In one sense the Magna Carta was an attempt to restrain the powerful nobles of the period who were bringing ruin on the countryside through war and high-handed behavior. “First drafted by the Archbishop of Canterbury to make peace between the unpopular King and a group of rebel barons, it promised the protection of church rights, protection for the barons from illegal imprisonment, access to swift justice, and limitations on feudal payments to the Crown, to be implemented through a council of 25 barons.”
As an instrument it didn’t work, at least not until history had found a winner. “Neither side stood behind their commitments, and the charter was annulled by Pope Innocent III, leading to the First Barons’ War.” But after the English Civil War the Charter was resurrected as political myth and many of its ideas became incorporated into the US Constitution, the most important of which are that the most basic laws are restraints upon the powerful in order to keep them out of mischief.
More recently the tragic experience of the First and Second World Wars renewed interest in the concept of restraining nations through international law in order to avoid such mischief again. The huge human cost of 20th century conflicts made it apparent that world leaders were apt to get themselves into trouble unless they were bound to a certain code of behavior. To a certain extent “international law”, like the Magna Carta, is more of a political myth then enforceable statute, but it sort of, kind of worked for as long as the international system’s most powerful members clamped down on the misbehaving countries within the international system.
International law has emerged from an effort to deal with conflict among states, since rules provide order and help to mitigate destructive conflict. It is developed in a number of ways. …
Perhaps the first question to ask is whether in fact international law is law at all. The primary distinction between domestic and international law is that the latter often lacks an enforcement mechanism. There is no government to enforce the law, as there is in domestic situations. ….
Despite all of this, international law is often followed. This can be attributed in part to Great Power backing, but also much of international law is based on customary practice. International law may be enforced by states taking unilateral action if it is in their interest or through multilateral measures where sufficient consensus exists. Reciprocity can play a role, as benefits in other areas may be gained from following laws. In addition to ad hoc efforts to enforce international laws, a number of formal courts have been established for that purpose.
But the current elites forgot that the post-War institutions were meant to restrain them, not to exalt them and we’re in trouble again.
Despite the centuries that divide them, what we think of as international law resembles the Magna Carta in that both attempt to create a law above kings. The key concept behind the charter is that the King must be restrained. “He is above (ie. not bound by) only positive law, that is, laws made by humans. [But] the fact that the sovereign must obey divine and natural law imposes ethical constraints on him.” The analogous concept in the 20th century world was that state power must have limits. Rights are about limits. In particular, limits on the king.
But just as the Magna Carta and its outworkings failed to contain the turmoil of their age, we now face the possibility that the post World War 2 institutions are breaking down and cannot now contain the conflicts of the 21st. In that case one of the first casualties will be the prestige of elites. Like the Barons and Kings of ancient England, a widespread catastrophe will portray them as dangers to the public; people who have to be bottled up before they can do it again.
Recently a speaker at Davos made minor news when he said, “I know hedge fund managers all over the world who are buying airstrips and farms in places like New Zealand because they think they need a getaway.” They know the storm is coming. And in a diffuse sort of way, so does everyone else. Of course the world is a pretty small place today, and it is doubtful if even New Zealand will be far enough to escape retribution.
What is far more likely is that popular attempts will be made to reduce the power and influence of institutions which are believed to have been responsible for the hypothetical catastrophe. The elites cannot escape. There will be attempts to restrain them. In this the great universities, newspapers of record and social elites, perhaps even the institution of the presidency, may fare poorly. But none of these efforts — such as might be proposed by Constitutional amendment for example — will really succeed until other institutions have risen to take their place.
What these successor institutions or arrangements might be is still unclear. In all likelihood they will be led on by new forces representing livelihood and creativity that did not exist in the 20th century. They will be the industries, affinity groups or possibilities that will find the posturings of the Clintons and the mayhem of ISIS equally tedious and a drag on what they perceive to be their lawful occasions. Ultimately the current elite will be judged “bad for business” by the rising powers, though what business that is exactly remains to be seen.
These rising institutions are most probably going to play the role once performed by the Archbishop of Canturbury when he drafted the Magna Carta, and lead the effort to restrain the modern Barons and the Kings from conducting their destructive and high-handed activities. We like to think of the great charter as the foundation document of liberty. But in fact, it was aspirational at best. The true Magna Carta is much older. It is unwritten, unless that word can refer to things that inscribed in the hearts of men.
Humanity has a tremendously practical streak about it which will tolerate ideology and radical fanaticism but only so far. “Divine and natural law”, if it exists, expresses itself in the ordinary life of the world, where people need to eat, work, have children and dream. It lies dormant in the background. Potentates can seemingly trample upon ordinary life up to a point, after which natural law rises up, seemingly out of nowhere, sets them straight. “For life,” as Michael Crichton once put it, “finds a way.” The Magna Carta in every age is nothing but the riot act read by ordinary people to their kings.
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