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Posted on Mon 15 June 2015

MAGNA CARTA: BACKGROUND AND FOREGROUND

Bishop Michael’s Chapter from his newest book, Magna Carta Unravelled:

3.1 INTRODUCTION

In this chapter I survey the historical hinterland for the Magna Carta (because it didn’t arise out of nowhere) and also its foreground. I then explore some issues that arise for us today as a result of the situation in which we find ourselves.

3.2 THE BACKGROUND

So looking at the hinterland first, what is the background to Magna Carta? Where did it come from? One of the things that is worth noting is the way in which newly Christianised kings and kingdoms in this country (because there were several of them at first) made covenants with their subjects. They gathered them together, clergy and people, and made covenants principally about two things: freedom and order, or perhaps I should say order and then freedom as the kings were very concerned about order in their kingdoms. Freedom had two aspects to it. Freedom from certain things - for instance from unjust taxation, arbitrary arrest, or from confiscation of land, particularly expropriation of common land. There was freedom from these things for the subject and then also freedom for certain things. There was a concern (and the Bishops, if they were good Bishops, were at the forefront of promoting this) that the king should promote peace in his kingdom and between the different kingdoms. As well as safety from vandalism and attacks by people who would come and destroy property and take life, there was also a concern for the administration of justice within the kingdom - freedom for that and for fairness. Those were the emphases in those early covenants that the kings made with their subjects which I think are relevant for our subject today.

Following these early covenants, we have the work of Alfred the Great. An appreciation of his work is essential if we are going to understand the importance of Magna Carta, both in its own time and later on. Alfred was principally concerned for three things. The first was to pacify the land. We tend to forget that, apart from the Danish invasions of which he was several times a victim, there was also considerable warfare between the English kingdoms that had the effect of sapping the strength of peoples in this country. Alfred’s objective was to pacify both what was within his kingdom; his decision, for instance, not to take revenge on the Vikings so that there wasn’t continual blood feuding going on was significant here. He also sought to unify the kingdoms, laying the foundations for the first unified English kingdom. His objectives were to pacify, to unify and then, most importantly, to Christianise. Alfred’s common law was structured around the Ten Commandments, and we are aware how unfamiliar people have become with them! Nowadays we hear the Lord’s Summary of the law, but Alfred was not only very willing to hear the Ten Commandments but to structure his own law around them, and crucially together with what he called Christ’s Mercy. So where there was severity in the Law of Moses, this was softened deliberately in Alfred’s Law by an appeal to Christ, for love and mercy for those who had offended. Justice is important, but justice and compassion belong together in the Christian scheme of things. That is one of the differences between the old covenant of the Old Testament and the new covenant in Jesus’ death and resurrection.

After the conquest by William the Conqueror there was a return to a kind of royal barbarism. William’s son, known as the Red King, did not respect any kind of law at all, confiscating people’s property, taxing unjustly, enforcing a ‘law of the forest’ where the king pretended that he owned every forest in the land and that anyone who even shot a deer for dinner was liable for a capital penalty. Something had to be done and so when the Red King was killed St Anselm, the Archbishop of Canterbury, refused to crown the Red King’s successor, Henry I, until he had sworn an oath on a charter of liberties. This Charter of Liberties is in fact the immediate background to Magna Carta. Anselm was responsible for the first abolition of slavery in this country in the Council of Westminster where anyone trading in people was threatened by excommunication. So it wasn’t just Wilberforce and his allies who recognised that slavery was wrong.

3.3 THE CHURCH AND MAGNA CARTA

Thus we come to Magna Carta and the pivotal role of Stephen Langton. Langton taught at the University of Paris for a long time before he became Archbishop of Canterbury. His particular focus was in exploring when it is right to obey the ruler and when it is right to resist the ruler. Langton was also a bible commentator (that is why he divided the Bible into chapter and verses). Langton did not know how relevant his studies would become, but sometimes we don’t do we? It’s only later on we discover that what we’ve done as a student or in our research suddenly becomes a public issue. It was like that with Langton, and he relied very much on the work of another scholar John of Salisbury. Yet when he became Archbishop of Canterbury and realised the extent of John’s wrong doing, he already knew the Bible’s teachings on obedience to the ruler and that in certain circumstances there is a duty to obey God rather than men. When Langton met with the barons, his fellow bishops, and indeed merchants as well, he had rediscovered Henry I’s Charter of Liberties. When he showed the barons and the merchants this charter, they were astonished. Scholars know that Stephen himself drafted an early document that lies behind Magna Carta. The drafting of Magna Carta itself was more complex, but in this Langton was able to use the Charter of Liberties. Magna Carta had a chequered history and John did everything possible to try and destroy it. Langton held Rochester Castle for one year against the king. During this time Langton himself was suspended from his functions as Archbishop of Canterbury by the Pope who had switched sides to John. Summoned to Rome, he had to leave Rochester Castle in the hands of some of the barons. It is possible that if Langton had not held Rochester Castle at that time, John would have been able to renege on Magna Carta and that would have been the end of the story.

