Bryan Caplan  

Magna Carta Club, Part 2

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Due to limited demand, I'm going to finish up the Magna Carta Club with one last post on Clauses 11-63.  Highlights:

Clause 11.  Further demagogic limits on Jewish money-lenders' rights to collect on debts.

Clause 12. Limits the tax known as "scutage"; it can only be imposed "by common counsel," or to ransom the king, knight his eldest son, or marry his eldest daughter.

Clause 13. This Buchanan-esque clause is unfortunately awfully vague:
And the city of London shall have all it ancient liberties and free customs, as well by land as by water; furthermore, we decree and grant that all other cities, boroughs, towns, and ports shall have all their liberties and free customs.
I'd need a serious historian to tell me what this even means de jure, much less de facto.

Clause 14. Spells out the "common counsel" process mentioned in Clause 12.

Clauses 17-22. Sets standards for legal proceedings, especially venue.

Clause 23. No village or individual has to build bridges, "except those who from of old were legally bound to do so."  I wonder if someone with onerous, recently-imposed bridge-building duties lobbied for this. [sarcasm]

Clauses 26-27. More rules about inheritance, including intestacy.

Clauses 28-32.  Limits the right of the king and his enforcers to take private property, including food, money, horses, wood, etc.  The king can only hold the lands of convicted felons for a year and a day; then he has to hand them over to the local lord.

Clauses 38-40. Protects rights of the accused - and specifically abjures the king's right to "sell justice."

Clause 41. This may be the most economically enlightened part of the whole document.  It protects merchants' rights to travel to and from England, except "such merchants as are of the land at war with us."  Even merchants from hostile lands are guaranteed mild treatment, or at least reciprocity:
[T]hey shall be detained, without injury to their bodies or goods, until information be received by us, or by our chief justiciar, how the merchants of our land found in the land at war with us are treated; and if our men are safe there, the others shall be safe in our land.
Clause 42. This extends merchants' protections from Clause 41 to "anyone."  Exceptions: "those imprisoned or outlawed in accordance with the law of the kingdom, and natives of any country at war with us" and "for a short period in time of war, on grounds of public policy."

Clauses 49, 58, 59. As a sign of good will, the king agrees to restore all "hostages and charters delivered to us by Englishmen." Later clauses apply to all Welsh and specifically named Scottish hostages.

Clause 50. This, the most nakedly anti-Buchanan passage, names names.  The following individuals and families are stripped of their bailiwicks: "the relations of Gerard of Athee (so that in future they shall have no bailiwick in England); namely, Engelard of Cigogne, Peter, Guy, and Andrew of Chanceaux, Guy of Cigogne, Geoffrey of Martigny with his brothers, Philip Mark with his brothers and his nephew Geoffrey, and the whole brood of the same."

Clause 51. Banishes foreign mercenaries.

Clauses 52, 53, 55-57. Restores the status quo ante bellum for people who lost their castles, lands, etc., or were subjected to unlawful fines.

Clause 54. Grants the accused a remarkable right: "No one shall be arrested or imprisoned upon the appeal of a woman, for the death of any other than her husband."  Is this the Magna Carta or The Crucible?

Clause 61. Sets up a detailed enforcement mechanism - a committee of 25 barons who can notify the king of breaches of the Magna Carta, and - if he fails to remedy the problem within forty days - legally launch a limited civil war!
[T]hose five and twenty barons shall, together with the community of the whole realm, distrain and distress us in all possible ways, namely, by seizing our castles, lands, possessions, and in any other way they can, until redress has been obtained as they deem fit, saving harmless our own person, and the persons of our queen and children; and when redress has been obtained, they shall resume their old relations towards us.
There are a few clauses where this landmark constitutional document fits Buchanan's idealized vision.  Ex ante, for example, almost everyone probably does benefit if merchants know that they can freely travel in and out of the country.  If this clause were credible, it would help solve a big time consistency problem.

Overall, though, the Magna Carta is usually an explicit effort to permanently redistribute power from the king to the nobles who just clobbered him.   This is a particularly compelling explanation for the clauses that force the king to punish some of his loyal friends and reverse earlier confiscations and fines.  The king's opponents are trying to limit the king's access to credible long-term punishments and alliances; even if he seizes your estate, we'll eventually make him give it back, and even if you're loyally on his side, we'll eventually make him throw you to the dogs.

It's possible, I'll grant, that the Magna Carta would have passed a utilitarian test.  Redistributing power from king to nobles might be better for England and the world.  But for Buchanan, that's no defense.  His contractarianism is specifically targeted against the inter-personal utility comparisons that utilitarians take for granted.   For Buchanan, a "constitution" like the Magna Carta that singles out winners and losers doesn't deserve the name.  My question: In the real world, what does?
 

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COMMENTS (7 to date)
Charlie writes:

It's still not clear if you are being fair to Buchanan's position. The few people that tried to follow along could never understand what position you were attacking. In the resources that you provided, Buchanan's claims are very modest.

For instance:

"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."

