Magna Carta, the Rule of Law, and the Limits on Government
By Jesus Fernandez-Villaverde
University of Pennsylvania Working Paper, 2015
Abstract: This paper surveys the legal tradition that links Magna Carta with the modern concepts of the rule of law and the limits on government. It documents that the original understanding of the rule of law included substantive commitments to individual freedom and limited government. Then, it attempts at explaining how and why such commitments were lost to a formalist interpretation of the rule of law from 1848 to 1939. The paper concludes by arguing how a revival of the substantive commitments of the rule of law is central in a project of reshaping modern states.
Introduction: Reading Magna Carta is a disconcerting experience. Instead of an eloquent expression of natural rights, such as the U.S. Declaration of Independence, or a well-organized template for institutional design, such as the U.S. Constitution, Magna Carta is an archetypical legal document from the Middle Ages. The language, even when translated from Latin into 21st century English, is unfamiliar. The chapters (the numbering of which was a later introduction to ease reading) cluster without a pattern, more the product of the haste with which this 3,550-word sheet of parchment was drafted than of serene reflection. Most of the chapters, in addition, deal with feudal matters of little relevance to anyone except antiquarians. Other chapters, such as those dealing with the Jews, are oensive to contemporary sensibilities. After this reading, it is dicult not to agree with generations of historians who have conceptualized the Great Charter as a lieu de memoire, an ideological construction that sustains the collective beliefs of the English-speaking peoples in life, liberty, and property, instead of thinking about it as a relevant legal document.
Jesus Fernandez-Villaverde also spoke about this topic at the New York University School of Law: