Sunday, November 6, 2016

A new metaphor for Magna Carta and property - Part II: A new metaphor for property

The second post by Paul Babie on Magna Carta and the Forest Charter (the first post is here):
Green Man (13th Century), Bamberg Cathedral, Germany
© 1992 Clive Hicks (reproduced with permission)
At the outset of Part I, and of my article, quite intentionally, but without comment, I placed the image of a medieval forest; it is a visual representation of lands as they might have been at the time of Magna Carta. It captures, at least partially, Magna Carta’s legacy for property centered, one way or another, in the individualist-absolutist story.

We have heard this individualist-absolutist story told repeatedly, over a very long time: property as choice structured to suit the interests and preferences of the individual, with that power of choice and control protected against all others, including the sovereign. It has become, more than anything else, a metaphor for the liberal conception of property; the same conception that the Supreme Court adverts to and relies upon again and again, just as Chief Justice Roberts did most recently in Horne. The image of the medieval forest represents, visually, that metaphor. While romantic, that image is misleading and false.

The metaphor of Magna Carta as individualist-absolutist property misleads and is false because it represents only half the story—the other half is told by the Great Charter’s lost sister, the Forest Charter. Without the Forest Charter’s story, a necessary dimension of the freedom and liberty of property—the obligation towards others and towards the community—is neglected. The Forest Charter forces us to find a new metaphor, one that represents the dual stories of property as both individualist-absolutist and as community-obligation. This Section suggests replacing the metaphor in the form of an image that would have been very familiar to Kings John and Henry III, to the barons who forced their hand, and to most other people alive at the time that those kings set their seals upon Magna Carta and the Forest Charter: it is the image of the Green Man.

We scarcely hear of the Green Man today, but in medieval times the Green Man was found in churches and public buildings; the careful observer can still see some of the surviving Green Men in European churches and public buildings today. So what is the Green Man? To begin, the Green Man is plural, for there is no one image of the Green Man, but many variants, which can be classed into three broad types. First, the Green Man of late Roman architecture, comprising “foliate heads, which were faces actually formed of leaves, foliate masks—faces composed of leaves.” The second appears in the earliest known Christian example, from the French town of Poitiers, in which “the face generates the foliage, in this case from the nose, but later more usually from the mouth, and occasionally from the ears, and even, grimly, in a few, from the eyes.” Finally, in others “the face is set amongst the foliage, like fruit, and this type shades away into marginal examples which might just be faces ringed with decorative leaves.” One also finds Green Women and some green animals. An excellent example of the Green Man is that found in the Bamberg Cathedral in Germany (Clive Hicks, The Green Man: A Field Guide ix, 1-11 (2000)).

But what is important for present purposes is the fact that the Green Man is both “an image and an idea. It is an image of a human face associated with foliage, and it is the idea that makes real the connection between humanity and nature. The image personifies the idea.” The Green Man captures the idea of both the individual and the community: “within each human psyche there is that which each of us feels to be ‘I’, the ego, which is the incarnation of the psyche. The Green Man is an expression of this.” But more than this, “the consciousness of the individual, set in this mortal vehicle, is the union of the timeless with time, in a circle of birth, death and renewal. The Green Man is an expression of this.” And so, “the idea of the Green Man is an Archetype: it is the practical incarnation of the reality that All is One.” The Green Man is a synthesis of individual and community and of humanity and creation-nature-environment. The individual cannot be understood as being separate from the community; humanity cannot be understood as separable from the environment. They are inseparable; they are one; they are constitutive of one another; they are a synthesis (Hicks).

Increasingly, the Green Man as the idea, the archetype, of the synthesis of individual-community and humanity-environment has been identified with “seeing the world as a whole in a way that no previous generation has done, and [which will] demand reforms as a whole.” Thus serving as a “symbol [having] great value and great potential as a catalyst in the self-revelation of the community and the self-realisation of the individual, and, arising from those, the regeneration of nature that we have so damaged.” The synthesis embodied in the Green Man, then, represents a visual metaphor or archetype of the integration of the individual-community as humanity within the environment, demonstrating the oneness of the three (Hicks).

This visual metaphor of community and obligation serves to counter, but not to obviate, the metaphor of the individual and rights found in the image of the medieval forest. The two metaphors are not and cannot be separate. The “green” of the Green Man comes from the foliage of the forest, thus linking the two images through our relationship to the world in which we live. Both individual choice and obligation towards the community are linked through the subject of our choices, the tangible and intangible things—the environment in which we live—that are subject to the concept of property.

In the same way that the individual and the community ought not be separated but are linked in the visual metaphor of the Green Man, the two stories of Magna Carta’s legacy for property ought not be read separately. Rather, the two are linked in their common treatment of property—thus, they must be read together, as they were intended to be. What might such a reading mean for our own time? In short, the metaphor of the Green Man reveals the inseparability of the individual, the community, and the environment. The Green Man invites us to read together the two property stories emerging from Magna Carta and the Forest Charter. Thus, in the same way that the individual and the community are inseparable, so, too, are the two stories of property. Thus, reading the two stories together teaches a very simple lesson: property, while comprising the power of choice to suit one’s own personal preferences and interests, must do more than simply serve the needs of one person—the king at the time of Magna Carta, the individual in modern liberal vernacular. Property must also, in addition to its individualist-absolutist leanings, serve the needs of the community, the members of which, by right, share in the control and use of the resources required to survive. Community is, in short, central to what property is.

