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Features

A charter for all

Nick Spencer

It's 800 years this month since the document fêted as the foundation of Western democracy was first drawn up. And as Nick Spencer discovers, the Magna Carta owes as much to Christianity as to murky politics.

The praise with which we shower Magna Carta can get a bit embarrassing. The Great Charter is, according to Barack Obama, the document that 'first laid out the liberties of man.' It is the reason, according to David Cameron's 2014 Party Conference speech, why we do not need lecturing on humans rights from judges in Strasbourg.

It has been heralded as the foundation of good government, of democracy, of the US Declaration of Independence, and of the Universal Declaration of Human Rights. Sellar and Yeatman put it well in their spoof, 1066 and all that, when they described it as 'the chief cause of Democracy in England, and thus a Good Thing for everyone (except the Common People)'. But it was surely best celebrated by Tony Hancock, orating before his fellow jurymen and women in Twelve Angry Men, when he exclaimed 'Does Magna Carta mean nothing to you? Did she die in vain?'

ICONIC BUT PERPLEXING

The document itself can be a bit perplexing when you first read it. It is sometimes remarked that when undergraduates first open a copy of The Origin of Species they expect to find a text that vigorously shakes the intellectual foundations of European civilisation to the core, and are surprised and disappointed to find themselves reading page after page about pigeons.

So it is for those who first encounter Magna Carta. We expect a magnificent declaration of human dignity and freedom and are surprised to find a range of technical and obscure royal concessions covering everything from tax and inheritance to forestry practice and the location of fish weirs. Nevertheless, for all its technicalities and specificities, Magna Carta remains justly iconic, a highly-principled and highly-influential document, whose principles and influence owe a great deal to the church.

UNPROMISING ORIGIN

The specificities and circumstances of its creation are well known. King John was, by all accounts, a dreadful man and a dreadful monarch. His hunger for money first to maintain, and then to recapture, his lands in Normandy was insatiable; his means for raising it brutal and arbitrary, with little regard for due process, custom or basic fairness.

When, in 1214, his campaign was comprehensively crushed, his furious barons finally revolted, renounced their fealty, seized London, and forced the reluctant king into negotiations. After much back and forth, the king and the barons assembled on the fields of Runnymede, where the great charter was agreed and sealed (not, note, signed) on 15 June. Peace was duly been declared, London returned, and the barons renewed their pledge of fealty to the king. And that was that. A combination of selfishness, intransigence and expediency lay behind this most totemic of legal documents.

DUE PROCESS

These vicissitudes are reflected in the document, not least in the many clauses that address the king's immediate financial (mis)dealings. Others, however, shift away from circumstances to principles, with three in particular standing out. The first is that of 'due process', emphasising the importance of legal processes and of operating within a legal framework. This is referred to in a number of clauses but most famously in Clause 39 which reads:

No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his peers or by the law of the land.

A second principle is that concerning the arbitration of the king's affairs by a group of twenty-five barons. In Clause 61, the so-called 'security clause', John submits himself, as monarch, to the judgement of these barons. This constituted a massive and radical challenge to the sovereign authority of the king (and it is therefore no surprise that when the document was reissued in 1225 this clause was absent.)

FREE MEN

The third principle of note is the extension of the liberties and rights contained within the charter to those who did not occupy the top stratum of English society. Provisions made for 'free men' occur in six of the charter's clauses and Clause 60 concludes with an exhortation that the liberties in the Magna Carta be extended to all by those in positions of authority.

Although it wasn't until the 14th century that 'all free men' would be extended to include those in positions of serfdom, and although the rights proclaimed in the 1215 version of the Magna Carta were only ever granted as the concessions of a king, rather than as inherent or inalienable rights in themselves, this extension of rights language remains deeply significant.

LIGHT FROM DARKNESS

Where did these principles come from? More provocatively, how did we get to talk of due process, of limitations to sovereignty, and of the rights of 'all free men' half a millennium before the so-called Enlightenment in the midst of what we moderns like to think of as a period of unrivalled brutality and barbarism?

The answer lies in the very first clause of the Charter, the promise of King John that 'the English Church shall be free, and shall have its rights undiminished, and its liberties unimpaired.' To our modern ears, this sounds like a straightforward power-grab. And in one sense it was. We shouldn't romanticise the church's role in the development of Magna Carta, any more than we should romanticise the Charter itself.

Although he had fallen badly with King John early on in his reign, Pope Innocent III, whose time on the throne of Peter almost exactly coincide with John's on the English throne, proved very supportive and helpful to John in his travails. In wake of John's first major run in with barons in 1212, Innocent had helpfully declared England a papal fiefdom, which John then subjected to papal authority and papal protection.

