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How the Magna Carta Became a Minor Carta

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Posted on Jul 24, 2012
maveric2003 (CC BY 2.0)

Text from the Magna Carta.

By Noam Chomsky, TomDispatch

This piece first appeared at TomDispatch. Read Tom Engelhardt’s introduction here.

Down the road only a few generations, the millennium of Magna Carta,  one of the great events in the establishment of civil and human rights,  will arrive.  Whether it will be celebrated, mourned, or ignored is not at all clear.

That should be a matter of serious immediate concern.  What we do right now, or fail to do, will determine what kind of world will greet that event.  It is not an attractive prospect if present tendencies persist—not least, because the Great Charter is being shredded before our eyes.

The first scholarly edition of Magna Carta was published by the eminent jurist William Blackstone.  It was not an easy task.  There was no good text available.  As he wrote, “the body of the charter has been unfortunately gnawn by rats”—a comment that carries grim symbolism today, as we take up the task the rats left unfinished.

Blackstone’s edition actually includes two charters.  It was entitled The Great Charter and the Charter of the Forest.   The first, the Charter of Liberties, is widely recognized to be the foundation of the fundamental rights of the English-speaking peoples— or as Winston Churchill put it more expansively, “the charter of every self-respecting man at any time in any land.” Churchill was referring specifically to the reaffirmation of the Charter by Parliament in the Petition of Right, imploring King Charles to recognize that the law is sovereign, not the King.  Charles agreed briefly, but soon violated his pledge, setting the stage for the murderous Civil War.

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After a bitter conflict between King and Parliament, the power of royalty in the person of Charles II was restored.  In defeat, Magna Carta was not forgotten.  One of the leaders of Parliament, Henry Vane, was beheaded.  On the scaffold, he tried to read a speech denouncing the sentence as a violation of Magna Carta, but was drowned out by trumpets to ensure that such scandalous words would not be heard by the cheering crowds.  His major crime had been to draft a petition calling the people “the original of all just power” in civil society—not the King, not even God.  That was the position that had been strongly advocated by Roger Williams, the founder of the first free society in what is now the state of Rhode Island.  His heretical views influenced Milton and Locke, though Williams went much farther, founding the modern doctrine of separation of church and state, still much contested even in the liberal democracies.

As often is the case, apparent defeat nevertheless carried the struggle for freedom and rights forward.  Shortly after Vane’s execution, King Charles granted a Royal Charter to the Rhode Island plantations, declaring that “the form of government is Democratical,” and furthermore that the government could affirm freedom of conscience for Papists, atheists, Jews, Turks—even Quakers, one of the most feared and brutalized of the many sects that were appearing in those turbulent days.  All of this was astonishing in the climate of the times. 

A few years later, the Charter of Liberties was enriched by the Habeas Corpus Act of 1679, formally entitled “an Act for the better securing the liberty of the subject, and for prevention of imprisonment beyond the seas.” The U.S. Constitution, borrowing from English common law, affirms that “the writ of habeas corpus shall not be suspended” except in case of rebellion or invasion.  In a unanimous decision, the U.S. Supreme Court held that the rights guaranteed by this Act were “[c]onsidered by the Founders [of the American Republic] as the highest safeguard of liberty.” All of these words should resonate today.

The Second Charter and the Commons

The significance of the companion charter, the Charter of the Forest, is no less profound and perhaps even more pertinent today—as explored in depth by Peter Linebaugh in his richly documented and stimulating history of Magna Carta and its later trajectory.  The Charter of the Forest demanded protection of the commons from external power.  The commons were the source of sustenance for the general population: their fuel, their food, their construction materials, whatever was essential for life.  The forest was no primitive wilderness.  It had been carefully developed over generations, maintained in common, its riches available to all, and preserved for future generations—practices found today primarily in traditional societies that are under threat throughout the world.

The Charter of the Forest imposed limits to privatization.  The Robin Hood myths capture the essence of its concerns (and it is not too surprising that the popular TV series of the 1950s, “The Adventures of Robin Hood,” was written anonymously by Hollywood screenwriters blacklisted for leftist convictions).  By the seventeenth century, however, this Charter had fallen victim to the rise of the commodity economy and capitalist practice and morality.  

With the commons no longer protected for cooperative nurturing and use, the rights of the common people were restricted to what could not be privatized, a category that continues to shrink to virtual invisibility.  In Bolivia, the attempt to privatize water was, in the end, beaten back by an uprising that brought the indigenous majority to power for the first time in history.  The World Bank has just ruled that the mining multinational Pacific Rim can proceed with a case against El Salvador for trying to preserve lands and communities from highly destructive gold mining.  Environmental constraints threaten to deprive the company of future profits, a crime that can be punished under the rules of the investor-rights regime mislabeled as “free trade.” And this is only a tiny sample of struggles underway over much of the world, some involving extreme violence, as in the Eastern Congo, where millions have been killed in recent years to ensure an ample supply of minerals for cell phones and other uses, and of course ample profits.

The rise of capitalist practice and morality brought with it a radical revision of how the commons are treated, and also of how they are conceived.  The prevailing view today is captured by Garrett Hardin’s influential argument that “freedom in a commons brings ruin to us all,” the famous “tragedy of the commons”: what is not owned will be destroyed by individual avarice. 

An international counterpart was the concept of terra nullius, employed to justify the expulsion of indigenous populations in the settler-colonial societies of the Anglosphere, or their “extermination,” as the founding fathers of the American Republic described what they were doing, sometimes with remorse, after the fact.  According to this useful doctrine, the Indians had no property rights since they were just wanderers in an untamed wilderness.  And the hard-working colonists could create value where there was none by turning that same wilderness to commercial use. 

In reality, the colonists knew better and there were elaborate procedures of purchase and ratification by crown and parliament, later annulled by force when the evil creatures resisted extermination.  The doctrine is often attributed to John Locke, but that is dubious.  As a colonial administrator, he understood what was happening, and there is no basis for the attribution in his writings, as contemporary scholarship has shown convincingly, notably the work of the Australian scholar Paul Corcoran.  (It was in Australia, in fact, that the doctrine has been most brutally employed.)

The grim forecasts of the tragedy of the commons are not without challenge.  The late Elinor Olstrom won the Nobel Prize in economics in 2009 for her work showing the superiority of user-managed fish stocks, pastures, woods, lakes, and groundwater basins.  But the conventional doctrine has force if we accept its unstated premise: that humans are blindly driven by what American workers, at the dawn of the industrial revolution, bitterly called “the New Spirit of the Age, Gain Wealth forgetting all but Self.”

Like peasants and workers in England before them, American workers denounced this New Spirit, which was being imposed upon them, regarding it as demeaning and destructive, an assault on the very nature of free men and women.  And I stress women; among those most active and vocal in condemning the destruction of the rights and dignity of free people by the capitalist industrial system were the “factory girls,” young women from the farms.  They, too, were driven into the regime of supervised and controlled wage labor, which was regarded at the time as different from chattel slavery only in that it was temporary.  That stand was considered so natural that it became a slogan of the Republican Party, and a banner under which northern workers carried arms during the American Civil War.


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