| Magna Carta and the Declaration des Droits de l’Homme et du Citoyen
Franco-British Council Conference, Lancaster House, 11 June 2015
In July 1989, the late Margaret Thatcher, who was in Paris to participate in the celebration of the bicentennial of the French Revolution, gave an interview to Le Monde. In it, she rubbished the whole occasion as well as the historic event which it commemorated. It was a characteristic performance. The French Revolution, she declared, had not invented the idea of human rights. We, the English had done that, with Magna Carta nearly seven centuries before. The French version was simply a distortion of an ancient idea, a feast of abstract thinking concocted by vain intellectuals and born in violence and bloodshed. This version of events is in many ways a travesty. But it is a very English travesty. It embodies a characteristic feeling of English exceptionalism as well as a long-standing suspicion of abstract ideas which is authentically English.
Of course, the French Revolution did not invent the idea of human rights. The idea that there are some rights which are inherent in our humanity has its roots in the works of the stoics and of Christian writers of the middle ages. In eighteenth century Europe, it had been part of the common currency of political discourse since Locke and Diderot. Writing in the 1760s, the great English jurist Sir William Blackstone identified the right to life and limb, personal liberty and personal property as absolute rights, belonging to every individual by “the immutable laws of nature”. All the constitutional arrangements of the state, he thought, were ultimately directed to their protection. These are also of course the central ideas expressed in the preamble to the American Declaration of Independence and the second article of the Declaration des Droits de l’Homme et du Citoyen. So the concept of innate human rights did not suddenly emerge out of thin air in 1789. It was the culmination of a long historical process. Nevertheless, the Declaration is unquestionably the place where one looks for their most eloquent and complete expression. It has a simplicity and directness of language, a rhetorical force, which no other document of its kind can match.
In this and other respects, it would be difficult to find two political documents more different in tone or substance than the Declaration des Droits de l’Homme and Magna Carta. Both of them can fairly be described as assertions of rights against the power of the state. That is why we are all here. Both of them have achieved iconic status in the societies which created them and internationally, a fact which has dispensed most commentators from examining what they actually say. That is one reason why a conference dedicated to both of them is very much to be welcomed. In that spirit, I hope that I may be allowed to make some provisional remarks, if only in order to provide some food for thought and perhaps some ideas for rejection in due course.
The Declaration des Droits de l’Homme is a succinct and forceful rhetorical text with two main objects. The first is to identify certain inalienable rights of men: liberty, property, personal security and freedom from oppression. These would probably have been acknowledged as the essential human rights in any list prepared in the late eighteenth century. As I have pointed out they are very similar to the rights asserted by Blackstone and the draftsmen of the American Declaration of Independence. But the Declaration did not claim to be enacting them into law. It claimed to have rediscovered them behind the cloak of ignorance and corruption cast over them by human institutions, specifically the institutions of the French ancien regime. These rights are characterised in the preamble as natural rights. By this was meant that they are not the creations of law or of any particular political or constitutional order, but are anterior to society itself. They would have had the same rights under any political or constitutional order, because these were rights which the draftsmen conceived that men were entitled to enjoy purely by virtue of their humanity. What this meant in reality was that they were a purely intellectual construct. Their origins lay in the moral perceptions of the revolutionary generation. The second object of the Declaration is to lay down the basic constitutional principles which were ancillary to these rights, in the sense that they were necessary in order to give effect to them. In bald summary, these principles were democracy; the rule of law; and freedom of thought and expression; what Blackstone called civic rights as opposed to natural ones.
Now, where does Magna Carta fit into this scheme of things? At this point, I have a confession to make to you. I am a Magna Carta sceptic. I have no problem about the values which the charter is commonly supposed to express. But I have the utmost difficulty in finding them anywhere in the charter. There are no high-flown declarations of principle here. No truths are held to be self-evident. No rights are declared to be inalienable. No claims are made to universal validity. Medieval latinists were perfectly capable of flights of rhetoric, but there aren’t any in Magna Carta. The document is long, highly technical and rather turgid. The difference between the charter and the Declaration is more than a matter of style. Unlike the Declaration, Magna Carta was never intended to be a general statement of moral or political, let alone human rights. It was essentially a legal text, which addressed a large number of miscellaneous grievances against the way that King John and his two immediate predecessors had governed England. In particular, it sought to define the feudal obligations associated with the occupation of land, because of the way that the Angevin Kings had exploited the uncertainty about these obligations in order to raise money. Magna Carta may have been an ambitious document for its time, but it is nothing like as ambitious as the Declaration des Droits de l’Homme et du Citoyen. Mrs Thatcher’s belief that a purer concept of human rights, undistorted by French intellectualism, could be found in Magna Carta, is really very wide of the mark. It is a document for 1215, and not for all time. And it is a document for Englishmen, and not for humanity. Indeed, it is not even a document for all Englishmen but only for the small minority who were free, male and relatively rich.
The Declaration was not a constitution. But it was a statement of values which ought to underlie a constitution. By comparison, only two ideas which can properly be called constitutional can be extracted from Magna Carta. One is the idea of representation, which makes its first appearance in the original version of the Charter, sealed by King John in 1215. The 14th clause of the Charter requires the King to obtain the consent of the “common counsel of the kingdom” before levying any general taxation. The 61st provides for a council of barons to supervise the enforcement of the charter. If they had survived, these provisions might perhaps have become the germ of the Parliament that was in fact created in very different circumstances half a century later. By a Frenchman be it noted. But these clauses were struck out of the charter when it was reissued in 1216 and 1217 and they never reappeared. They do not appear in the version of 1225, which is the only text that has ever had any legal status in England. The second constitutional idea underlying Magna Carta is that the King was subject to law. This proposition, which is the foundation of the rule of law, was not, however, a new idea at the time of Magna Carta. It had been generally accepted for more than a century before 1215. The dispute between King Kohn and the barons was about what the law was. No one doubted that whatever it was, the King was subject to it.
