Defending our Liberties

FOR LIBERTY, AN ANXIOUS 800TH BIRTHDAY
JOHN O’SULLIVAN

For Liberty, an Anxious 800th Birthday

If defending rights becomes the preserve of bureaucracies and international courts, especially those geographically remote and intellectually abstruse, Magna Carta's freedoms will mean for the rest of us what David Cameron's recent inability to explain them implies: not very much at all


Celebrating Magna Carta’s birthday is inevitably a complex and even disputatious matter. Historical events, especially those that still echo in our current politics, are subject to interpretation. Different ideological movements claim to be their best modern advocates. We read old phrases on old parchment and to our surprise we notice new meanings in them. And what have long seemed the ashes of dead controversies suddenly burst into flame.

Modern governments and oppositions intensely dislike debates, especially passionate debates, that wander outside the well-worn paths of contemporary argumentation over getting and spending. They don’t feel comfortable dealing with controversies that have religious or ethnic or constitutional ideas threaded into the narrative. They fear giving inadvertent offence.

In 1988 a group of distinguished Catholic laymen—and I should mention that I am a Catholic—let it be known to the Thatcher government that any major celebration of the 1688 Glorious Revolution would be perceived as offensive by the Catholic community. As a result, to its shame, the Thatcher government celebrated what is Britain’s own 1776 or 1901 as “Three Hundred Years of Anglo-Dutch Friendship”.

In addition to being cowardly, this was also absurd. I almost wish that Britain’s Catholic community would feel offended by a triumphalist view of the Glorious Revolution because that would mean they had heard of it. Such anxieties are groundless. Though 1688 is second in importance only to Magna Carta in the constitutional development of the Anglosphere, very few people could tell you its significance in Britain today.

Is that also true of Magna Carta?

The recent occasion when David Cameron, appearing on a television late-night talk show was apparently unable to translate Magna Carta for his host might suggest so. It was a truly mysterious moment. The Prime Minister went to Eton and Oxford. Magna Carta is not particularly cryptic Latin. He must know what it means. Anthony Barnett, a writer arguing from the standpoint of the dissenting Left tradition in British politics, tried to uncover Cameron’s meaning:

One [meaning] is that Cameron was under strict spin doctor instructions not to appear like a snobbish Brit who knew better than Americans, and therefore he feigned ignorance; the other that he actually had not the faintest idea what Magna Carta meant.

Barnett goes on to suggest that this nescience might be explained by the fact that if Cameron understood the meaning of Magna Carta in British history — and especially if he felt he had to embrace it as the foundation of British liberties — then he would be compelled to abandon his government’s policy on repealing Labour’s Human Rights Act. That’s an ingenious argument, even if a slightly implausible one, but it does illustrate that Magna Carta still has the power to surprise, embarrass, compel reflection and, in general, stir up contemporary passions.

Barnett’s deeper point is to suggest that an admirer of Magna Carta must logically support the codification of human rights in a written constitution that would limit parliamentary sovereignty and executive discretion. He seems to be speaking here on behalf of several traditions in several countries in addition to his dissenting English Left one. And if his interpretation of Magna Carta carries the day generally, then it will strengthen trends in Anglosphere politics — and indeed in European Union politics — that divide rights and democracy, and privilege the former over the latter.

But I am getting ahead of myself; let me return to Magna Carta. Let me also express relief that all the variations of Magna Carta were formulated and debated before the Reformation, when all the participants at Runnymede were Catholics, so we don’t have to worry about any easily offended Catholics. Well, that’s not quite true, actually, because at the request of King John, the Pope of the day, Innocent III, condemned Magna Carta. It is instructive, however, that this condemnation has not prevented Magna Carta from becoming the founding institution of parliamentary democracy worldwide. One triumphal instance of its influence was the declaration of religious freedom at Vatican II.

What other institutions and practices can be traced in their origins to Magna Carta? Let me suggest the following five.

First, Magna Carta is the founding moment of constitutional monarchy, which is itself arguably the most successful form of government today. This is clear in the most explicit way. It asserts that the king is not above the law. He is obliged to keep his executive actions in line with that law and to respect the rights of the people — including, for instance, widows. Here is some evidence of constitutional monarchy’s spread, stability, and success.

It is the form of government  in the UK, Australia, and fourteen other Commonwealth realms. It exists also in Belgium, Bhutan, Denmark, Jordan, Lesotho, Morocco, the Netherlands, Norway, Spain, Sweden, Tonga, Japan, Liechtenstein (which is a constitutional principality), Luxembourg (a constitutional grand duchy), Malaysia (an elective monarchy) and Monaco (a constitutional principality). There are others, and not all of these regimes are models of governance, but they are usually more progressive than their non-monarchical neighbours.

