Inns of Court and Chancery London 2000, ppxv-xxii.

8. Constable 1935; but only really widely used from the reprint: New York 1961.

9. I Irvine, ‘Jonathan Sumption: donnish but deadly’ The Independent October 11 2011.

10. Ibid.

11.Cf also R ScrutonThe meaning of conservatism (London 1980) for more systematic argument along similar lines.

12. See, again, JC Holt Magna Carta Cambridge 1992, especially chapters 8 and 9.

13. Eg, in my Weekly Worker reviews of Boris Kagarlitsky’sEmpire of the periphery (April 1 and 8 2009), of Henry Heller’s The bourgeois revolution in France 1789-1815 and David Parker’s Ideology, absolutism and the English revolution (June 3 and 10 2010), and of JairusBanaji’sHistory as theory (January 20, 27, February 17 2011); or in my responses to Paul Cockshott’s critique of Revolutionary strategy (June 24, July 1 2010).

14. ‘Marxism and freedom of communication’ CritiqueVol 37, 2009, pp565-77; ‘Historical blind alleys: Arian kingdoms, Signorie, Stalinism’ CritiqueVol 39, 2011, pp545-61.

15. Book 3, chapter 16, 1287a15.

16. Cicero Pro Cluentio §§147-48. Pseudo-Sallust EpistolaadCaesarem ii.5.3, Livy (writing about the republic, albeit under Augustus) Aburbe condita ii.1.

17. Loccit and following discussion; also earlier at 1286a-b.

18. Twelve tables: Tab 9.1, from Cicero De legibus 3.4.11. Ulpian: Institutes 1, D.1.4.1, reproduced in Justinian Institutes 1.2.6.

19. G Hindley The book of Magna Carta London 1990, pp211-12 provides a convenient short list of contemporaneous grants elsewhere in Europe.