Recovering the Libertarian Tradition of Magna Carta

Grabado de la firma de la Magna Carta, que está cumpliendo 800 años en 2015 (Historic UK)
Magna Carta, which turns 800 in 2015, is more than a peace treaty between a desperate monarch and his rebellious barons. (Historic UK)

EspañolBy Joaquín Rodríguez

There are some misguided beliefs about history that prevent us from seeing the course of events that led to modern constitutional democracies, and the protection of our individual liberties against overreaching power.

We usually think this freedom starts in the modern era, with universal suffrage, national independence, or popular revolution. However, historical events are less democratic and idealistic than many wish them to be. Instead, democratic rights were acquired the hard way: an 800-year slog of trial and error, accident and design, by those that came before us.

The year 2015 marks eight centuries since the signing of a landmark document in this process of attrition: Magna Carta, or the Great Charter. It is often claimed that Magna Carta was just an ineffective peace treaty signed between rebel barons and King John of England.

So wherein lies its importance? French political economist Bertrand de Jouvenel said that “despite [being] nothing more than a capitulation of the king to private interests, it employs principles of law and freedom valid for all times.”

This document truly is the predecessor of constitutionalism because it lays down the substantive arguments that would become established in future centuries: the protection of liberties and the limitation of the ruler’s power.

Magna Carta implemented the long-standing doctrine of due process, still valid today, that taxation is only legitimate with representation (a founding principle for the US Declaration of Independence), the protection of private property, and even the separation of church and state.

It is also routinely claimed that Magna Carta guaranteed only a few freedoms for barons and noblemen, and therefore it only served “class” interests. By contrast, however, while revolutionary events unfolding in mainland Europe over the following centuries stemmed from true popular demands, they gave way to tyranny and strengthened power — in England, the story was very different.

De Jouvenel had this to say about the English nobility: “the class of free property owners, the yeomen, feel like small aristocrats that have in common with the great lords some common liberties.” Historically, like it or not, freedom has advanced by expanding privileges rather than by declarations of equality rooted in popular will.

It has also been claimed that the traditions codified by Magna Carta correspond only to Anglo-Saxon countries, alien to Latin America’s cultural heritage. But truth is that our legal tradition has compatible precedents that even predate the document.

In Medieval Spain, a well-defined body of political rights emerged to counter the rapacity of petty local rulers and warlords. In the words of Isidore of Seville, who lived and wrote in the sixth and early seventh century, we can already find one of the first examples of restraint on power: “you will be King if you behave well, but if you do not, you will not be.” By good behavior, the Visigothic nobles meant abiding to natural law and respecting individual freedoms.

Later this dictum evolved to the chant sung during every enthronement of Aragonese monarchs from the late 12th century: “We, of whom everyone is equal to you but together are more than you, make you King if you respect our privileges and enforce them. If not, we do not make you King.” These privileges were liberties in turn granted to conquered peoples in documents from the ninth century A.D. onwards.

With these parallel processes in mind, we can better appreciate the lessons we might draw when, on June 15, Magna Carta turns 800 years old. It’s not only historical accuracy at stake.

In the present day, we’ve been led to believe that a Constitution is anything passed by a democratic assembly. But a true constitution worthy of the name is one enacted against unbridled power and in favor of liberties.

These liberties are privileges which have gradually been expanded to more and more people: just as a document written in island kingdom on the edge of Europe eight centuries ago inspired a democratic tradition which has since swept the New World.

Joaquín Rodríguez is a law student at University of Chile, Santiago, and an analyst at Acton Circle.

Translated by Daniel Duarte. Edited by Laurie Blair.

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