Bryan Caplan  

Magna Carta Club, Part 1

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Magna Carta Club Update... Finally, Some Good News...
The chief goal of the Magna Carta club is to race Buchanan's "veil of ignorance" view of constitutions against my "lock-in political advantage" view.  I don't deny that Buchanan's view has some real-world relevance, but I doubt it's significant.  Don't forget: For Buchanan, unlike say Rawls, the veil of ignorance isn't a hypothetical construct.  It's supposed to describe our actual situation when we engage in constitutional politics.

Now on to the Magna Carta.

Preamble.  The opening statement comes close to invoking Buchanan's unanimity rule.  The Magna Carta allegedly benefits the king, his ancestors (?!), his heirs, God, the Church, and the whole realm:
Know that, having regard to God and for the salvation of our soul, and those of all our ancestors and heirs, and unto the honor of God and the advancement of his holy Church and for the rectifying of our realm, we have granted as underwritten...
Score one for Buchanan.

Clause 1.  The first clause primarily confirms the rights of the Church, including the Church's (and ultimately the Pope's) control over ecclesiastical appointments. 

In my notes on constitutions, I look at constitutional provisions and ask, "Cui bono ex ante?"  Who reasonably expects to gain?  On Buchanan's view, the answer should be, "everyone" or "almost everyone."  But the only clear beneficiary here is the Church, and especially the Pope.  You might argue that some other parties gain, but "everyone" or "almost everyone"?

Admittedly, Clause 1 ends on a more Buchanan-friendly note, granting...
...to all freemen of our kingdom, for us and our heirs forever, all the underwritten liberties, to be had and held by them and their heirs, of us and our heirs forever.
Since it doesn't state what these "liberties" are, though, I'll suspend judgment for now.

Clause 2. This limits death taxes on the heirs of earls, barons, and knights.  Heirs of earls, barons, and knights clearly gain.  If almost everyone were an earl, baron, or knight, Buchanan would have a point...

Clause 3. This forbids death taxes on underage heirs of earls, barons, and knights.  Buchanan could argue that this is implicit insurance.  No one knows ex ante whether they will die with an underage heir, and everyone understands that underage heirs need a little extra help.  Don't forget, though, this implicit insurance is specifically tailored to benefit earls, barons, and knights.

Clauses 4-5. This clause tries to protect underage heirs from corrupt guardians.  If it weren't limited to earls, barons, and knights, I can actually see Buchanan's veil of ignorance story here.  If you could protect your underage heirs from corrupt guardians by giving up your chance to be a corrupt guardian, who wouldn't?  Seems like a fair trade if both situations occur randomly.  However, secondary sources indicate that there was a foreseeable beneficiary of corrupt guardianship: the king himself, who was usually complicit.

Clause 6. This clause says that heirs shall be married without "disparagement," which at the time meant to "match unequally; to degrade or dishonor by marrying one of inferior rank."  The point is to prevent the king from rewarding his lowly friends with favorable marriages.  As this source explains, "Often the King would assent to marriages, but would often demand a high sum from the suitor or the ward in order to let the marriage proceed."

Clauses 7-8.  These clauses protects widows' inheritances, and right not to remarry.  (If she wants to remarry, she still needs the permission of higher-ups).  Again, the background is that the king was usurping inheritances, and forcing unfavorable marriages on widows.  The point is to help widows and their families at the expense of the king.

Clause 9.  This sets out complicated limitations on debt-collection.   The background seems to be that the king was using minor debts as a pretext for major asset seizures.

Clause 10.  If you die in debt to the Jews, and your heir is underage, he doesn't have to repay the interest.  The same holds "
if the debt fall into our [the king's] hands."  The intention of this provision is apparently to take from Jews and give to Gentiles.  Intro econ suggests, however, that the incidence will ultimately fall largely or entirely on borrowers in the form of higher interest rates.  Buchanan might call it insurance, but there's no reason why voluntary debt contracts couldn't adopt this "interest-cancellation clause" in exchange for higher interest rates.  So ultimately this is a provision that rational actors would oppose with near-unanimity!

Overall, it's not hard to see the appeal of a Buchanan-esque reading of the Magna Carta.  The preamble doesn't invoke "the general welfare," but it comes close.  But once you look into the historical background, the Magna Carta is no different from regular legislation.   Each clause is designed to redistribute power and resources from some identifiable parties to others.  Of course, I often agree with the redistribution of power and resources from the king to e.g. widows.  Remember, however, that Buchanan doesn't like identifying "good guys" and "bad guys."  So if he wanted to defend the first ten clauses of the Magna Carta, what could he really say?

