Lord Sumption has been telling the papers that we owe our freedoms more to the French Revolution and its Declaration of Rights than to Magna Carta, the 800th anniversary of which we celebrate this month. He is wrong. But each passing day makes him more right, and that is the whole problem. A real problem for freedom, not some merely smug debating point.
Sumption may be a distinguished mediaeval historian, but he is a poor political economist, or legal scholar for that matter. He calls the Charter a ‘turgid’ document of its time, and says it has ‘nothing to do’ with our libertarian tradition.
He is right that it reads like something rather turgid and technical. It was indeed mainly a list of demands, and was never meant as a constitution. But what it demands is critical to the development of limited government and representative democracy in the centuries that followed.
Magna Carta is the re-assertion of property rights that Anglo-Saxon England enjoyed before the Norman Conquest. The limits it imposes on authority – preventing the King’s arbitrary confiscation of people’s property and freedom – occupy only three or four of its 63 clauses and are therefore easily dismissed by those who think the Charter was just a hotchpotch of ‘trade union’ demands by the aristocracy.
But those who drew up the Charter knew that these few clauses are absolutely crucial. They are there precisely to guarantee those property rights that are spelled out in the rest of the document. What good is it to have rights if they are unenforceable because the authorities can act without restraint.
From that assertion of property rights, grows parliamentary democracy. Sure, as Sumption sneers, the Charter is by no means a democratic constitution, and concerns itself only with the rights of a rich few. But it reasserted the pre-Norman tradition that the rules of taxation and justice should be based on agreement, not on the whim of monarchs. To reach agreement, you need debate. And to debate, you need some kind of representative parliament.
It also explains England’s later history as a great trading nation, and the entrepreneurial flair that abides in the Anglophone nations. The Charter guaranteed property rights, and that principle was quickly expanded from just the nobility to everyone. So people could build up capital without fear of being expropriated by kings, ministers and officials.
And the common law that was reasserted by the Charter allows people to do what they want, provided only that others are not harmed by it. Top-down Continental law, by contrast, requires you to seek official permission first. It is obvious which one is likely to encourage more innovation.
Sumption also tries to show the Charter’s irrelevance by dismissing its insistence that justice should be based on the ‘law of the land’. The assertion as worthless, he says, because the King decided what the law actually was. But the whole point was that the Charter reasserted the commonly agreed fact that the ‘law of the land’ was much older and more fundamental than King-made law. It was the common law of the Anglo-Saxons, built up, by the common people over centuries. This law had evolved and endured, despite the efforts of feudal authorities to supplant it, because it worked and because it was made by the people as they went about their everyday business. This common law was a matter for everybody, not just for the king to decide and hand down to everyone else.
We have the same issues today, with Britain’s common law tradition being swamped by top-down law in the shape of EU regulation. Here again, the Continental tradition that you need detailed regulation that says what you can do is at odds with Britain’s common law approach that you are free to act as you choose unless there is some proven and agreed reason not to.
The difference is crucial, and that is why Sumption is so horribly wrong to suggest that our libertarian tradition owes more to France than to Runnymede. Perhaps our rights and freedoms are indeed being subjected more and more to this Continental legal tradition. But this legal harmonisation is something to be mourned and feared, not celebrated.