MAGNA CARTA AND THE LAW OF NATURE

Abstract

My subject is an appropriate one for a lecture series established by Brendan F. Brown. From first to last, he was “an advocate and defender of the natural law and its school of jurisprudence.” He sparked an interest in the subject among his students, he wrote books and articles to demonstrate its value, and he compiled an historical survey of the subject that remains useful today. Coming to his scholarly maturity in the years immediately following the Second World War, Professor Brown was optimistic about the future of this subject. The leaders of Nazi Germany were being put on trial for the commission of crimes against humanity, crimes that were widely believed to be condemned by natural law. With apparent confidence, he was able to predict a revival in the recognition of natural law within modern law and jurisprudence. Not coincidentally with the subject of this Lecture, he found support for his vision of natural law’s future in the continued importance ascribed to England’s Magna Carta of 1215. Things have not worked out as Professor Brown envisioned. Natural law, which requires that all true law serve the cause of morality and the just purposes of human society, does not occupy a central place in current jurisprudence, and the Magna Carta itself is not recognized as having served as an effective guarantee of natural human rights. In fact, within today’s academy, most of the Charter’s exalted reputation is said to rest on mistake and myth. In a recent number of The Green Bag, for example, federal judge, prolific writer, and inveterate iconoclast, Richard Posner, scolds writers and speakers who have anything good to say about Magna Carta. He takes them to task for praising the Charter “without even understanding it—they think it guaranteed the ancient liberties of the English, whereas in fact it guaranteed just the rights of barons, and in any event was soon annulled, later restored, and eventually demoted to the purely symbolic.” In this confident statement, Judge Posner echoed a view widely shared among today’s scholars. He would, therefore, have ample company in regarding the approach to Magna Carta presented in this Lecture with suspicion, perhaps even contempt. The Lecture explores possible connections between the Charter and the currents of legal thought that prevailed when it was written. It deals, not with twentieth-century methods of social science research, but with the law of nature. It asks whether the enactment of England’s Magna Carta was connected with principles of justice found within the law of nature as it was understood in 1215 and as it continued to be understood in Western law for many centuries. In other words, it asks whether Professor Brown’s conclusions about the Great Charter and natural law were warranted by the relevant evidence. I believe they were indeed warranted by an objective reading of the evidence, but I concede at the outset that my Lecture will offer only an exploration of the subject, not a proof of the veracity of Professor Brown’s approach. Certainty on this topic is more than anyone can claim. We know too little about either the identity and intentions of the drafters of the document, or the circumstances under which it was written, to prove anything about their motivation conclusively. The available evidence simply does not admit of proof. The best we can do is to draw reasonable inferences from the evidence that does exist, and most of that is found within the clauses of the Charter itself. Although this approach swims against the tide of recent scholarship, there are sound reasons for exploring this subject. The dangers of anachronism have always been present in seeking to do justice to ways of thought that have passed out of common use—and particularly so in interpreting a document that has played the vital role in the law and politics of later centuries that Magna Carta has. As Professor Charles Donahue put it, “If we do not think about it, we are likely to assume that the men and women of the later Middle Ages shared our ideas.”9 Sometimes they did. Sometimes they did not. We need to be alert to this danger; it has happened more than once in interpreting the clauses of the Great Charter. A sensible way to avert this possibility is to start with a perspective we know was current in the learned world at the time when Magna Carta was written, rather than to start with our own.