The famous 29th clause provided that no free man should lose his liberty or his property except by judgment of a court or according to the law of the land. But that did not amount to much. The King’s warrant was a sufficient basis in law for arresting or imprisoning a man, and that remained the case until the seventeenth century. Magna Carta has never been regarded in England as fundamental law or as a limitation on the power of the legislature. Although the 29th clause is one of only three clauses of Magna Carta which remains in force, the Appellate Committee of the House of Lords held as recently as 2009 that it did not prevent the wholesale deportation by the British Crown of the population of the Chagos Islands so as to create a military base. The Crown was the legislative authority for the colonies and its decrees were law. Therefore what was done was done was by definition done according to law.
Magna Carta is one of those documents which is important not so much because of what it says as because of what people wrongly think it says. The modern perception of Magna Carta as the source of all our liberties was largely the invention of Sir Edward Coke, the seventeenth century lawyer and politician who was one of the leaders of the opposition to James I and Charles I. Coke transformed Magna Carta from a somewhat technical catalogue of feudal regulations, into the foundation document of the English constitution, a status which it has never really deserved but has nevertheless enjoyed in this country and in North America ever since. But it is Coke’s idea of Magna Carta that has been exported to the world, and not the version that King John or his barons would have recognised. The libertarian tradition in England is one of this country’s great contributions to the development of the modern world. But that tradition, along with the basic principles of our constitution, actually dates from the constitutional settlement which followed the civil wars of the seventeenth century and the deposition of King James II. Magna Carta frankly has nothing to do with it.
The French Declaration of 1789 is to my mind much the more significant document. It is certainly the only one that speaks to us in the 21st century. It is significant not only for what it stands for, and not only because its basic principles have been adopted as aspirations across the world. It is significant because of the divisions among serious political thinkers which it has provoked ever since its first appearance. These divisions go, I think, to the heart of many of the modern dilemmas about international human rights.
The originality and the real significance of the Declaration is not so much the rights that it declares, but its claim to universality. It is this claim that has been most commonly been disputed. It has been disputed mainly on the ground that rights are claims against the community. They necessarily have a social context. They cannot therefore exist in the abstract, or attach to men and women simply by virtue of their humanity. Rights, however fundamental, are the creation of communities and their political institutions. Their legitimacy, according to this view, depends not on their absolute moral value but on their tacit acceptance by the communities in which they are asserted. They may therefore differ from one society to another. They are relative, not absolute.
The chief exponent of this view was Edmund Burke, much the most influential English critic of the Declaration des Droits de l’Homme, whose Reflections on the Revolution in France was published in 1790. Burke has gone down in history as the philosopher of English Toryism, largely on the strength of the Reflections. In fact he was neither English nor a Tory. He was a Whig, an opponent of slavery and of British imperialism in India and Ireland, and a supporter of the American Revolution. Tom Paine, the author of The Rights of Man and the most powerful contemporary advocate of the French Revolution writing in English, felt betrayed by Burke. So did Thomas Jefferson. Everything in his past, they thought, should have made him their ally. This is true, and I think lends a special interest to his criticisms of the Declaration.
Burke objected to the universality claimed for the Declaration, chiefly because he distrusted human reason. He therefore rejected any system of values which was based on nothing else. Political systems reflected the cumulative wisdom of the societies which produced them. What struck the revolutionaries as unreasoned prejudice was often the fruit of the inarticulate experience and historic compromises of the past. They ought not to be overthrown simply because they were conceived to be morally doubtful or intellectually unsatisfying to the current generation of movers and shakers. “We are afraid,” Burke wrote, “to put men to live each on his own private stock of reason, because we suspect that this stock in each man is small, and that individuals would do better to avail themselves of the general bank and capital of nations and of ages.” Rights, in Burke’s view are reflections of each society, inherited from their past and developed incrementally. They were not universal. The attempt to present them as moral absolutes could only end in social disintegration and violence.
Lest it be thought that this was simply an Anglo-Saxon conspiracy, it should be pointed out that a very similar difference of opinion arose among the membership of the French National Assembly and within the committee charged with drafting the Declaration. The text was attacked from the right by conservatives and royalists like Lally-Tollendal and Mounier, who believed that the declaration should be based on the historical values and experience and experience of France. They commended the English Bill of Rights of 1689 as an example. Revealingly, they were often referred to the le parti anglais. But theirs was not just a conservative position. Marat, writing from the left, protested in very similar terms against what he called the Declaration’s “metaphysical speculations”. A shorter, more down-to-earth text modelled on the American Declaration was drafted by Lafayette. But, as is well-known, the Declaration in its final form was substantially the work of Mirabeau and of that great bugbear of Burke’s, the abbé Sieyès. They rejected the American Declaration as being too parochial, too deeply rooted in American experience. Mirabeau was quite open about what he wanted. He wanted “a code of reason and wisdom to be held up as a model for other nations.”
Not all of Edmund Burke’s arguments command respect today, and some of them are purely rhetorical. But he surely put his finger on a critical dilemma, which persists into our own day. The world of politics is divided into two camps. There are those who see public institutions as being based on fundamental moral principles. And there are those who regard them as a mechanism for reconciling the competing interests and prejudices of grubby humanity. The former is undoubtedly the more idealistic and certainly has much the more powerful emotional appeal. But the latter represents a historical truth which is not easy to ignore.