Why Magna Carta should still be our constitution
The distinctive thing about Magna Carta is that it is a constitution owned by society rather than the state.
That is, the meaning of Magna Carta is not stamped in official parchment and interpreted by the courts, who then say, you have this right or you don’t. Rather, since the seventeenth century Magna Carta has been something for people to pick up and wield to their own purposes, against state authority. In the Civil War a person being arrested by the king’s agents would carry or read aloud from the charter, as if the document in itself had the power to ward off illegitimate authority. Magna Carta provided a point of authority outside the state from which to appeal.
Magna Carta became a modern constitution when the feudal rights and duties described in the text had long since dissolved: when there was no longer scutage, castle guard, reliefs upon the knighting of your eldest son or inheriting an estate. In the thirteenth century, Magna Carta was a precise legal document: the text stated exactly what was owed by the various categories of vassals to their lords. With the dissolving of these feudal relations, the clauses that affirmed the principle of limited power in the application of feudal law took on the broader significance of the protection of the citizen against state authority.
Now, Magna Carta played the role not so much of a legal document as an allegory. The allegory of Magna Carta is quite different to that of other constitutions and accounts of the founding of states, such as a founder-hero giving the people good laws, or a group of citizens sitting down and agreeing to form a state on certain terms. Magna Carta was a deal extracted, with the barons and knights camped as an occupying army and the king escaping every night to sleep in safety elsewhere. State authority was forced to agree terms and limit itself.
The rationality of any claim invoking Magna Carta lay not in legal reasoning, but the social legitimacy of the claim. The question was not whether the text could actually be proven to have x or y reasoning, or whether learned judges or antiquarians found this to be so. The force of a claim invoking Magna Carta lay in the individual’s certainty and assertion of their rights, and in the crowds following behind in support.
This is why Civil War rebel John Lilburne quoted Magna Carta first against the king, then later against parliament; why it could be used by both the suffragettes and colonies demanding independence. The meaning of the text was grounded in the subjectivity of civil society: it was civil society that provided the content for the legal form.
It is for this reason that Magna Carta has now vanished so completely from social and political life. While the constitutions of France or the USA continue to have a juridical-administrative life, and structure fundamental aspects of social life, Magna Carta has vanished without trace. It is no longer quoted or invoked.
Magna Carta has disappeared because civil society has ceased to defend itself against the state. There is no longer that sense of tension between state authorities and citizens; there is no longer a principled separation of domains, or the notion that the use of coercion is an incursion on a prior realm of freedom, and must be subject to very strict conditions.
Our new constitution – the Human Rights Act – has emerged as a reflection of this predicament. This is the antithesis of Magna Carta: in its origins it is not the assertion of society against the state, but the pure legalism of an act of international diplomacy.
The Human Rights Act is a statement of rights which seems to come entirely from without, from elsewhere. Nobody thinks of themselves as having a ‘right to life’ or ‘right to a family life’. The language is odd, foreign, not because it is not British but because it is abstracted from the categories and relations of social life, the points of actual tension between individuals and the state. When you read a human rights judgement it feels as if you have never experienced this thing that is being spoken about.
The fact that rights are now conceived largely in terms of this document shows that the question of the limits on state power is now decided entirely within the terms of the state. The question of the division of the domains of state and society occurs entirely within the formal-legal sphere, as with the negotiation between government departments. Those who wish to challenge a measure must do so on these terms and in this language.
Bringing a case under the Human Rights Act is rather like going to see an oracle: you are not asserting a right but going on bended knee, to ask whether you do indeed have this right. Has one of the articles been infringed? The judgement reads like an occult revelation, as something secret revealed. The QC or judge has gone off to consult the sacred texts and they have found that, yes, rights have been infringed, or no, they have not.
Whether they rule in your favour or not, the action has confirmed your subject status. The ‘rights’ being given in a Human Rights case victory are not something claimed, in one’s own voice, but rather are a revealed gift. The judge may say, yes, this police search was an infringement of your ‘right to privacy’, but this judgement is not a concrete recognition of the private domain of your home; your freedom is given back to you as something else.
With Magna Carta, a legal document became the allegory for civil society. With the Human Rights Act, civil society becomes the allegory of a legal document: society’s own autonomy, its own sphere, is sold back to it in an estranged, foreign form. The question of the legitimate domain of state power is now owned entirely by the state alone.
This is why people’s rights can be violated, without their ‘human rights’ being touched. A mother who had her child forcibly adopted is found to not have had her ‘right to a family life’ infringed; the Scottish government’s appointing of a ‘state parent’ for every child is not, apparently, an infringement of their ‘right to privacy’; buskers’ right to ‘free expression’ is not affected by the requirement that they buy a licence from the council before playing in the streets.
At the same time, human rights are commonly seen as a means to defend the undeserving and dubious: reflected in stories that a criminal claimed to have a ‘human right’ to KFC, or a prisoner to hard-core pornography.
It is notable that the invoking of ‘human rights’ tends to have the opposite effect to that of invoking Magna Carta in the past: rather than endowing the claim with authority, it seems to delegitimise it. If someone mentions human rights people tend to see it as an effete and irrelevant claim. If a person says, ‘an infringement of my human rights’, people groan; they immediately lose sympathy. Those seeking to use the Human Rights Act have to spend a lot of time defending it from negative public perceptions. It is unusual for bills of rights to have to be defended against the public.
In the period ahead, what is needed is not so much a new code, or more legal cases, but a development of the conflicts that are presenting themselves between social life and the state. Every skirmish between civil society and the state – whether it is buskers defending their right to play in public space, or skateboarders their rights to skate in a park – does something to re-establish the autonomy of the realms, and the principle of limited power. If we have a document in our hands then let it be Magna Carta.