Additional fine print: Telling an arbitrary ruler to fuck off can be hazardous to your health. History, however, shows failing to do so is generally more hazardous still. These are the miserable realities of human existence. Welcome to this world.
Democracy, law, the Christian Bible, and the Magna Carta
A except by the lawful judgment of his peers or by the law of the land production
The frequently repeated (and quite entirely false) claim that the ten commandments are the basis of US law is often made by that motley crew of charlatans and chauvinists so determined to perpetuate and introduce government endorsement of the Christian religion in that country. We rather more rarely see similar claims being made in Canada. As the British common law and British parliamentary system Canada inherited are both children of rather complex parentage, and most people seem at least intuitively to know this (and, probably correctly, to sense that there's something rather secular, pragmatic, and entirely of this world about these systems), it's not the kind of thing often found blowing about in the air.
But, apparently, similar (and equally false) claims do get made, now and then. The essay below is in response to an opinion piece by an editor at an Alberta daily tabloid, in which the claim was made that the Bible is the basis of British (and thus Canadian) democracy. See "Christians won't relish removal of Bibles", in the Calgary Sun, May 22, 2003 — online version now apparently unavailable.
Editor:
Interesting. So the Bible is the cornerstone of the British democratic system. And all these years I've been labouring under the impression the foundation of our laws was the Magna Carta — or, more specifically, the block thereof which confirmed and codified the people's rights under the Common Law.1
Editor, the Magna Carta (which in the 1297 Confirmatio Cartarum was explicitly made the foundation of British law, superseding all other documents) makes no reference to the Bible. It has a series of specific clauses saying what the king can and cannot do, and what are the rights of the Barons (and later, of freemen). Those clauses don't reference any earlier document (biblical or otherwise) as justifying their provisions. Since the Magna Carta is written as a contract, (and one accepted by the king effectively at the point of a sword), it doesn't need such references. It is a legally binding agreement, and stands on its own.
Though it's a widely (and often confusedly) revered document, it's actually hard to find anything particularly divine about the Magna Carta. It's a complex political treaty, born of a complex political conflict. It's probably largely chance it wound up as the first actual written codification of the evolving body of traditional rights of the king's subjects, and the limitations to his power over them. Those traditional rights are also well known to predate the charter, and, to my knowledge, also are nowhere in law explicitly linked to any justifying document. They seem to have evolved out of society, as does much law and custom, well after the Christian canon was codified, and, again, really get little support from those earlier documents. The Bible also2 has rather little to say about the right to petition for a writ of habeas corpus, nor the right to public trial, the last time I checked.
The Magna Carta does contain language saying it was written in the name of the Christian God. I find it hard to take this claim particularly seriously. Both parties involved (John and the rebel barons) were a rough and rather unsavoury lot; it's hard to imagine anyone with any pretensions to divinity being much interested in taking either side. Though I wouldn't be the least bit surprised if there was at least one quite sincere invocation of that deity's name around the time of its signing — to wit, King John saying something like "Oh God, please don't kill me, I accept your terms."
(This, yes, is a cheap shot. John gets a rough ride, and was probably less an out and out coward than an occasionally overly cautious and less than inspired general, but I digress. My apologies. It was just too easy.)
Be that as it may, the Christian Bible isn't in the Magna Carta's bibliography. Nor would the older document have been much use as a starting point for most of its provisions, as the Bible has little to say on such subjects as what sort of service the king should be able to command for Knight's fees.
The Christian Bible is, even for many of us who don't particularly believe it to be in any way divinely inspired, nor regard it as a particularly comprehensive nor admirable ethical guide, at the very least a fascinating and multifaceted document. By turns wise and beautiful, by turns barbaric, and often contradictory, and occasionally nearly entirely incoherent, it has inspired much — for good, and for ill. But it is in no sense a direct foundation to our system of government. That claim simply has no historical basis.
