Magna Carta and ‘vox pop’ democracy

Intriguingly there are two substantial permanent monuments to Magna Carta at Runnymede. Both are American. This one was erected by the US Bar Association in 1957.

I was recently asked to participate in a panel discussion on Magna Carta and our democracy by the Australian Archives. The discussion will be replayed on Big Ideas on Radio National this coming Monday 20th July (now here), but you can watch the proceedings here if you’re especially keen. In the meantime, mostly over the fold below here’s a blog post I did in preparation for the event. It’s on the NAA website here. I have also drafted an additional one with some specific suggestions above and beyond a People’s Chamber, which I’ll post in the not to distant future.

It was an enjoyable process (though I was half inside a cupboard so lavishly spaced are the hotels of leafy London.) The panel was dominated by lawyers, the most eloquent of whom I thought was Gillian Triggs, but over the course of the discussion, it dawned on me how much they were gravitating towards solutions that would be imposed by lawyers – all very well paid for their time I hasten to add, though that’s not the main point which is that they are an elite – indeed an elite elite. I think we need to do better than that. You can hear two different approaches to doing a bit better than that. More participatory approaches – championed by Pia Waugh particularly, and more deliberative ones championed by me.

(Apropos of nothing much, Magna Carta had standards in it – weights and measures for wine and other things – just as Hammurabi’s code did. You just can’t keep those emergent public goods from emerging and then attaching themselves to governments to improve their situation.)

If we compare our own system of government to King John’s government – either before or after Magna Carta – there is no comparison. We have a robust democracy rather than a tyranny at the very beginning of a centuries long process by which the West came to impose the rule of law on its rulers. In contrast to the barons of thirteenth century England, if we’re unhappy with our government, we vote them out.

Yet all is not well in our democracy.

Our political system has rarely been held in such low regard. In what I call our ‘vox pop’ democracy, there is a pervasive sense of the staged quality of politics and its remoteness from citizens’ lives and concerns. Political parties have hollowed out to a rump of professionals managing party ‘brands’ – in turn, political ‘brand management’ has hollowed out public debate, producing systemic disaffection and deepening cynicism and distrust.

But despite a good deal of agreement as to the nature of the problem, there’s little that’s agreed about how these problems could be tackled. You could say ‘that’s politics’ – vigorous disagreement is part of the package. But while agreeing on improvements to our democracy will always involve debate, there’s a deeper problem. When we think about the problem we excuse our own role in the problem. We sentimentalise the idea of ‘we the people’.

‘We the people’ can do no wrong. It’s our politicians that let us down – by gilding the lily, by promising more than they can or intend to deliver. And their media are also to blame. They reduce the news to entertainment and encourage people’s resentments.

This sentimentalism then sees us swoon to the siren song of people doing democracy themselves. The internet’s extraordinary connectivity can amp up democratic participation so that we can by-pass a corrupt system and take matters into our own hands.

But the fact is that ‘we the people’ are thoroughly implicated in all those aspects of democracy that we feel so disillusioned with. After all, it’s a democracy. It would be surprising if we didn’t have a pretty pivotal role in the shape our democracy has taken.

The media only got the way it has because our decisions as media consumers reinforced the editorial decisions the media makes. The media reports personality conflict, and the talkback radio of resentful, narcissistic entitlement ahead of policy analysis because that’s what gets us buying papers, tuning in and clicking links.

And guess why politicians make promises that can’t keep? Because it wins them elections. We vote for the promises they can’t keep. (As Bernard says to Prime Minister – or perhaps it’s just Minister Hacker – when Hacker muses that the civil service seems to do little other than prevent politicians implementing their sacred promises to the people: “Well someone has to”.)

This sentimentalism about ‘we the people’ is often tantamount to magical thinking as for instance when a sizable block of republicans wanted to use the occasion of the recent republican referendum to introduce a system in which the people would take the appointment of a head of state into their own hands. No more politicians thank you! But a moments’ reflection reveals who you’ll get if the people elect a public office-bearer. A politician!

Though I am not particularly sympathetic to the argument he was making in articulating them, the Austrian economist and political philosopher Joseph Schumpeter offered two fundamental ideas that have governed my own understanding of our dilemma.

His first point is that even rudimentary social organisations like a local football club have a division of labour and specialisation. Governments have all sorts of functions to perform and that means a division of manual and intellectual labour. A great deal of what governments do involves detailed administration of the relatively humdrum. Wanting all such details to be governed by the will of the people in democratic elections is a recipe for dysfunction. We need means to delegate to those who understand the issues. So the real question becomes how to do we delegate that work so that it is done and seen to be done effectively.