According to the World Bank, constitutional monarchies have an average GDP per capita of $29,106.71 and an average life expectancy of 75.6 years. Republics have an average GDP per capita of $12,518.76 and an average life expectancy of 68.3. Of the top ten countries in the 2011 Human Development Index, seven are constitutional monarchies. I could go on, but that probably suffices.

Second — and this follows automatically from the first point — Magna Carta is the constitutional moment when the rule of law enters the modern world. If the king is subject to the law, so is everyone else in the society. Society is therefore ruled by law, and not by men. And people at all levels can begin to make plans for their lives and work on which they can reasonably depend.

Third, Magna Carta is the start of a society based on liberties. Much of the language in the document restores specific liberties— fishing rights, for example — that the king had taken in earlier periods. That is even more true of the companion Forest Charter, which restricts and shares the king’s monopoly of game, hunting and forest economic activities in general. Both documents are saturated in the language of “liberties”, the nearest thing to rights in the modern sense, in general.

Fourth, largely because of these liberties, Magna Carta is the start of a relatively liberal society of dispersed initiative, authority and personal liberty. Recent medieval historians have seen this period as more enterprising and technically innovative than in the past. Magna Carta may reflect those trends; it probably also fostered them. It helped to liberate energies as well as people.

Fifth, Magna Carta is the start of the English democracy which has since spread around the globe, in some cases to peoples and regions with only an exiguous link to Westminster. That is a more controversial claim, and I would not stress it as strongly as the earlier four points. Insofar as democracy grows out of consultative forms of government, however, Magna Carta began the process that Simon de Montfort, the English Revolution, the Glorious Revolution, the 1689 Bill of Rights, the American Declaration of Independence, Edward Grey’s Reform Act, and other statesmen and developments elsewhere carried to full fruition.

Here we run into a modern problem — or rather two. Magna Carta began the process of securing the rights of the people under the rule of law against the power of the king and/or the executive. Such rights are mentioned in Magna Carta. They are not codified in a systematic way. They come and go in different versions of the Great Charter and the Forest Charter. But everyone seems to know that they mean.

Where did they come from? And how do we protect them?

They are the rights that people at the time thought they enjoyed as a result of living in a society ruled by the law they had just imposed on the king. They are rights under common law which express an agreed notion of fairness arising from court decisions over innumerable cases. And they gain their power from a shared social consensus that distils and then upholds them.

What they are not is bright ideas conceived by clever people in colleges, monasteries and courts and then presented for ratification in some formal process. In that they differ from much modern law-making, including most constitutions and modern charters of liberties in places such as Canada and the EU, which are indeed codified—that is, conceived, written down in one place, and presented as a new set of formal rights rather than a recognition of rights already enjoyed—as an innovation rather than as a tradition. How can we protect rights we know we possess but that don’t seem to be illuminated in neon?

Consider how we did so at the time of Magna Carta. As James Spigelman describes in Quadrant‘s July issue (subscribe here), there were several Magna Cartas, as well as the Forest Charter, and they emerged, retreated, were confirmed by the king, were retracted by him, were pressed again by the barons, and by degrees were established more or less irreversibly as the law of the land. Except for the fact that at least one of the reverses involved civil war and a de facto French invasion, this was a process we can dimly recognise through the mists of time as a political one. Kings conceded what they must, and barons (and the people dependent on them) took what they could — and vice versa as power relations changed. Still, the rights first claimed against the Crown at Runnymede became accepted over time as legitimate by all, including the Crown, and eventually even the Crown joined the barons in boasting of a uniquely English way of settling differences and working together. That kind of mythology may be historically dubious but it helps ensure that later disputes will also be more susceptible to compromise — unless, as under the Stuarts, the Crown is continental and thus overly logical in its political thinking — or as we should say now, “zero-sum”.

All that happened in a system that was by modern standards non-democratic. It continued until the day before yesterday. And when full suffrage democracy arrived in Western countries, it seemed at first that the problem of how to secure human rights against the king had magically evaporated. Since the people were the king, they needed less protection against his abuses of power. They would protect their own rights via the franchise and their elected representatives.

In other words, the people’s rights are protected by the power they enjoy in democratic politics. That would have seemed a statement of the obvious in the ten years after 1945. It now sounds very questionable.

Many modern devotees of Magna Carta, usually but not always on the Left, see this argument as deeply flawed. They use phrases such as “the tyranny of the majority” or “elected dictatorship”, and as a defence against such dangers, they want to establish bodies with the special responsibility of protecting people’s rights against the laws and regulations passed by democratic assemblies. It is not always clear what institutions could restrain majority governments if they were minded to do so. Constitutional courts might restrain majority governments in theory; but judges actually remained largely deferential to political majorities for several hundred years in Anglophone democracies. After the Second World War (partly in reaction to Nazism), there was an attempt to strengthen human rights against erosion by codifying them in the UN Declaration of Human Rights and setting up an international court to protect them.

