Two systems of law compete in the world for adoption – Roman law, and the common law, or the Anglo-American model. 

The first looks to elegance and codification, and is big on theory and grand design.  The latter grows from accidents of history, and responds to events rather than theory.  There is a difference in the underlying world views, as big as the difference between Aristotle and Plato, and between Aquinas, Rousseau and Marx, on one side, and Hume, Burke and Keynes, on the other.  I have sought to catalogue both – ad nauseam for the taste of some. 

The difference is deeper than the Atlantic.

And then there is the fact that the notion of the rule of law, which is fundamental to our view of civilisation, let alone governance, comes from the common law.  It was not developed under Roman law.

Both these facts of legal history are apparent in Magna Carta, 1215.  It was like Mafia dons making the peace, but the result is the most remarkable constitutional document the world has seen.  It is the foundation of the English constitution, and the origin of our idea of the rule of law.  It is more than 800 years old, but most of the rest of the world has not caught up with it yet.

The following comments come from reading Magna Carta by Professor David Carpenter, and should be read with two of my papers, The Story of English Law, and The Universal Juristic Schism, both published in the eBook, Some Papers on the Law (Amazon, 2023).

When considering the consequences of a document at law, we common lawyers look not for the intention of the creators of the document, but for the legal effect of what they have said. 

And that in turn develops further depending on what other judges have said those effects.  The legal effect is determined by the courts – and that may change with the composition of the court, as any constitution means what its judges say it means.  (Recent events in the U S are an alarming example.)

So, it may not surprise us if we give Magna Cartaan effect that would have seemed revolutionary to the barons – who did turn up armed at Runnymede.  (There was a war on.) 

And in turn, we would not be surprised if the authors could not have foreseen what effect would be given to their work.  (Similarly, if you told the authors of the Bill of Rights that the reference to a right to bear arms would be used more than three centuries later to fordid a sometime colonial government from banning hand guns in New York, they would have fallen about laughing.  Stuart kings had produced just such a ban for London by royal proclamation.)

And it may be just as well that we don’t need to determine what went through people’s minds in 1215, as I have no confidence that I can follow the effect of God and Rome and the oath on people back then.  As far as I know, they thought invoking God was far more decisive than invoking the law.  And we are looking at a Church that said its people were outside the general law – which would be unthinkable now.  And Hell was, I think, in the game or on the table back then – it is not now.

Much of the document that is Magna Carta now looks extravagantly beneficial to the people and adverse to the king.  The stated intention of involving the ‘commune of the whole realm’, and passing on to people down the line the benefits obtained by the barons is staggeringly ‘progressive’ – if I may use that slippery term.  Most political history turns on efforts to slam the door of the tree house on the next lot claiming to share the spoils.  That is what brought undone the revolutions of 1776, 1789, and 1917.  Yet the barons and their lawyers saw this coming in 1215.

This is amazingly precocious – and so much more uplifting than the grand lie about all men being created equal; or the danger of giving a right of rebellion to people disaffected by the new regime.  (It would become a fact of English historical life that a king who acted badly could be dethroned.  Richard II is just the most fabled example.  But it is not a good idea expressly to confer such a bathplug clause in the constitution – which the English realised when they went from 1215 to the Declaration of Rightsin 1689.)

The significance of the commune, as a sworn group, would be far more obvious to French historians having regard to the communein Paris in 1792 and 1870.  Marc Bloch, in his wonderful work, Feudal Society said this:

In feudal society, the oath of aid and ‘friendship’ had figured from the beginning as some of the main elements of the system.  But it was an engagement between inferior and superior, which made the one the subject of the other.  The distinctive feature of the communal oath, on the other hand, was that it united equals….  It was there in the commune that the really revolutionary ferment was to be seen, with its violent hostility to a stratified society.   The originality of the latter [feudal] system consisted in the emphasis it placed on the idea of an agreement capable of binding the rulers; and in this way, oppressive as it may have been to the poor, it has in truth bequeathed to our Western civilization something with which we still desire to live.

The security clause of Magna Carta was always going to be exhibit A in a petition to Rome on the ground of duress.  When Macaulay said Strafford was ‘the first of the rats’, he forgot King John.  The English knew that, and inserted a clause that the king would not go the pope to get any deal revoked.  The drafting was altered to exclude reference to the pope personally.  That had been bad cosmetics.

There is no basis for suspecting that the king negotiated in good faith.  You could say much the same for the other side.  King John had what is now called a ‘transactional’ approach, similar to that of unreliable people today like Trump or Boris Johnson.  They routinely enter agreements with no intention of honouring them. 

That seems to me to be very likely to have been the case here.  And of course, he had the fall back of being able to get Rome to quash the deal – even if he had to pawn the kingdom to do so.

So, he made extravagant promises that would diminish the status of his successors.  We also see that process at work today.

And this was massive interference by a foreign potentate in the affairs – nay, in the constitution – of the English. 

The English were told moonshine about the E U and ‘sovereignty’.  The E U had nothing on the Vatican, and no decent independent nation could tolerate that kind of interference.  The bible has something to say about serving two masters, and English kings who owed allegiance to a foreign power were placed in a horrible position of conflict of interest. 

It is ironic that that issue came to a head after the pope got into a position of conflict of interest involving that quaint body called the Holy Roman Empire – and as a result he could not accommodate a routine request from Henry VIII – who promptly decamped from Rome, in high style, and higher hypocrisy.

There is a juristic issue about an English king being guilty of treason, but there is no doubt that King John and Kings Charles II and James II betrayed their nation in their dealings with the Vatican – for which the English banned Catholics from sitting on their throne.

So, the English came to bring their kings and priests into line.  That just left them to deal with the nobility and to enfranchise the whole people.

There were three main planks that sat on and in the developing common law – Magna Carta, in 1215; the Act of Supremacy in 1534; and the Declaration of Rights, 1689.  Each was said to be just a recognition of custom or precedent, but each may be seen as part of the movement seen by Sir Henry Maine as the transition from status to contract.

It is against that background that you can see the failure of Europe to develop on its own the concept of the rule of law.

And now in 2023, we just pedal on surrendering our status to robots with whom any contract is worthless.