Secondly when ‘we the people’ do engage in politics by voting or by more extensive activism that conduct is generally driven not by reason, but by our expressive and emotional faculties. (If we were governed wholly by instrumental reason, there’d be no point in voting given how infinitesimal is the chance of influencing the outcome.) As early as the 1940s, Schumpeter was prescient about the similarity between the growing irrationalism of commercial advertising and political campaigning. He observes:

We find the same attempts to contact the subconscious . . . the same technique of creating favorable and unfavorable associations which are the more effective the less rational they are . . . the same evasions . . . and the same trick of producing opinion by reiterated assertion that is successful precisely to the extent to which it avoids

Sound familiar?

Today we live in a democracy in which either side can paralyze the other with a scare campaign by playing on fears. Paul Keating won an election in 1993 with an about face on the GST – opposing the very policy he’d so vociferously campaigned for a few years previously. It was hugely successful. Vox pop scare mongering at its best.

But today we’re even further along the road. For in 1993, for all its brazenness, the policies with which Keating retained government were relatively coherent.

Today the depredations of vox pop democracy have gone further. The current government found its way to power not simply with a vox pop scare campaign but with a policy that was designed only to get through media interviews, not any length of time in government. And so the government committed itself to meeting Australia’s emissions targets at the same time as dismantling the most efficient way to do so – with carbon pricing – and replacing it with a subsidy scheme which will only be effective to the extent that it evolves towards the carbon pricing scheme it replaced.

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6 years ago

” Political parties have hollowed out to a rump of professionals managing party ‘brands’ …”
Brazen careerism is what we might just call that, I think. What do you think ? Careerism is what you get when there’s a good living to be made (especially if you can last long enough to get a lifetime parliamentary pension) and no ideological conviction to upset one in this magnificent personal ambition.

“And guess why politicians make promises that can’t keep? Because it wins them elections. We vote for the promises they can’t keep.”
Who do you mean “we”, White Man (you do get the Lone Ranger reference, I trust).

Just a couple of points: when was the last time you tried to conduct a serious and reasoned interaction with somebody of IQ 95 or less ? And what percentage of the voting population has an IQ of 95 or less ?

Also, because we are in the hands of ideological vacuums, party platforms are a hopeless mishmash of prejudices, ignorance and attempts to appeal. But if all parties propose hopeless mishmashes, who can you vote for ? And why ?

“All is not well in our democracy” because “our democracy” is the property of us and “our” weakness, ignorance and stupidity. So it goes.

6 years ago
Reply to  Nicholas Gruen

Thanks Nicholas,

If you think you don’t have any problem reasoning with people of IQ 95 or less, then you don’t try to do it much. You visibly have great difficulty reasoning with people of significantly higher IQ than 95. However, I respect your disrespect for IQ and I await your learned paper justifying it.

But since we are trying to reason together here – a fine historical tradition as I’m sure you recognize – what self righteousness of yours led you to conclude that my remarks about people of IQ 95 or less is un- or anti- democratic ? Just because I realise that a very significant percentage of my fellow citizens have neither the inherent reasoning capacity nor the knowledge or sophistication to make rational decisions doesn’t mean I’m anti-democratic.

Perhaps I would be anti-democratic if, on the strength of my observation I was trying to remove the vote from low IQ citizens which I did not (and do not). I simply point out, to repeat, that they are basically incapable of making the kind of rational decisions that modern society requires. Can you see the difference now ? After all, it was you who threw in the gratuitous observation about “‘vox pop'” democracy, wasn’t it?

But then, I can’t see any convincing evidence that either you or I can make such decisions sufficiently well either. Unless perhaps you’d like to claim your life as a never failing succession of informed, rational decisions at every turn ? I certainly would not make any such claim for myself.

6 years ago
Reply to  GrueBleen

Ah well, Nicholas, as you continue to enjoy your selfish desires, you may like to read this:

It’s an entertaining diversion.

John Walker
John Walker
6 years ago
Reply to  Nicholas Gruen

The political and moral process was , and is ? about ‘ house training’ those who are not average: the powerful. Designing something that is big clever and dumb or really bad takes brains.

6 years ago

The badness of Bad King John is grossly exaggerated as is the significance of John’s version of Magna Carta. Detailed study of the actual records of the reign did not happen until the 1940s and shows rather a different view than the two chroniclers who described his badness.