Safe in the knowledge that the pope would find in his favour, King John suggested that his dispute be arbitrated by a group of eight independent adjudicators, sitting under the direction of the Pope. A mere two months after Magna Carta was sealed, the king appealed to the pope, who found the Charter to comprise of promises made under duress and annulled it. All in all, the papacy, then somewhere close to its supreme power, does not emerge as a shining defender of civil liberties in the story of Magna Carta.

A PRIESTLY TROUBLEMAKER

Innocent is not, however, the whole ecclesiastical story. John and Innocent had originally fallen out over who was to become Archbishop of Canterbury. The pope wanted the Parisian theologian and biblical scholar Stephen Langton. John did not and refused, but eventually backed down. Langton arrived in 1212.

On account of the way he eventually got to Canterbury, Langton was no natural ally of John. He modelled himself on the greatest priestly troublemaker of the age, St Thomas Becket, and took an antagonistic stance towards the king. Langton was no politician, however, and had limited success against John in his various financial and political machinations. But he did play a significant role in the negotiations between barons and king, serving as a go-between for the two parties, and helping to ensure the barons got a fair hearing.

After the Charter was annulled by pope, Innocent demanded the excommunication of those barons who had made the demands of the king. Langton refused and was sent back into exile. After John died in 1216, Stephen returned and became particularly influential in securing the 1225 reissue, to which he added a sentence of excommunication against any king, officer or baron who broke the Charter's laws.

Moreover, from the outset the English bishops played a vital role in distributing copies of the Charter in the local parishes and thereafter in securing its numerous reissues during the reign of King Henry III. In other words, behind the accidents and agendas of the baronial revolt, there is a significant story of what role Christianity played through the Church. It's a chequered story, but it does at least put Christianity back on Magna Carta's map.

THEOLOGICAL ROOTS

There is more, however. Christianity's role was not restricted simply to ecclesiastical actors but was probably greatest in the realm of ideas, in theology. This is all too often missed today, not least because contemporary political thought is naturally divorced from theology, let alone canon law, in a way that was inconceivable in the 13th century.

How we run the world, our mediaeval forbears (rightly) thought, was deeply dependent on what kind of world it was; human law dependent on biblical and natural law. So it is that the three principles of Magna Carta, to which we referred earlier, all have vital, theological roots.

Firstly, the question of due process within a legal framework was a major concern for theologians at the time, not least Stephen Langton. The question of what was lawful in the public realm remained a topic of much debate among even the most conservative theologians. How far should Christians be 'subject to the governing authorities'? Clearly a temporal ruler could not compel a Christian to renounce their allegiance to Christ.

THOUGHT EXPERIMENTS

How far then, for example, should Christians obey a ruler who commanded that which ran contrary to the will of God in other areas of political life? Theologians played a number of thought experiments, as we might now call them. How exactly, they asked, should a Christian respond to someone unjustly condemned to die by the king? How should a Christian respond to an unjust declaration of war by the king (a question that never seems to lose its relevance)?

Stephen Langton had been the leading biblical scholar at the University of Paris before he was elevated to Canterbury. While there he had used the book of Deuteronomy to expound his belief in the need for a written form of law that would set out the rightful activity of kings, and constrain their habitual excesses. The king should be obeyed, he argued, even by a Christian charged with the execution of an innocent party, but only as long as the king's sentence has been passed by a legitimate court. Ultimately, only lawful action could be right action, a view that was clearly very important in formation of Magna Carta.

CURBING TYRANTS

The second principle related to the legitimacy of action taken against a king. The idea of the security clause in the 1215 issue of the Magna Carta, which put the king's affairs under baronial scrutiny, drew indirectly on a book written by the cleric, John of Salisbury, fifty years earlier, entitled Policraticus. Policraticus is a massive, sprawling exploration of political authority, which contains among many other things, a number of highly influential reflections on what can and should be done about tyrannical rulers.

John offered an extended discussion on what is the true nature of a prince, by drawing on repeated stories of bad kings in the Old Testament, who fell under God's judgement. He even went as far as to advocate punishing tyrants. 'It is not only permitted, but it is also equitable and just to slay tyrants', he wrote at one point.

It was through such cogitations that the intellectual and theological context of the early 13th century provided fertile ground for the legitimation of direct action against a king. Such ideas created the foundation for clause 61 of Magna Carta to draw a direct link between the king's duty to follow the law of the Magna Carta, and the duty of the king's subjects to pay fealty to their monarch. Ultimately, they implied, the obedience of the people depended on the obedience of the king.

