Who May Use the King’s Forest? The Meaning of Magna Carta, Commons and Law in Our Time

David Bollier: “The relationship between law and the commons is very much on my mind these days.  I recently posted a four-part serialization of my strategy memo, “Reinventing Law for the Commons.”  The following public talk, which I gave at the Heinrich Boell Foundation in Berlin on September 8, is a kind of companion piece.  The theme: this year’s celebration of the 800th anniversary of Magna Carta and its significance for commoners today.

Thank you for inviting me to speak tonight about the 800th anniversary of the Magna Carta and the significance of law for the commons.  It’s pretty amazing that anyone is still celebrating something that happened eight centuries ago!   Besides our memory of this event, I think it is so interesting what we have chosen to remember about this history, and what we have forgotten.

This anniversary is essentially about the signing of peace treaty on the fields of Runnymede, England, in 1215.  The treaty settled a bloody civil war between the much-despised King John and his rebellious barons eight centuries ago.  What was intended as an armistice was soon regarded as a larger canonical statement about the proper structure of governance.  Amidst a lot of archaic language about medieval ways of life, Magna Carta is now seen as a landmark statement about the limited powers of the sovereign, and the rights and liberties of ordinary people.

The King’s acceptance of Magna Carta after a long civil war seems unbelievably distant and almost forgettable.  How could it have anything to do with us moderns?  I think its durability and resonance have to do with our wariness about concentrated power, especially of the sovereign.  We like to remind ourselves that the authority of the sovereign is restrained by the rule of law, and that this represents a new and civilizing moment in human history.  We love to identify with the underdog and declare that even kings must respect something transcendent and universal called “law,” which is said to protect individual rights and liberties.

In this spirit, the American Bar Association celebrated Magna Carta in 1957 by erecting a granite memorial at Runnymede bearing the words “Freedom Under Law.”  On grand public occasions – especially this year – judges, politicians, law scholars and distinguished gray eminences like to congregate and declare how constitutional government and representative democracy are continuing to uphold the principles of Magna Carta.  More about that in a minute.

This evening I’d like to explore a richer, more complex story about Magna Carta and its meanings for us today.  There are in fact two distinct but related stories to be told.  Story No. 1 – call it “The Triumph of the Modern Market/State” – is the one that I just told.  It is usually invoked by distinguished elites to celebrate constitutional democracy, its close alliance with so-called free markets, and the idea of “freedom under law.”  Story No. 1 assures us that constitutional government and representative legislatures actually serve as the brave bulwarks of liberty and law, defending the rights enshrined in Magna Carta.  And to be sure, the Great Chart represents a significant advance over the monarchy, tribalism, and a Hobbesean war of each against all that once prevailed in many regions of the world.

Myself, I’m more interested in the neglected side of the history of Magna Carta, a story that doesn’t get told very often.  Call it Story No. 2, or what I call Law for the Commons. ...(More)”