One of them, Matthew of Paris claimed that John variously 1. was a Muslim or 2. had offered to become a Muslim if the Almohad Caliph Muhammad ‘al-Nasir’ would send him soldiers. Matthew seems not to have noticed that the caliph and suffered a spectacular military defeat at Navas de Tolosa in 1214 and would not have been in a position to spare a single soldier. There si a fine tradition of chronicler fantasy that goes right back to Procopius of Caesarea accusing Justinian and Theodora of being actual vampires. No doubt Procopius would have held up a Ditch the Witch sign, given half a chance.

Medieval kings issued charters. In some kingdoms, the charter was the principal method of legislation. They issued charters to lords, churches, monasteries, cities and occasionally to the whole kingdom. Charters granted or confirmed privileges and were usually issued in return for quite large sums of money. Great lords and church bodies issued their own charters to feudal subordinates in England and elsewhere.

Magna Carta was not unique in Western Europe and not unique in England. John’s great charter was repealed by Innocent III 2 years after its signature and the repeal was generally accepted in England.

The charter was reissued in the minority of Henry III minus the authority of a baronial committee to rebel if they believed the charter was being violated. Various kings re-issued the Henrician version as a kind of expanded coronation oath until it became a statute under Edward III in 1297. The 1297 statute is the version that is part of our legal system.

All charters carried an eschatocol or witness list where the charter-maker persuaded as many aristocrats and prelates as possible to witness the charter. The main way we track the physical movements of kings through their realms is analysing eschatocols for places of issue. The eschatocols give a very good picture of rising and falling court factions because they ell us who attended the king at particular times and places.

The English parliament was not the first parliament in Europe, That would be the icelandic Althing which met regularly from 980, although it lost most of its legislative powers when it sold out to the king of Norway in 1262. (Libertarians adore the Icelandic Old Commonwealth but seem not to notice how quickly it fell under the control of wealthy magnates who later happily abandoned the system in return for lots of cash and feudal titles)

The Cortes of Leon met regularly from 1188 after Alfonso IX faced a somewhat similar crisis to John and resolved it by issuing a great charter that confirmed the privileges of aristocrats, prelates and cities. England had a great council, as did most kingdoms in Western Europe. Although the great council is increasingly described as a parliament from the 1200s onwards it did not evolve into what we would recognise as a legislative body with some elected members until the 1300s, long after both althing and cortes.

New kings in Western Europe invariably took coronation oaths that often promised to ‘restore’ the ‘good laws’ as they had been under ‘Good King X’. The good laws were almost inevitably new laws that Good King X would not have recognised. In 1100, Henry I of England, for example, issued an expanded coronation oath called the Charter of Liberties where he promised at section 13: ‘ I will restore the law of King Edward and the amendments which my father introduced upon the advice of his barons.’

Neither the laws of Edward the Confessor nor the amendments by Henry’s father, were recorded and collected in one place. The production of charters allegedly issued by Edward the Confessor or Alfred the Geat was a roaring trade in merry old England. Occasionally these forged charters cited kings who did not actually ever exist or gave dates outside the said king’s reigns.

Henry VIII occasionally claimed that his church legislation was merely restoring the good laws of Alfred. This no doubt had the signal advantage that no-one in Tudor England had any idea of what the good laws of Alfred might have been.

Kings who promised to restore the laws of Good King X without the big new taxes paid about as much attention to their coronation oath as Anthony of Warringah.

Magna Carta became significant in the 1600s when it became, quite fictitiously, a restoration of the ancient Anglo-Saxon constitution where kings governed in and through parliament. Propaganda about Magna Carta generally ignored the sad facts that no actual Anglo-Saxon would have recognised the ancient constitution or that no parliament existed in Anglo-Saxon England. (The Witan was simply a council of lords and prelates whose membership and powers were determined by the king. Post-Conquest chroniclers tended to refer to the Witan as the great council until about 1400. Harold II was the only king ever named by the Witan, although that did not prevent claims that the Witan always elected the king)

Magna Carta then was not unique to England or in England. Parliament (also not unique to England) did not emerge until a century after Magna Carta. The Magna Carta of bad King John is not part of our law and its significance flows in equal parts from Hollywood and sixteenth century parliamentary propaganda. The Magna Carta went on to become the central jewel of the Whig theory of history where everything in England was unique and wonderful and then became even more unique and wonderful. See almost any contemporary English politician for modern developments of the sixteenth century claims about English uniqueness and wonderfulness. Indeed see Bronwyn of Mackellar for modern claims about the uniqueness and wonderfulness of Australia’s system of government.