A BROADER LIBERTY

The third principle is in the famous extension of rights to 'all free men'. Clause 60 reads:

All these customs and liberties that we have granted shall be observed in our kingdom in so far as concerns our own relations with our subjects. Let all men of our kingdom, whether clergy or laymen, observe them similarly in their relations with their own men.

This extension of rights is not a simple afterthought at the end of the Charter. It is something that frames the whole of the Magna Carta, appearing right at the beginning in the first clause and, indeed, throughout the intervening clauses.

This, it is worth repeating, is no expression of inalienable, fundamental or inherent human rights. 'All free men' does not equal all men, let alone all people. The majority of peasants under the English feudal system were serfs, men and women who were bound, either through promise or inheritance, to a particular plot of land, owned by a particular lord. Although not technically slaves, neither were they free. Nevertheless, this extension of rights language to all minor landowners and tenants was highly unusual in the early 13th century and unparalleled in contemporary charters and statutes across Europe.

EGALITARIAN THINKING

This language and understanding of rights had undergone significant development in the latter half of the 12th century. The enormously influential Decretum, or Condordance of Discordant Canons, Gratian's great systematisation of theological and legal thought, contended that all persons should be treated as equal before the natural law of God. If all persons stood equally before natural law, however, and if natural law formed the basis of human law, then the unavoidable implication was that all persons should also stand equal before human law.

This egalitarian line of thinking would go on to mark a subtle shift in the way that medieval Europe thought about whom the law was intended to serve. Rather than serve the king or the state in the preservation of the 'natural' social order, the law came to be seen as an instrument of justice intended to serve the whole populace. Thus Pope Innocent III - of all people! - writing in 1204, would declare:

'It may be said that kings are to be treated differently from others. We, however, know that it is written in the divine law, 'You shall judge the great as well as the little and there shall be no difference of persons'.'

We should recognise this as rhetoric, of course, but it's not mere rhetoric. More precisely, when principles like this were heard on the lips of the most powerful people in society, especially when such principles were explicitly grounded in the holy text that lay at the basis of all social order, they took on a life of their own.

A MIXED BLESSING

Just as the Christianity's role in the actual creation of the Magna Carta via church and churchmen is unclear and chequered, so its role in the formation of the Great Charter through ideas and theology is mixed and therefore contentious. We should not imagine we can trace an obvious and incontrovertible line of intellectual descent from the Bible through Magna Carta to the Universal Declaration of Human Rights. Intellectual history doesn't work like that.

That recognised, Christianity's role in the development of the Magna Carta, particularly in cultivating the intellectual hinterland on which it drew, is significant and very important. We ignore it at the peril of amnesia and historical dishonesty, and also, perhaps, at the peril of our future legal security… for if this juxtaposition of the Christian foundations of Magna Carta with the Charter's key principled clauses tells us anything, it is surely that contingency, context and circumstance alone are rarely enough to sustain serious and demanding legal principles. It is easy to believe in and campaign for due legal process or fundamental equality when one benefits from it, but unless such commitments have deep intellectual foundations, they are liable to be uprooted and ejected as soon as they become burdensome.

One such principle, the smallest germs of which are detectable within Magna Carta, is that for there to be genuine rule of law, everyone needs to have equitable access to justice. There is little point in boasting the universal and equitable rule of law, if some people simply don't have access to that law.

A MODERN THREAT

This has not been an issue in Britain, at least since the war, when Legal Aid was established in England and Wales by the Legal Aid and Advice Act 1949. However, there are serious concerns that the current government's very significant retrenchment of the availability of legal aid, coupled with the recent rise in court fees, increasing by up to 600 per cent in some cases, will not only deter many from seeking justice, thereby effectively denying it too.

The government's own estimates were that there would be around 600,000 fewer cases coming to court on account of the cuts, and given that the cuts to legal aid were especially acute in areas of housing, debt, immigration, and welfare, one doesn't have to think hard about which people this will most affect.

One mustn't exaggerate. The legal aid budget did need to come down and legal aid provision is still available in some cases. However, concerns for the future of equal justice for all are not just scaremongering, and when some claim that the recent cuts have put in jeopardy Magna Carta's famous clause 40 - 'To no one will we sell, to no one deny or delay right or justice' - there is good reason to believe this is more than simple rhetoric. Magna Carta, at the venerable age of 800, is still relevant, as are its foundations.

For further reading on Magna Carta, see The Church and the Charter: the forgotten roots of Magna Carta. For further reading on legal aid cuts and access to justice see 'Speaking Up' - Defending and Delivering Access to Justice Today by Andrew Caplen and David McIlroy. Both are available from www.theosthinktank.co.uk