Tuesday, June 16, 2015

Magna Carta and the Fantasy of Legal Constraints on States

-Ryan McMaken
Magna Carta turns 800 years old today. The Great Charter is often hailed as the first event in a series of limitations on the power of government. For Americans, Marga Carta seems even more important because it is a document that was written and signed for the purpose of limiting the power of a monarch. Americans love grandiose gestures in the form of written documents such as Magna Carta and the Mayflower Compact and the Constitution of 1787, and the document is today taught to school children as a sort of proto-Bill of Rights.

And to a certain extent it is. It does, after all, state that a political ruler cannot just do whatever he wants. There are rules.

The problem, of course, is that rulers don’t have to follow those rules if they have all the guns. In other words, if the state truly enjoys a monopoly on the means of coercion, then it doesn’t really matter what the rules are. The state can simply rewrite the rules.

Fortunately, however, states rarely enjoy a total monopoly of force. As Etienne de la Boetie knew, even an unarmed populace can bring down a government by withholding consent. Few governments have the ability to kill or jail the entire population, and even fewer are willing to try.

But, the fact remains that a government that has the ability to kill all the “bad guys” also has the ability to kill all the “good guys.” And even worse, governments often cannot tell the difference.

So how about those rules we mentioned? Well, Magna Carta was an excellent first example of how the rules don’t mean much to a motivated politician such as King John.

James Bovard notes today, for example, that the ink was barely dry on Magna Carta before King John used his wealth and influence in an attempt to butcher the nobles who forced him to sign Magna Carta:
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