Magna Carta will not save us

This month I have been spending a lot of time talking about something that is, in my opinion completely and utterly irrelevant and boring. I am, of course, referring to Magna Carta, a 1215 charter between a hated English King, John (1166-1216) and 25 of his most beef-prone barons. Magna Carta, as many historians, from David Carpenter to Nicholas Vincent, have pointed out was anything but revolutionary.[1] It essentially just recorded the rights and duties that kings had toward the nobility throughout the majority of Europe, but had previously been customary. Moreover, it was revoked almost immediately after it was issued by Pope Innocent III (c. 1160-1216), one of the most lawerly Popes ever, and a huge fan of getting involved in charter chat.

As David Carpenter has pointed out, Magna Carta did not simply die after it was revoked, being re-confirmed around fifty times in different guises with various clauses being snipped out, creating a kind of Magna Carta topiary. The fact that it was reconfirmed fifty times is a bit of a giveaway, however, in that it was almost totally ineffectual and largely ignored. Laws that everyone agree too? Usually don’t have to be reaffirmed dozens of times. That is the thing about stuff that is effective.

Magna Carta was also a very specific and limited document, about establishing the rights of “free men” who understood expressly as the nobility. There was no medieval concept of the rights of man or men in general being free (though there were a lot of unfree people, and ways to be unfree) and all that Magna Carta did was assure the rights of a bunch of rich guys under the king. This was common across Europe at the time, and Holy Roman Emperor Conrad II, for example, had promised his nobels in the Italian lands that he would not annex their territory “save according to the constitution of our ancestors and the judgment of their peers” in the Constitutio de feudis a few hundred years before anyone over in England, a minor kingdom without much continental importance got around to writing it down.[2]

Why, oh, why am I sitting here talking to you about a seldom enforced, non-groundbreaking, contract between one rich guy and a bunch of other rich guys, then? The answer to that is, I am very sad to inform you, that the English are once again back on their bullshit. Here in the UK a lot of people are very upset – not about the fact that we have one of the worst death tolls during COVID despite being one of the riches countries on earth. Oh no no. They are upset because since we are all busy, you know, dying of COVID and what have you, the government has indicated that it might be a good idea to close up a couple of things here and there, like pubs, restaurants, and hair-dressers. Nothing “essential” mind you, like the  four estate agents I can see outside my window with agents bevering away, or the Uni classroom that I march into along with my poor students every week so we can give each other COVID in a scholarly way. Just, you know, a few things here and there. Cuz that will sort it.

Anyway, a certain subsection of the British public has decided that closing businesses during the pandemic and paying them a (granted nowhere near as generous as it ought to be) furlough is an infringement of their “constitutional rights” and that the government cannot, in fact, shut them down.

All of this is very interesting because, pretty famously, the UK does not, in fact, have a constitution. So, it is sort of hard to infringe upon our constitutional rights or whatever. Lacking a constitution, the aggrieved have decided that the source of their right to sell someone a blowout is guaranteed to them by Magna Carta. The Facebook groups that your weird uncle is either most certainly in, or would be if you were from the UK, have been propagating the idea that if you put up a print out of Section 61 of Magna Carta (a largely procedural section which says who barons can deputise in the absence if they are called upon to convene) then you are immune to, well not COVID, but COVID closures.

Unfortunately, this disinformation has begun to have real negative consequences for the duped, as in the example of a plucky young lady who refused to close her hair salon and was fined £17,000 after she started quoting Magna Carta at the police who arrived to explain that the whole COVID shut down did indeed apply to her. There is also, of course, the real danger to these people and their customers as a result of the whole on-going pandemic thing.

All in all, the whole thing is a conspiratorial mess. But why is this so? How is it that a bunch of people got the idea that the rules for a few dead barons hundreds of years ago mean that they are allowed to open a soft play area?

The answer is a nationalist myths, and a healthy dose of Americanism.

We first see the idea of Magna Carta as some sort of text which applies to people at large during the English Civil War. A barrister, parliamentarian, sometime Sherriff of Nottingham and noted rich guy Edward Coke (1552-1634) was writing a book about Magna Carta in which he referred to it as England’s “ancient constitution”, which would have been news to medieval people who had no such concept. Anyway, in a bit of a coup for him, King Charles I (1600-1649) banned the publication of what I assume what not have been a massive snooze fest rich guy wank off book. Parliament then got involved and the House of Commons demanded that the book get published, giving Coke’s ideas a lot of free publicity.

Later, when Charles declared Martial Law after a bunch of rich landowners refused to pay for a loan he demanded so he could continue to ponce around in style, Coke’s book inspired a bunch of people to refuse to pay. According to them, Magna Carta was still in force, applied to all “Free Men” and it meant that the king couldn’t jail them when they didn’t want to pay his bills. This was probably a closer reading than they realised as this was largely a dispute between massively well connected rich dudes, which is what Magna Carta meant when it said “free men”, even if this definition had certainly extended outside of the remit of nobles to which it initially referred.

