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Magna Carta Club: Reply to Some Comments

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I wrote:
Who reasonably expects to gain? On Buchanan's view, the answer should be, "everyone" or "almost everyone."
John Thacker responds:

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.

You could interpret Buchanan in this way, but on my reading he'd strongly resist your approach.  Constitutional horse-trading between people who want X and others who want Y would seem too much like ordinary legislative bargaining for his taste.  If Buchanan's veil of ignorance view is right, there's no need for horse-trading, because everyone or almost everyone reasonably expects to gain from each provision.  Thacker continues:

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.

Yes, but lots of people might expect to be part of the "pro-king faction."  And in any case, Buchanan's veil of ignorance isn't Rawls'.  If you're already the king, Buchanan doesn't tell you to forget your position.  He just says that constitutions will (should?) set rules under which everyone, including the king, can reasonably expect to benefit.

Charlie writes:

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.

Again, this conflates Buchanan's veil of ignorance with that of philosophers like Rawls.  Buchanan doesn't say, "Pretend you don't know your station in society, then choose rules that best protect your interests."  He says, "Given everything you know, choose rules that you expect to best protect your interests, even if the rules potentially work against you."  His standard example is accident liability rules.  While you know a lot about yourself, you don't know whether you're going to be a perpetrator or a victim of an accident.  Almost everyone else is similarly unsure about what accidents are in their future.  Due to this non-hypothetical ignorance, Buchanan thinks it's feasible to reach near-unanimous agreement on accident liability rules.

In other words, Buchanan's veil of ignorance isn't a game of "let's pretend."  It's an attempt to leverage our existing uncertainty into unanimous or near-unanimous agreement about something.

Ed Hanson writes:
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.
Even if the Jews had a legally-supported money-lending monopoly, it's still inefficient to require all debt contracts to suspend interest payments to underage heirs.  This is no different than a law saying that a car monopolist can only sell Ferraris.  The monopolist responds by charging a higher price, and consumers willing to buy the lower-quality product for a lower monopoly price are out of luck.  In any case, as long as Jewish money-lenders still competed with each other, the monopoly model wouldn't have been relevant.  Clause 10 still looks like classic anti-Semitic demagoguery to me.

P.S. If you're having trouble deciphering the archaic language of the Magna Carta (I know I am), this glossary is very helpful.

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COMMENTS (4 to date)
John Thacker writes:

I have to say I don't know enough Buchanan to be sure of what he means, but if he means exactly what you say he does, then he's definitely going too far.

Ed Hanson writes:

Bryan wrote in part;

"Clause 10 still looks like classic anti-Semitic demagoguery to me."

Did anti-Semitic demagoguery exist in the year 1216, certainly. Is this a "classic" example of it, I am less sure. A clause that said, "at death, all debts to Jews become null," certainly would be "classic", but the existing clause actually verified the legitimacy of debt through inheritance.

An exception was carved out for under-age inheritor, not an exception of the debt, but just the interest charge until age 21. I assume that problems of under-age inheritance were known and considered grave, and the trade off of improved terms of inheritance against the change of payment flow was considered to be favorable. I also note that this clause seems to be one that disappeared by the 1225 Charter, so possible experience proved the trade off was not as favorable as originally thought.

One last thought. Bryan wrote, "it's still inefficient to require all debt contracts to suspend interest payments to underage heirs." This was the year 1216, almost 500 years before Adam Smith and the creation of the school of economics. The Magna Carta was the first baby steps of the rediscovery of individual freedom. It also represents the first baby steps, the trial and error changes, as a new economy begins to grow. A trial that fails is at least as important as a trial that succeeded. I find it easy to forgive such economic mistakes resulting from inexperience, but that eventually lead to greater knowledge.

Charlie writes:

Had a better comment, but don't know what happened to it.

Followed your link to try to understand Buchanan's position and found two propositions"

"The uncertainty introduced in any choice among rules or institutions serves the salutary function of making potential agreement more rather than less likely."


"To the extent that a person faced with constitutional choice remains uncertain as to what his position will be under separate choice options, he will tend to agree on arrangements that might be called "fair" in the sense that patterns of outcomes generated under such arrangements will be broadly acceptable, regardless of where the participant might be located in such outcomes."

I think we are focusing on the second one.

So Bryan, don't you have to attack the clauses as if they are not "fair" or "broadly acceptable." So you would score a point when something is unfair, but locks in power and Buchanan scores when something is fair but doesn't lock in a present power. To be honest, I am not sure how we are supposed to view those terms.

I would really appreciate a post where you discussed your reading of Buchanan's view with quotes and links, so that we could better understand it.


Carlsson writes:

I don't think it's right to look at MC as a Buchanan behind-the-veil exercise for several reasons.

One, it's a charter among many. MC is the most well known, but there are charters like it in several countries, over a few centuries. What they have in common is that they are explicit contracts btw a subset of society and a king. The purpose of the contract is to preserve established and traditional rights from royal incursion. So, MC and other charters like do not exist in a vacuum -- strike one against the originalist assumption.

Two, feudalist society was fundamentally contractual, but in layers. Free men held their rights, personal and property, granted to them by the king, and had access to the king's court for settlement of disputes. Some free men were also holders of estates, where they had tenants to whom they had transferred some of their rights, in a separate contractual arrangement, not including the king. These tenants were "unfree", meaning that they did not hold of the king and did not have access to the king's courts, but had their disputes settled in manorial courts, with local customs. So, MC does not address the rights of these tenants, only the rights of the free tenants. In a sense, MC is a charter like the federal constitution, with state constitutions being entirely separate. So MC is only a partial contract, not a complete constitution.

Three, Buchanan's veil of ignorance construct suffers from all the problems of aggregating preferences. I have never heard him face up to the problems that all collective decision making inevitably must resolve, such as unlimited domain, independence of irrelevant alternatives, and agenda manipulation, to take a few. His view seems to be that he believes it possible to conceptually imagine a situation in which it is possible to define, in broad terms, a social welfare function, upon which you can build basic constitutional values. I don't see the rationale for that at all, it would be the same as stating that there are universal values, across time and societies, that can be reflected in a final constitution for all ages and places. Certainly, MC cannot be regarded as such. Its intent was to freeze existing contractual relations for now and the foreseeable future. Its definition of rights and justice and proper procedures are entirely historical and specific to its own context.

Four, as the barons proved at Runnymede, MC reaffirmed an old idea: if the king be not bound by custom, it is the right of his duty sworn knights to rise against him. Which they did. Feudalism had, at its core, a right to revolution. The most significant result was that kings of England, unlike those on the continent, could never claim to be above the law. And the law was what custom said, not what the king thought that God told him. A later dispute over that specific issue led to Cromwell and the Revolution. And that led to the reaffirmation of the common law as the legal framework for England, and as the source for constitutional law, and all other relevant branches of private and criminal law as well. Perhaps that is the most important constitutional effect of MC: the subjugation of the king to the rule of law, i.e., custom, and the rise of the common law both as a constitutional framework and as the set of rules that ultimately came to embody the manorial laws (hence common, as opposed to several).

MC was therefore not a rational veil-of-ignorance document, but a historical contract that preserved the view that custom would control despotism. But those involved didn't see how wide-ranging its consequences would be, especially since similar charters on the Continent never had those effects. An English king could never say "l'etat, c'est moi" because of MC retaining its powers. Louis XIV could, because French charters were ineffective against a king who claimed divine authority. Hence, I view it as a fundamentally mistaken exercise to analyze MC as a veil-of-ignorance document. In reality, it's just a stepping stone in a historical evolution of constitutional arrangements, and it could easily have been lost, as its ideas were elsewhere.

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