As to where our laws do come from: the Magna Carta was only a starting point. Now almost entirely obsolete, it can only be seen as a seed, not so much a cornerstone. The law has evolved enormously since, and scenes rather similar to the king's being forced to accept those provisions have driven that evolution. And this is a point you, editor, and all others should keep in mind before waxing poetic about any purported divine roots of democracy:
Democracy isn't about grand, eternal documents, written by gods or by men. It's often more about the point of that sword. And about street protests, riots, strikes, heated arguments in public meetings, referenda and elections. Humanity is not granted its rights by gods. Human beings, often in desperate straits, demand those rights. And what those rights are evolves with our sense of where justice lies.
That, editor, the determination of centuries of citizens who demanded better, is what makes our nation a haven to those fleeing tyranny. I say: we don't serve that legacy by holding up any ancient and now barely cohrerent text as sacred. We serve it by upholding those values — the values of all who expanded the franchise and established basic rights — values both ancient and evolved: tolerance, egalitarianism, and respect for fair play.
And yes, the Christian religion has inspired the ethos under which many of those rights were won. It has also, however, been employed as justification to hold them back3. From the divine right of kings through slavery, allegedly divinely inspired justifications have also supported injustice and tyranny.
This latter tendency survives to this day, in fundamentalist movements that seek to roll back those hard-won rights in the name of their own self-serving interpretations of that ancient and all-too malleable book, and it is this about your claim I find particularly alarming: the clear resonance between your rhetorical fiction calling that book 'foundational' and similar contemporary claims made by those patently anti-democratic movements.
So editor, let me suggest you qualify such remarks carefully in the future. I really don't think you want to encourage that lot. Whatever Christianity has had to do with the progress of democracy and human rights (both to help and to hinder their progress), that bunch, I can assure you, mean that progress no good.
Thanks, regards,
— AJ Milne, 22 October 2003, posted 11 November 2003
Footnotes
1 It is my understanding that this block, article 39, is in fact the only article of the Magna Carta still actually in force.
The history of this is a bit complicated. The original Magna Carta was in fact apparently seen by John as little more than a bargaining chip; once he got his back away from the wall, he immediately reneged on many of its provisions, as did, in fact, the rebel barons. All of this, I should note, is very much in the spirit of the conflict that gave birth to this document: it was a rather dirty little sustained insurrection, hardly the stuff of high principle.
In any case, once John died (a timely death, many have since commented, of dysentery, and one which finally settled the insurrection, and perhaps the nicest thing John ever did for England), the regents installing his successor (Henry III) re-issued the Magna Carta, chopping out many of the specific treaty items demanded by the rebel barons, but including the critical common law clause, apparently as a way of assuring all and sundry the next monarch would behave himself, toward keeping the peace. This, it should be noted, also wasn't an entirely new idea in any sense: many of the rights the Magna Carta codified were pre-existing, established, even ancient rights, and the idea of guaranteeing in writing the limits of the monarch's power wasn't entirely original at the time either.
That practice was, however, only sporadically followed down to present day. The Magna Carta, however, and, in particular, its common law clause, are viewed today as so important primarily because it was brought up in the argumentation of Sir Edward Coke, in the early 17th century.
Coke was a diligent researcher, and gifted at the law. He invoked the Magna Carta in arguing that since its proclamation, parliament was subject only to the common law, and that common law trumps royal prerogative. In 1628, parliament adopted Coke's Petition of Right, a document reinforcing the Magna Carta's due process clause, as a check against royal prerogative; it has formally been in force since.
2 The original text did not have the word 'also' here, though it was meant to. It's a critical clarification, however: though the Magna Carta does express fairly directly the right to fair trial (in clause 39, in language guaranteeing that freemen should only be detained subject to the law and at the judgement of their peers), the writ of habeas corpus, though arguably a branch of the same tree as arising from the common custom, was codified much later, in 1697 — and again, it must be noted, without any reference to any biblical precedent.
3 As one notorious example, see Thornton Stringfellow's Scriptural and Statistical Views in Favor of Slavery (see etext at http://docsouth.unc.edu/church/string/string.html) — from an era of biblical justifications for slavery.