Eventually, when the American project took off and a bunch of genocidal slave owners were looking for a document to use as a model that says that they, a bunch of genocidal slave owners, had rights and literally no one else they seized on Coke’s reinterpretation of Magna Carta and applied it in the states as well. Benjamin Franklin (1706-1790) wrote in his Poor Richard’s Almanack that Americans should remember the date of Magna Carta’s signing because it established “English Liberty”, which is notably wrong in a number of cases. First of all, it had basically nothing in it that was specifically English, and nothing about “liberty” for anyone but a bunch of rich guys who were able to start a war with a king because they were rich guys.

Being as the American founding fathers never met an opportunity to be massive hypocrites with a poor grasp of history, these inconvenient facts didn’t get in the way of a weird giant nationalist circle jerk. Franklin went as far as arguing to Parliament, on behalf of the Massachusetts House of Representatives that, taxes on the American colonies “were designed to exclude us from the least Share in that Clause of Magna Charta, which has for many Centuries been the noblest Bulwark of the English Liberties, and which cannot be too often repeated. ‘No Freeman shall be taken, or imprisoned, or deprived of his Freehold or Liberties or free Customs, or be outlaw’d or exiled or any otherwise destroyed nor will we pass upon him nor condemn him but by the Judgment of his Peers or the Law of the Land.’”[3] 

Because of this super dubious history, the Magna Carta was adopted into sixteen of the state constitutions of America, and everyone from Eleanor Roosevelt to current Supreme Court Justice Kennedy has weighed in on the very definitely real importance of a document written by rich guys to rich guys in the thirteenth century. This assurance that Magna Carta was very definitively something important and indeed a sort of constitution was then picked up back on this side of the pond. I mean if a bunch of Americans were saying it was an important document that guaranteed rights, surely that is in fact what it is still doing here in the UK!

Yeah, not so much. All but about three clauses of the original Magna Carta are not on the books in the UK at all. Those that do remain are super dry and procedural and absolutely do not mean that your local pub can continue to operate because you have some sort of “right” to do so. Moreover, I would urge English people to once again consider that they are not, in fact, the entire UK, so an agreement between an English king and a bunch of English barons? Yeah not gonna fly in Scotland, or Northern Ireland, though to be fair thus far Magna Carta myth poisoning seems to be largely an English problem.

And it is a problem. I do not bring this particular historical record up just to be a pedant and a spoilsport. I bring it up because assurance that Magna Carta applies to us and is somehow “protecting the rights” of the average person in the UK prevents us from amassing the political will necessary to demand that we actually get a real honest to god constitution that would guarantee our rights. I would really like one of those! Because Magna Carta does not apply to me because I am not a baron! Also, it is largely revoked! We need to put pressure on our politicians to guarantee our rights, rather than thinking a bunch of rich dudes 800 years ago had our best intentions at heart.

Another issue that the circus surrounding misapplication of Magna Carta occludes is the fact that we are very much suffering here in the UK. After over a decade of austerity, and more decades of neo-liberalism, we have no robust safety net which looks after us when we get into financial trouble. The small business owners who are worried that their livelihoods will collapse under new COVID restrictions are indeed correct that the government furlough scheme does not go far enough, and in particular penalises freelance workers and small businesses who need our help the most during this time. We cannot get around this by putting Article 61 of Magna Carta up in a shop window, or yelling phrases from it at police when they come to shut down businesses that are operating when they ought not to be. We need to lobby for more extensive help for those who have been furloughed and organise as communities to ensure that our local businesses can survive, and we aren’t simply overtaken by a wave of corporations who can afford to ride out the pandemic.

Ensuring that people do have rights and do have enough money to live on would help to ameliorate the third issue with this whole Magna Carta nonsense – that we are in the middle of a pandemic and if you open your businesses you endanger yourself and your customers. If people had adequate access to the means for a dignified life, they would not be fighting so hard to continue to work in unsafe circumstances. If we had a better collective understanding of what our rights under a constitution are (by, say, having one) we could also argue that more needs to be done to repair the damage done to our social safety net.

There are real social problems at the heart of the still unfolding Magna Carta fiasco. Many of us here in the UK are fooling ourselves into believing that a notably bad king 800 years ago guaranteed us some form of a dignified life because many of us currently do not enjoy one. We know in our hearts that this is unacceptable, and because of the ways in which enlightenment politics work, we look to the past to show where the right to security was enacted. It has not been. Instead of looking for answers in the past, we should be working to put those rights, protections, and safety net in place. Until we have pushed the government to do so, we need to look after each other. Magna Carta will not save us, but concerted community effort might.

Let’s get to work.

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In order to locate a COVID mutual aid group in your community in the UK, start here.
For a specific community businesses mutual aid group, try here.

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[1] See, David Carpenter, Magna Carta, (London: Penguin UK, 2015), and Nicholas Vincent, Magna Carta: A Very Short Introduction (Oxford: Oxford University Press, 2012), respectively.
[2] Ludwig Weiland, ed., “Edictum de beneficiis regni Italici”, Mon. Germ. Hist., Constitutiones, I, No. 45, pp. 89–91.
[3] https://founders.archives.gov/documents/Franklin/01-17-02-0165 Accessed 25 November 2020.

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For more on nationalist myths about the medieval period, see:
On martyrdom and nationalism
On the King’s two bodies and modern myth making
On colonialism, imperialism, and ignoring medieval history
History is a discipline, not a virtue