You have to show that there are broad patterns of unfair outcomes that are not broadly acceptable. Whereas, in most of your objections, it seems acceptable that the king's should become more limited. It still seems very, very nice to be king, and now nicer to be noble, why is that not fair? Couldn't they have taken a lot more power from the king than they did?

It would have been nice if you had spent some time explicating Buchanan's view.

Snorri Godhi writes:

It seems to me that the main purpose of a constitution should be to limit the powers of the State. To the extent that the King holds executive and judiciary power, a constitution should go against the interests of the King. I see no problem here (except for the clauses limiting the rights of Jews and women).

The conflict between the "veil of ignorance" theory and the "lock-in political advantage" theory arises because the chief executive at the time of Magna Carta was "locked in" by hereditary privilege. When the chief executive can be replaced by constitutional means, restricting the powers of the executive is compatible with the veil of ignorance theory.

Snorri Godhi writes:

PS: in fairness to the "lock-in" theory, I must add that the restrictions on the power of the State, in the case of Magna Carta, tend to go to the advantage of the barons. No surprise there; my point was that the barons did not gain at the expense of the people: they gained at the expense of the State. In fact, even the people gained at the expense of the State to some extent.

John Fast writes:

Everything I know about the Magna Carta I learned from 1066 And All That. And from playing Dungeons & Dragons, of course, since I had to read everything about medieval history that I could get my hands on.

Carlsson writes:

The importance of MC is not in the specifics, but in its fundamental reaffirmation of limited powers by the (nominal) sovereign. What it said was that the king could not violate custom. Thus, it became the foundation for an evolving constitution. It provided a framework -- the rule of law, based on precedence and custom. But it was never a "constitution", it was a personal contract between a lord and his sworn knights.

The king agreed to be bound by law, that was the point of the contract that he was compelled to sign. By implication, so were his vassals, in relation to their vassals. But because customs differed, evolution led to the establishment of the common law as the fundamental source of sovereignty in England. This was never part of MC, because there was at that time no common law, but it was nevertheless its most important implication, and earns it the reputation it has. A uniform formal law replaced local customs as the source of sovereignty in the nation. Now, everyone was bound by the same law.

Later, political evolution led to the common law becoming subservient to statutory law, the idea being that true sovereignty in the nation lies with the people, who express their opinions in elections and rule through representative government. That is still, in its forms, rule of law, although this would have been thought an abomination by the barons and the king who agreed on MC. That form of law is an abandonment of the notion of custom as binding on sovereignty, and thus a reversal of the fundamental idea contained in MC.

So, the question for Buchanan is this: what evolutionary practices do you want to build into your constitution? Behind the veil, how will you account for evolving notions of "rule of law" and for novel institutional frameworks changing the original meaning and application of terms and concepts? Constitutions are never static, but always evolving as they are pulled at by power mongers, idealists, and rent seekers. They may be the most stable part of our institutional framework, but they are hardly static -- which is exactly what you would expect from the known instability problems associated with collective preference aggregations in diverse societies.

Zac Gochenour writes:

Concerning clause 13, Londoners elected their own mayor and chose their own sheriffs, who collected the city's land rents (instead of bailiffs appointed by the King, who Londoners probably rightly felt would not have their interests at heart). These rights were first conferred on London by Henry I some 90 or so years before the Magna Carta. In 1155, Henry II restricted these privileges when he granted London its official charter. In 1189, Londoners got their privileges back from King John (who probably restored the privileges in order to build support for his claim to regency). London's charter made it a "commune," or incorporated town, which was a link in the feudal chain. When John did become king, he took away some of the privileges he had granted, such as the liberty to appoint their own sheriffs. In 1215, before the Magna Carta, John once again tried to incur favor by assigning privileges to London, including now the right to elect their own mayor every year (previously, mayors were elected for life). The Magna Carta avoids details, but practically confirms London's status as a corporate body with some autonomy from the king. As for other towns, one of the most cherished privileges was their right to exact tolls on travelers and merchants of rival guilds (in contradiction to clause 41, which really just limits the king's ability to tax foreign merchants.) My source for most of this is McKechnie, W. S. Magna Carta: A Commentary on the Great Charter of King John. Glasgow: Maclehouse and Sons, 1905. I think this adds quite a bit more support for Bryan's position, and it might weaken the argument that the Magna Carta would pass a utilitarian test.

Many resources on the Magna Carta point out that this clause is still, in some sense, in affect today, despite most of the charter being repealed. Also still on the books: the right of habeus corpus and the freedom of the English church. There is also some complaints about the effects of this, such as:

"Nowadays, with its Lord Mayor, its Beadles, Sheriffs and Aldermen, its separate police force and its select electorate of freemen and liverymen, the City of London is an anachronism of the worst kind. The Corporation, which runs the City like a one-party mini-state, is an unreconstructed old boys' network whose medievalist pageantry camouflages the very real power and wealth which it holds." - pp110, Rough Guide to England, 2006

I find it interesting that so much of the language of the Magna Carta focuses on "restoring" ancient rights and liberties rather than securing new ones. If you use that language, it makes it harder for people to argue that you are redistributing power unfairly.

Lord writes:

Yes, not a redistribution of power but a refusal to recognize new assertions of them.

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