The octocentennial of Magna Carta has presented an auspicious occasion for reflecting on exactly what we ought to be celebrating, if anything, about Magna Carta, an ancient document with a tenuous connection to our own time and place. Is Magna Carta the fountainhead of our most cherished rights and liberties? Or is it a document entirely of its own time—an unremarkable set of compromises between King John and a few of his rapacious barons—with next to nothing to say to us today?
In this post, I’ll describe the responses of Professor Martin Krygier, one of the more penetrating writers on the relationship of law and tradition, in his new article, Magna Carta and the Rule of Law Tradition. Krygier argues that two camps seem to have dominated the discussion about Magna Carta’s importance—“votaries” and “skeptics.” The votaries, principally political dignitaries of various kinds, rhapsodize about Magna Carta as the foundation for all that is good and holy: habeas corpus, the rule of law, individual liberty, democracy, and equality before the law. The skeptics, comprised principally of legal academics and historians, perceive themselves to be in the myth-busting business (at least in this case). Magna Carta was not the first document of its kind, it was soon ineffectual, it was larded with provisions that we would abhor today, it says nothing about democracy and equality, and, anyway, “do we really need the force of myth to sustain our belief in democracy?” An interesting feature of the disagreement between the votaries and skeptics is that it is not historical, but interpretive. The key issue is not what Magna Carta was, but what it means.
Krygier’s contribution is to introduce a third view of Magna Carta: the traditionalist. “Everyone,” he says, “is from somewhere,” and by this seeming truism he recalls Edward Shils’s fine phrase that “every human action and belief has a career behind it.” That other documents were also in circulation expressing some of the same principles in Magna Carta is of course true, and of course beside the point. That subsequent interpreters (Lord Coke, for example) found meaning in Magna Carta that was not found by the original thirteenth century barons is of course true, and of course does very little to sever the links between the centuries, for “[t]he interpreters too lived sometime in some place, not any time anywhere.” Coke’s arguments would not have persuaded in any time and place, because “for an argument to strike root, the soil must be receptive.” It was the antiquity of the rule of law root in Magna Carta, and its particular course of growth over centuries, that allowed Coke to make his own claims about Magna Carta, and that allows us to make ours today.
Here the special relevance of tradition to law is crucial. Lawyers speak and think within a particular idiom, and that idiom is transmitted across long periods of time. What is called “thinking like a lawyer” is in reality learning the idiom of law within a particular legal tradition. As Krygier argues that idiom is specially—perhaps uniquely—dependent upon the past:
Law is one of the most self-consciously traditional of practices, and lawyers have a distinctive preoccupation with the legal pasts. They are always mining the past for authorities they can deploy in the present; that is something engineers, for example, don’t do in the same way – their tradition has a thinner presently active past than does law—and it is characteristic of the profession. They are not expected to recommend a result simply because it would be a great idea, they recommend it because they claim it flows from the existing law, some of it—particularly in the common law—very long-existing law. That law has authority, and it also contains ideas, arguments, resources for thought. Lawyers are expected to take the legal past seriously.
All of this relates directly to the meaning of Magna Carta. That meaning is both changing and profoundly connected to the past. One of the most common mistakes about traditionalism in law (and elsewhere) is the view that it is static. But a language, or an idiom, is not static. As Alistair MacIntyre has put it, “A living tradition then is an historically extended, socially embodied argument, and an argument precisely in part about the goods which constitute that tradition. Within a tradition the pursuit of goods extends through generations, sometimes through many generations.”
The traditionalist view of Magna Carta, in Krygier’s view, can accommodate both these features of historical continuity and change in a way that neither the votary nor the skeptic can. In this way, the traditionalist view is particularly well suited to law which, unlike history, is not principally interested in establishing what happened so much as drawing “on the present-past of law to deal with present legal problems.”
Krygier’s is an elegant account and well worth reading. And yet I wonder whether the accommodation reached between historical continuity and change is a stable one, or if, in the end, one comes inevitably to predominate over the other.