A new metaphor for Magna Carta and property - Part I: Magna Carta and two stories of property

Today we have the first of two guest posts (the second is here) by Paul Babie of Adelaide Law School on Magna Carta and the Forest Charter (for my own post on the topic see here - DS):

A Medieval Forest
(Gaston III, Count of Foix, Livre de Chasse (1387))

Many thanks to David Schorr for asking me to write this Guest Blog, based upon my article ‘Magna Carta and the Forest Charter: Two Stories of Property (What Will You be Doing in 2017?)’ 94 North Carolina Law Review 1431 (2016). In this post, I have removed the citations—these can be found in the original article.

In mid-2015, an interesting exchange took place in the United Kingdom House of Lords. On June 4, Baroness Miller of Chilthorne Domer put this question to the government:

To ask Her Majesty’s Government whether they will mark the 800th anniversary in 2017 of the granting of the Charter of the Forest in a similar way to that in which the Magna Carta is being marked this year.

And on June 18, Lord Faulks answered:

The Charter of the Forest was an important document in its own right when it was issued by Henry III in 1217 at the same time as a re-issue of Magna Carta. The Charter re-established rights of access to the forest for free men that had been eroded over the time. However, although the provisions of the Charter of the Forest remained in force for a number of centuries, it has not enjoyed the same lasting and worldwide recognition as Magna Carta, which has had an enduring significance on the development of the concept of the rule of law. Consequently, while the Government is actively supporting the celebration of the 800 anniversary of Magna Carta this year, it has no plans to mark and celebrate the 800th anniversary of the Charter of the Forest.

At one time, the “Charter of the Forest” or the “Forest Charter” enjoyed a status equal to its indispensable partner, Magna Carta. Indeed one could not be understood without the other and the failure to remember this fact, either now or in 2017, leaves impoverished our understanding of Magna Carta’s legacy. Why?

In failing to consider the Forest Charter and Magna Carta together, we lose the former’s commitment to community and obligations that balances the latter’s legacy of individual rights.The source of this impoverishment originates in the association of Magna Carta with freedom, or more accurately constitutional freedom, or even more accurately American constitutional freedom.  And the adjectives “personal” and “individual” often qualify this understanding of freedom. In other words, for those aware of Magna Carta at all, they likely view it through American lenses, and those lenses focus an image of freedom that carries a decidedly individualistic parallax.

The individualistic impression of freedom found in Magna Carta emerges from its famous chapter 39 (29 in the definitive 1225 Magna Carta) which, as understood today, contains four important concepts which form the core of modern American constitutional freedom: habeus corpus, the prohibition of torture, trial by jury, and the rule of law. Yet a fifth significant individual freedom—frequently mentioned in modern American case law, yet so ubiquitous in our social vernacular as to go virtually unnoticed in our modern world—also emerges from chapter 29: property.

In a string of decisions stretching back almost to the antebellum period, the Supreme Court of the United States found, and continues to find in chapter 29, the origins of the protection for property. This appropriation of Magna Carta’s legacy served the early republic in its pursuit of capitalism as its foundational economic creed; indeed, American law enlisted Magna Carta to protect individual property rights almost anything, including, sadly, the ownership even of human beings in the form of slavery. And it is in this seemingly unbounded potential of Magna Carta to support the protection of property even in the most extreme and abhorrent circumstances, that the failure to recognize the Forest Charter leaves impoverished Magna Carta’s legacy.

For Magna Carta’s legacy contains so much more than merely the protection of property in the hands of the individual and so much more than individual freedom at the expense of the freedom of others. Indeed, one of the great themes emerging from Magna Carta, when one clears away its uses in American law, is the recognition of the community and obligation towards others as a balance to the protection of the individual and rights. But the process of clearing away requires a reunion of Magna Carta with its historical partner, the Forest Charter. The reunion involves the telling of two stories of property—one, the well-known story of Magna Carta’s place in how we understand property-and the other, the entirely forgotten story of the Forest Charter’s balancing of Magna Carta’s first story of property. The former is the celebrated legacy of Magna Carta, the other lies hidden in the mists of time.

The first story I refer to as “Magna Carta as Individual and Rights”. This story, emerging from chapter 29 and told successively by commentators and judges, supports an understanding of property that focuses on the individual. The story can be succinctly stated: the individual has self-regarding or self-seeking choice in relation to the use of goods and resources, and that power of choice ought not, save in exceptional circumstances, be interfered with by others, including, and sometimes especially, by the state. In short, this story tells us that property is “individualist-absolutist”: individualist in the exercise of rights and absolutist as concerns state interference with the exercise of those rights. Why does the story matter?  Because so much theorizing about property comes from U.S. Fifth Amendment Takings Clause jurisprudence, property today is often thought of as an echo of this first story. Put another way, this story supports the modern liberal conception of property and the liberal conception permits a great many choices to be made by individuals, both natural and legal, about goods and resources, none of which take account of the way that those choices might affect others or the wider community. This story, largely created, and certainly encouraged and perpetuated by American law, allows Magna Carta’s enlistment in defense of such choices. This is problematic because those choices constitute an overlooked aspect of many of the problems we face in modern global life.

But this first story, like the conception of property it is said to support, represents only half the story—for property is in fact relational, too, an understanding of property that Magna Carta’s legacy can also support in its second story, forgotten story, the story of the Forest Charter, which I call “Forest Charter as Community and Obligation”. It is not easy to tell this story—the fading from memory of the Forest Charter’s role in the legacy of Magna Carta is almost complete. To take but two examples of this fading, over the summer of 2015, while in the United Kingdom, I visited the British Library and Salisbury Cathedral, which together hold three of the four original copies of Magna Carta 1215; both of which had major exhibitions for the 800th anniversary. The British Library exhibition mentioned the Forest Charter in just one display, while Salisbury Cathedral’s exhibition made no mention at all. Indeed, if one was not aware of it, one could easily have left both exhibitions without ever knowing that the Forest Charter was at one time the co-equal “sister” of Magna Carta, and at the very least a central component of its legacy. At some point in the last 800 years, the Forest Charter’s story was lost; why it was lost may itself be lost to us today. In reuniting the Forest Charter with the first story, we rediscover a long-forgotten legacy of Magna Carta for property.

What then has been lost in our forgetting of the Forest Charter? Simply this: community and obligation—the balance of the individual and rights—which in essence forms the core of a relational understanding of property. In other words, historically, Magna Carta had its own balance—the Forest Charter. In losing that important counterbalance to the first story, much of what American law tells us about the support Magna Carta gives to the modern, liberal, individualist-absolutist conception of property is misleading. It is misleading because it leaves out the balance of community and obligation to the community and others. It misleads because it denies much of what we know about property today. It is not solely about the individual exercising rights in a self-regarding way; it is also about relationship, which means that it is about considering the other, the community, and the obligations that we owe towards the other and to community in exercising the rights conferred by property. We forget both documents, read together, at the peril of losing a fundamental component of Magna Carta’s legacy for property. The whole story of Magna Carta’s legacy for property includes both stories.

Reuniting these two stories has two important outcomes for our understanding of property. First, it dispels misconceptions about Magna Carta’s true legacy. Second, in rediscovering the community and obligation that balances Magna Carta’s focus on the individual and rights, we allow its legacy to tell an entirely different story, one much more in keeping with its original public meaning about the nature of property. This alternative image of private property may serve as the foundation for a new perception of the environment and our place within it, responding to the causes and ameliorating the effects of climate change. We might, then, consider a new metaphor in reassessing Magna Carta’s story of property.

[Part II here]