But the political environment changed. Since the 1960s there has been a slow-motion collapse of judicial deference in Western democracies. Minority groups were becoming more vocal in pursuing their rights and interests through the political process. Scholars such as John Rawls invented concepts in political theory that made certain kinds of redistributive principles — and therefore redistributive policies — absolutely binding upon majority governments. These various trends coalesced in an argument that achieved surprising circulation and acceptance: namely, that majority government was the opposite of minority rights.

Its acceptance was surprising because the argument is transparently bogus. The opposite of majority government is not minority rights but minority government. And if a minority — even a minority composed of judges — is the final arbiter of government policies, then that minority is the sovereign power. Human rights then become an excuse for a judicial oligarchy. We can see that reality clearly when an army has the final say, as in Turkey. It may be less visible when the US Supreme Court is the sovereign minority. But it is no less real.

Such scepticism was rarely heard and still more rarely acted upon, however, as the 1970s wound into the 1980s and 1990s — and as a judicial oligarchy gradually took centre stage. Not only within countries, but also internationally.

With the end of the Cold War and the revival of international organisations crippled by it, a whole series of changes combined to make international rights enforcement a live political issue. I have already mentioned the rise of judicial power within the West and the revived confidence of the UN system. In addition there was the emergence of new global and regional bodies such as the European Union that challenged the existing international order of sovereign states; new international legal institutions such as the ICC; the emergence of a UN treaty and conference process that set a world political agenda at Beijing, Rio and Kyoto; and finally the NGO revolution. Together these changes amounted to the rise of post-nationalism and of post-internationalism, weakening the sovereign nation-state, empowering new non-state actors, moving towards a new structure of trans-national order—and in particular creating new enforcement mechanisms for human rights.

Whereas previously rights could be enforced only internally within the nation-state by parliaments, voters, courts or conventions, now UN monitoring bodies and NGOs could enforce the provisions of international human rights treaties on signatory countries (and according to some lawyers, even on countries that had refused to ratify the treaties). Yet, as the Hudson Institute scholar John Fonte has pointed out, the UN monitoring bodies often demand changes in law and practice that are the basic material of domestic democratic debate. Thus, the monitoring agent for the Convention on Discrimination Against Women told the British government to implement gender preferences or quotas, to amend the Equal Pay Act to institute ideas of “comparable worth”, and to compel gender equality of parental leave. These may be sensible ideas or not—usually they are not—but they represent an intrusion into democratic politics and the attempted imposition of external priorities on a self-governing democracy.

Human rights monitoring of this level of intrusion can even attack basic rights. Thus, UN bodies are critical of the US for adhering to the First Amendment right of free speech when it obstructs the criminalisation of “hate speech”. So internationally enforceable human rights are likely to be hostile to democracy until we get something like universal agreement on what rights are and what they should protect. And that’s not likely to happen soon.

Either we regard human rights as self-enforcing in a democracy by democracy or we establish bodies to enforce rights against democracy. The only external control compatible with democracy is a body that has the power of delay coupled with the power to ask democratic majorities to think again. Magna Carta seems to me to point in the first direction; continental states rooted in Roman Law point in the other. Most states have a mixture of the two systems, with the second gaining ground over time. The development of judicial imperialism in the USA, employing the Bill of Rights as a club against majoritarian rule, illustrates a more general drift.

But there is a third and final factor we should consider: namely, whether rights will survive under any legal system without a lively popular tradition of knowing what your rights are and standing up for them. Mark Steyn, the Canadian writer whose flinty libertarian conservatism is very far from Anthony Barnett’s dissident peasant leftism while both are close to each other in a joint hostility to unaccountable power, recently quoted a 2013 report that an armed US Forest Ranger, without apparent legal authority, had instructed some tourists not to photograph a herd of bison since there was a government shutdown of the national parks. Steyn then cited the provisions of Henry III’s Forest Charter which in 1217 opened the royal forests to the freemen of England, granted extensive grazing and hunting rights, and eliminated the death penalty for taking the king’s venison. These provisions remained in being until the 1970s. Steyn wrote:

The [National Parks Service] has not yet fried anyone for taking King Barack’s deer, but they are putting you under house arrest for taking a photograph of it. It is somewhat sobering to reflect that an English peasant enjoyed more freedom on the sovereign’s lands in the thirteenth century than a freeborn American does on “the people’s land” in the 21st century.

Sobering but hardly surprising. If defending popular rights becomes the special preserve of domestic bureaucracies and international courts, especially if their jurisdiction is geographically remote and intellectually abstruse, then Magna Carta will eventually mean for the rest of us what it apparently means for David Cameron or, more excusably, for the comedian Tony Hancock: “Have we forgotten Magna Carta? Did she die in vain?”