P.S. Stay tuned for clauses 11-20, a week from today.


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COMMENTS (10 to date)
John Thacker writes:
Who reasonably expects to gain? On Buchanan's view, the answer should be, "everyone" or "almost everyone."

But surely it doesn't make sense to expect this to be true of every individual clause, even fully subscribing to Buchanan's view. Individual clauses could treat X better than Y, but could be balanced by different clauses that defend Y from X.

Even more so, if the answer of who expects to gain should be "almost everyone," I would think that an answer of "everyone except for the king" would actually be fairly close to meeting that. Certainly under a "veil of ignorance" most people would not expect to be king.

Doc Merlin writes:

Actually, I can see number 10 helping society; because it prevents a parent who doesn't care about their child from levering up knowing they can just leave it to their child. Under this document, the worst state a parent can leave you in is penniless.

Jody writes:

I'll speed along the process - a Constitution defines rules of a club. As a first order approximation, those in the club benefit from the rules of the club; those outside the club are generally not given the full benefits of club membership (after all without exclusivity, there's no club) and may or may not be made worse off by the club.

In the US Constitution, women and slaves were outside of the initial club, but this was amended later. For the Magna Carta the club was the nobility and the king (heck, it was first called "The Articles of the Barons").

I think this holds well (not perfectly) for all clubs, even when we don't call the clubs "governments."

Jeremy, Alabama writes:

Born English, I have been unjustifiably proud of the Magna Carta, and its elevation to some kind of founding document. I had forgotten just how parochial it is. But the king's signature implies that he is subject to laws - maybe not the same laws - just like regular people. This is a major advance.

Now that I read it again, there seems no doubt that the stipulations are for the benefit of the authors, and not even incidentally for the benefit of all mankind. I suspect the authors would change the clauses without the least compunction if they lost more (to claims by regular people) than they gained out of the king.

Charlie writes:

It needs to be pointed out that the "veil of ignorance" and locking in interests of the ruling party are not mutually exclusive.

I think most of these clauses are what I would want if I didn't know what station in society I'd be born into. That said, obviously the mechanism is that locking in limits to the king power over the nobility is the mechanism through which that is working. Since the chance of being king is very small and the benefits to being corrupt aren't that great compared to the burdens of a corrupt king, in a veil of ignorance, we'd want weaker kings and strong nobility.

So what methods are we using to separate the two theories? Don't we have to be arguing benefits are going to the nobility above and beyond what we'd want in a veil of ignorance? It doesn't seem we've done that in any instance.

Lord writes:

I wonder if 10 is actually to prevent repudiation of debt by heirs. In the end, some of these may represent more of an informational function to designate what rules apply rather than a preference for one or another. In that way they could benefit all through a reduction in ambiguity.

Lord writes:

Note: While people can agree to most whatever they like in contracts, their ability to restrict nonsignatories, heirs in this case, to it are very limited.

Ed Hanson writes:

I fairly sure that this book club is going to be quite interesting even to those like me who are fascinated by history, but woefully short on study.

This said, I am interested in the later created and signed documents. The note at the end of the study document reads;

"This is but one of three different translations I found of the Magna Carta; it was originally done in Latin, probably by the Archbishop, Stephen Langton. It was in force for only a few months, when it was violated by the king. Just over a year later, with no resolution to the war, the king died, being succeeded by his 9-year old son, Henry III. The Charter (Carta) was reissued again, with some revisions, in 1216, 1217 and 1225. As near as I can tell, the version presented here is the one that preceeded all of the others; nearly all of it's provisions were soon superceded by other laws, and none of it is effective today."

I believe that some study should be made in the later Charters, especially were any "new" rights were undone, or additional rights created. It seems important.

Joe Marier writes:

Actually, anyone who agrees more with the Church than with the King on Church matters, benefits from the Church being able to choose its own leaders, no?

Ed Hanson writes:

Bryan wrote about clause 10, "The intention of this provision is apparently to take from Jews and give to Gentiles."

Christians at this time were forbidden by the church to charge interest on loans. Which economically meant loans were hard to come by. That important economic function, by default, fell on the Jews who were allowed to collect interest. Quite the opposite of the sentiment of Bryan, clause 10 seems to affirm the economic reality of the times that Jews could lend money with an interest rate, and collect that interest. I read it that if an heir is underage and therefore restricted from managing his own affairs, interest accumulation of a debt, but not the debt, is suspended until the heir reaches majority. And as for, should the debt "fall into our [the king's] hands" simply is confirmation that the King is a Christian and can not collect interest, again insuring that the King is subservient to Laws of Christianity,

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