So Magna Carta did not come from nowhere. Many of its provisions had been in the Charter of Liberties and its background in Alfred’s Common Law, and before that in the covenants of the English Kings with their people.

3.4 THE FOREGROUND

Turning to the foreground, one of the things that I hear again and again is that nearly all the provisions of Magna Carta in law have been repealed except for four, one of them being the liberties of the English Church. However, in fact many of the provisions of Magna Carta remain in force, at least as far as their spirit is concerned. For instance, the question about no taxation without the consent of the people, Habeas Corpus, trial by jury, the principle that no one should be fined in such a way as to prevent them earning their livelihood, all of these things remain. In any case, the question for us is not so much the legal impact of Magna Carta but its moral impact. The moral and spiritual impact it had on the nation, on people’s thinking about important principles of liberty, justice, and fairness. Whatever else we may say about legality, the moral and spiritual impact of Magna Carta remains very much in place.

The foreground of course has to do not just with general influence. It had a particular influence on the Reformation as the Reformers were determined that people should be free to read God’s word for themselves. We take that freedom for granted. Recently I was in Rome and there was a large book shop selling bibles, with a quotation from Pope Francis saying “People should not just keep their bibles on their shelves or in their pockets, but read them every day.” If the Roman Catholic Church had been saying that in the sixteenth century history would have been very different. As we know, Tyndale stood out, along with many others, in his determination that people should have access to God’s word and be free to read it for themselves. Out of that comes not only the English language, as we know it, but a fresh appreciation of the liberties of the Christian person. Tyndale and his book on the obedience of a Christian man were significant. It’s a somewhat misleading title because what he was saying was yes to obedience to the authorities as far as they were not asking us to do something that God had forbidden, or were not forbidding what God had commanded.

The Bill of Rights of 1689, following the departure of James II and the arrival of William and Mary, is again a landmark and it owes everything to Magna Carta, though couched in the context and the circumstances of its own day, but widely imitated. This always says something about the importance of a document if it is emulated by other people and other places. The French Declaration of the Rights of Man (though the French Revolution was highly ambivalent), the American Revolution and the first amendments to the US Constitution (which can be seen as the American Bill of Rights) were both influenced by the Bill of Rights of 1689. Not only other documents but whole movements, for instance the movement for the abolition of the slave trade and of slavery itself, were influenced by notions of liberty in these great charters. One of the questions with which Lord Mansfield as Lord Chief Justice was faced when Granville Sharp, the great abolitionist, petitioned on behalf of a freed slave who was being taken back into slavery, was whether there was law about slavery in England. Mansfield, to his discredit, resisted saying that there was no such thing as slavery in this country. He kept giving more qualified judgments about this in other cases, but of course the fact remains there was no law for slavery because there was no such thing as lawful slavery, as Anselm recognised in 1102. The fact that English people had laws about slavery in other parts of the world is a different issue. So the abolitionists were on sure ground to start with, at least in this country. What they were against, and this is why they began their campaign against the slave trade, was the trading aspect and they were clearly able to show from the Bible why trading in slavery was wrong. For instance when 1 Timothy speaks of men stealers; well, why would you steal men if not to sell them on to somebody else?

In time, what I have called the great Evangelical Enlightenment settlement that emerged in Victorian England came about because of this commitment, both to freedom and to order. The Clapham Sect was not anarchistic. Wilberforce, if you look at his voting record, was consistently voting for bills on order, even where sometimes we might think those bills were rather repressive. They were not anarchists, they did not want disorder, but at the same time they knew that the poor in this country and the slaves abroad had been made in God’s image and could not be treated by the powerful in the way in which they were being treated; hence all the programmes such as the introduction of industrial legislation, of the ragged schools and the recovery of nursing as a noble profession. The Charity Commission at the end of the nineteenth century said that three quarters of charitable institutions had been established by evangelical philanthropy. Three quarters is quite astonishing and this Evangelical Enlightenment consensus remained in place until our own day. But now it has been unravelled and very rapidly so, even in the last fifteen years before our very eyes.