And with the recognition of community comes obligation. The right to commons is the core of the Forest Charter’s emphasis on obligation, which is something that might seem radical if all we can hear is Magna Carta telling us that property is individualist-absolutist. But if we allow ourselves to think that way, we must remember that any feeling of radicalism we might have in recognizing obligation as central to property comes only as a consequence of failing to understand the dual importance of Magna Carta and the Forest Charter. But that is to be expected when the second story, that of community and obligation, has been so fully silenced for so long.

The Forest Charter provides us with both an old and a new story of property, one which supplements, but does not replace, the individualist-absolutist one we have heard for so long in Magna Carta. Leaving them apart impoverishes both documents. When read as one, Magna Carta and the Forest Charter tell a story of property (what we now call the liberal conception (read: individualist-absolutist)) as including obligation towards the community.

What might this mean in the context of the environment and climate change? First, recognizing community and obligation as part of Magna Carta’s legacy for property would mean that we recognize how property, seen as merely individual and rights, allows us to countenance unequal distributions of power—choice—in the control and use of resources. Those concentrations of power or choice in the control and use of resources not only result in inequalities within the state, but also among states, allowing for a small number of people within a small number of states to negatively affect vast numbers of others beyond those boundaries. Climate change, seen through the lens of an individualist-absolutist conception of property, sets this failure squarely before us. If we are committed to adopting the Forest Charter as part of Magna Carta’s legacy, we might hope that the way property is understood would redress this imbalance of power and therefore take greater account of the externalities of climate change flowing from those choices that carry with them extra-jurisdictional reach—those that extend beyond boundaries founded upon ideas of national sovereignty.

Second, and following from the first reflection, the Forest Charter’s story of community and obligation might lead us to recognize the only community that truly matters today: the global community. Climate change is the best indicator of what this community might be. Again, there is no doubt that climate change is a truly global phenomena—it involves global interaction and interdependence that concerns all humankind. The liberal conception of private property, however—the conception said to be supported by Magna Carta—rarely explores how such extra-jurisdictional decisions or choices taken by one who holds private property visit their consequences not only on those within the jurisdiction that creates and sustains private property (i.e. the state), but also on those without, forming what we might refer to as an inter-jurisdictional community.

Viewed in the global context of climate change, private property begins to look rather asymmetrical in the sense that the choices made possible by property, when matched against the externalities involved in climate change, are not limited by national boundaries, as assumed by the liberal concept of private property. The effects of choice exercised in one jurisdiction, the decision to use one form of energy, for instance, or to drive a car rather than ride a bike, produce greenhouse gases that drive anthropogenic climate change. Those consequences go beyond the borders of the jurisdiction that made possible the choice. In short, private property makes possible choices that have consequences far beyond the jurisdictional limits of the systems that created the possibility of such choices. This, combined with the facts that the largest holdings of private property are concentrated in industrialized or industrializing nations, such as the United States and most Western European nations and those most vulnerable and affected by the consequences are those living in the underdeveloped and third world, such as the South Pacific Island nations, renders misguided any focus on physical borders and national boundaries as capable of limiting the reach of the consequences of private property choices.

Thus, asymmetry refers to that situation when the consequences of private property choices are visited on those beyond the jurisdictional reach of the legal structures that created, conferred and protects those choices. This is the case when faced with any global phenomena. Thus, again, if we are committed to adopting the Forest Charter’s story, we must be willing to see our community as somewhat larger than we might have once considered it. In short, it encompasses all people on the planet today.

And that leads to a third reflection: a model of private property that takes account of the global consequences of climate change might also extend the notion of community not only to all other humans on the planet, but also to the environment as a whole. In other words, our notion of community might account for what William Twining calls an ecocentric focus (William Twining, Law, Justice and Rights: Some Implications of a Global Perspective). Anthropocentric actions are those the reasons for which are the provision of a benefit to human beings, while ecocentric ones are those for which the reason is the provision of a benefit to the environment. Twining argues that while most canonical jurists are not indifferent to environmental concerns and do not treat ecocentric reasons as invalid, typically they seem to be anthropocentric in their focus. Of course, there is little doubt that changing the way we relate to the environment through law would be difficult, but perhaps it is not impossible. Charles Reich, writing forty-five years ago in a book seemingly forgotten today, said:
There is a revolution coming. It will not be like revolutions of the past. It will originate with the individual and with culture, and it will change the political structure only as its final act. It will not require violence to succeed, and it cannot be successfully resisted by violence. It is now spreading with amazing rapidity, and already our laws, our institutions and social structure are changing in consequence. It promises a higher reason, a more human community and a new liberal individual. Its ultimate creation will be a new and enduring wholeness and beauty—a renewed relationship of man to himself, to other men, to society, to nature and to the land (Charles A. Reich, The Greening of America: How The Youth Revolution Is Trying to Make America Liveable 11 (1970)).

Magna Carta’s legacy is one that includes both the individual and the community; the Forest Charter comprises an important, but forgotten, part of that legacy, reminding us that the community plays a central role in Magna Carta’s conception of individual freedom. The environment, too, formed a part of the Forest Charter’s conception of the community good. Just as the Forest Charter’s story of property cannot be separated from the Magna Carta’s, so also its conception of the community cannot exclude protection of the environment.

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