Obviously no would claim that there was a vox pop in John’s England and indeed the people referred to in the various magna cartas did not include the vast majority of the king’s subjects who lived in a variety of unfree statuses. Nevertheless, English kings, had to conciliate aristocrats, prelates and to some extent towns and thinking of them as unbridled autocrats or tyrants is simply wrong.

Brendan Godwin
Brendan Godwin
6 years ago
Reply to  Alan

Alan, what you said is interesting if verifiable. I do however note a statement that you made in the 2nd last para that is not correct.

“The Magna Carta of bad King John is not part of our law . . .”

cl. 63. Wherefore we . . . firmly command that . . .the men in our realm shall have and hold all the aforesaid liberties, rights and concessions . . . fully and completely for them and their heirs of us and our heirs in all things and places forever . . . Both we and the barons have sworn that all this shall be observed in good faith and without deceit. . . .

This was given under oath by King John, signed by his hand and delivered to the people sword in hand.

There were a number of statutes confirming the Charter but two in particular are of interest. They were both entitled (in part) “A Confirmation of the Great Charter”. The first in 1297 says in part:

The Charter of liberties . . .shall be kept in every point without breach. And we will that the same Charter(s) shall be sent under our Seal, . . . to all our Cities throughout the Realm, together with our Writs, in which it shall be contained . . . that our Justices . . .shall allow the said Charters pleaded before them in Judgment in all of their points, that is to wit, the great Charter(s) as the Common Law . . .

And we will, That if any judgment be given from henceforth contrary to the points of the Charter(s) . . .it shall be undone and holden for nought.

And in 1368:

It is assented and accorded, That the Great Charter . . .be holden and kept in all points; (3) and that if any statute be made to the contrary, that shall be holden for none.

These clauses form part of the UK Constitution. (See Dicey’s Law of the Constitution 10th Ed 1961 pp 206-37)

The Charter is still the Common Law in Australia. (Jago v The District Court (NSW) 12 NSW LR 558; 168 CLR 23; Heron v McGregor, (1986) 6 NSW LR 246; Aboud v Attorney General, (1987) 10 NSW LR 671; R v McConnell, (1985) 2 NSW LR 269.)

Plus various clauses of the Charter have been enacted in every Australian state via the Imperial Acts Application Acts.

The Magna Carter is well and truly part of our laws.

3 years ago
Reply to  Brendan Godwin

The charter that is part of our law is (as I said in the original comment) the 1297 version which is quite different from the version issued by Bad King John. The 1214 version authorised a committee of 25 named aprons to make war on the king fi the charter was violated and released all subjects from their oaths if the charter was violated.

EDWARD by the Grace of God King of England, Lord of Ireland, and Duke of Guyan, [to all Archbishops, Bishops, &c.] We have seen the Great Charter of the Lord Henry sometimes King of England, our Father, of the Liberties of England in these words:

HENRY by the Grace of God King of England, Lord of Ireland, Duke of Normandy and Guyan, and Earl of Anjou, to all Archbishops, Bishops, Abbots, Priors, Earls, Barons, Sheriffs, Provosts, Officers, and to all Bailiffs, and other our faithful Subjects, which shall see this present Charter, Greeting: Know Ye, that We, unto the honour of Almighty God, and for the salvation of the souls of our Progenitors and Successors [Kings of England,] to the advancement of Holy Church and amendment of our Realm, of our meer and free will, have given and granted to all Archbishops, Bishops, Abbots, Priors, Earls, Barons, and to all [Freemen] of this our Realm, these Liberties following, to be kept in our Kingdom of England for ever.

Magna Carta (1297) CHAPTER 9 25 Edw 1 cc 1 9 29

The protocols to the great charters of Edward I and Henry III make no reference to the Magna Carta of John. (Charters across Western Europe are typically divided into a protocol, which gives the charter its force, a body, and an eschatocol which is a witness list at the end.)

Notice that neither the Henrician nor the Edwardian great charters extend any rights beyond Freemen to the large majority of English people who were not clergy, barons or freemen.

6 years ago

Thank you for that exegesis, Alan. It certainly illustrates in graphic detail just how much research and analysis is needed to understand even fairly simple matters.

So, when we encounter “… the same trick of producing opinion by reiterated assertion …’ we know just what has gone into transforming Magna Carta into an item of mindless veneration.