3.5 HOW MAGNA CARTA CHALLENGES US TODAY

Finally I would like to address some questions as this unravelling takes place. The first being what is the relationship between a Bill of Rights, like Magna Carta or the 1689 Bill of Rights, and democracy? In the context of the Arab Spring, I said at the time and it is still true: democracy is never enough because democracy on its own, Parliament on its own, could result simply in a tyranny of the majority or in parliamentary tyranny if you want to put it like that. We have had experience of parliamentary tyranny once before. This is why a bill of rights is needed to protect people – in particular minorities, those less powerful, or further away from Parliament - to protect them from what Parliament might do in the name of democracy. This was certainly true of the Middle East in the course of the so called Arab Spring. I should say that I don’t know if there really was an Arab Spring; that’s a matter for a different context.

I think it is true for us now that we need those fundamental protections that Magna Carta has guaranteed us; whatever people may say about polls, focus groups, democracy or the will of Parliament. This leads me to my second point which is the relationship between conscience and positive law. There has been a long tradition of recognising conscience in this country; for instance, even in times of war, people were able to claim conscientious objection to carrying arms. Although you may not be a great enthusiast for the Abortion Act of 1967, even this Act, though in a more and more limited way according to recent judgments, recognises conscience to some extent, unsatisfactory though the Act may be from our point of view. The Human Fertilisation and Embryology Act also recognise conscience. Yet suddenly now, this new so called equality legislation and the legislation about religious hatred does not recognise conscience, sometimes enough, sometimes at all. Why is that? Is there a new attitude to law? We have a legal tradition in this country going back to Blackstone which recognises the existence of a higher law; higher than simply the positive law of the land at any one time. Yet there was a challenge to Blackstone then and that was the challenge of Jeremy Bentham: “the law is the law is the law”. We cannot get beyond and behind positive law; there is no appeal to a higher power or a higher law. Again and again lawyers in government at the highest levels, when discussing the equality legislation or religious hatred legislation, have spoken to me in a way that seems to represent unreconstructed Benthamism.

So if the law is the law is the law, how is bad law to be changed? We cannot do this unless we can appeal to something that is higher and greater, and that is what Magna Carta and the Bill of Rights were doing. We will never be able to get beyond this, not the tyranny of Parliament, but the tyranny of positive law. Currently the relationship between Christianity and public policy (note that I’m saying Christianity, not Christians) is under great strain. There are many distinguished Christians involved in British politics today. We should be grateful for this, although I have to say that, with honourable exceptions of course, I have seen good Christians come into politics and end up compromised.

So the question is not just of Christians getting involved in politics, which is to be encouraged. But that is not the issue. The issue is what role the Christian faith is to play in the policies and the legislation of this country. The attempt to plead that secularism is somehow neutral has to be challenged. Secularism is not neutral; secularism is another world view just like Christianity is. The question before the people of this country is which world view are they going to take in the making of public policy and the passing of legislation? That is the question. There is no neutrality; we must move beyond this myth that secularism is neutrality, it is not. There is legislation coming again and again before Parliament that requires a spiritual and moral tradition to understand the issues, whether that legislation is about the early stages of a human person, what to do with people who are critically ill or people who have lost mental capacity, or about marriage and the family. There are innumerable matters which cannot be decided unless we acknowledge some moral and spiritual tradition to which appeal can be made, from which a start can be made.

I am not arguing for privileges for any particular church, for instance the establishment of the Church of England. Magna Carta could not have achieved what it did without the involvement of the Bishops, but establishment is a different issue. Whether a church is established or not the Christian tradition is absolutely vital for the moral and spiritual welfare of the people in terms of policy and legislation. Magna Carta is a standing testimony to the riches of this moral and spiritual tradition and there are other many examples in the course of our history, but we thank God that we have this tradition to which we can appeal, which we can invoke in times of difficulty and of opportunity. We should pray that the nation will wake up to the heritage which it has.

To read the rest of the book, and see the contributions by the other authors involved, please order a copy of Magna Carta Unravelled.

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