Salisbury, the Magna Carta and lawmaking today

A couple of months ago Cathy and I vacationed in Southwestern England. Our in-laws (Cathy’s sister Nancy, her husband Dan and their son Conner) joined us there, largely because Nancy had traced the family ancestry to some small towns there and we wanted to see where that part of the trail began. (We had always wanted to see the Cotswolds as well.) There’s wonderful little villages full of picturesque cottages (like this one) and some great hiking trails; we’ve always wanted to visit there and this looked like a great opportunity!

One of the towns we stayed in is Salisbury, where a beautiful cathedral dating back nearly 900 years (construction began in 1220) makes for a great afternoon walk through history; of particular interest is one of only a handful of surviving original versions of the Magna Carta. As I’m sure you’re aware, that magnificent document was the result of some arm-twisting of King John around the same time as the Salisbury Cathedral was being built, and while it is considered the template for the rights of all humans today, when it was written it was nothing of the sort; it was the barons of the time forcing the King to cede some of his power to them, and was a manifestation of the philosophy that there was a set of laws that even the king was subject to. Prior to that, whatever the King said (or could get away with) was law, and woe betide anyone who objected overly vociferously. They were likely to find themselves “shortened” by the King’s headsman or locked away in some dungeon forever. Anyhow, King John’s barons got fed up with his capriciousness (or heavy-handedness or whatever) and forced him t
o accept a set of codes that limited his freedom to act in any way he saw fit and recognized the barons had certain rights as well. Interestingly, most of the things written in the Magna Carta are no longer laws; there’s a couple of exceptions around the right to a fair trial, but by and large it’s no longer a template of current law. With one major exception mentioned above:  the philosophy that there is a body of laws that apply within the boundaries of that country, and that everyone…EVERYONE…is subject to those same laws.

So building on that philosophy, our Founding Fathers enshrined a Bill of Rights in our Constitution that codified what was the government’s, what was an individual’s, and what was “Society’s.” It also includes the rather interesting language in the Ninth and Tenth Amendments that any rights not expressly reserved for the government devolved to the states and to the individual, effectively creating a limit to governmental reach.

I’ve explained in previous posts why I don’t think laws do (nor should) have morality as their exclusive basis, although clearly there is a relationship. I also wrote about why simple Utilitarianism fails; in a nutshell if doesn’t protect the rights of the individual against the whole (a task that is admirably accomplished in our Bill of Rights).

So where do (or should) laws come from?

I think the answer is a blend of various different underlying foundational points. I listed a series of points in an earlier post that I think encapsulates where our laws here in the US come from, and I think that’s close, but I’ll try to fine tune it a bit here.

First, Utilitarianism. The greatest good for the greatest number. Starting with that at least gives a nod to an underlying principle for developing laws. To be precise, it’s usually defined as what brings the greatest amount of happiness to the greatest number of people, presumably because the greatest “good” is too ambiguous. I have a bit of a problem with this, since it is theoretically possible to live in a community where causing suffering or pain to others makes people happy, which by Utilitarianism would be the desired outcome. That doesn’t make it right, so I’m using “good” here in the sense that Plato meant in describing the good life. It could be argued that “good” and “moral” here might be interchangeable, which would then bring us back to morality as the proper source of law, but I don’t think that’s correct either; mainly because morality is all too often dictated by the current attitudes of the group; they change over time and from group to group. Different groups thus have different definitions of what is moral, so it’s not a universally-accepted code. Laws need to be universally applied (at least within the borders of that country), so if morals aren’t universally accepted then no laws can be based on them.

But a utilitarian basis must also take into consideration the rights of the individual (articulated in the first ten amendments to our Constitution, also known as the Bill of Rights). So here’s a thought experiment:  you’re the sheriff in a small town that’s been plagued by a series of terrible crimes. For reasons that only you know, those crimes have ceased and will not recur. (Maybe they were committed by a person who has since been run over by a bus, but you can’t prove he was the thief. And say no one would believe you.) In any case, the town is still jittery and you know the only way to calm things down is with a show trial and conviction. So you frame someone who has no standing in the community, get them convicted and executed for the crimes, which satisfies the community and gets everyone back to their lives. This is a classically Utilitarian outcome, but it’s still wrong to convict someone of a crime they didn’t commit. That’s why the Bill of Rights must be the filter through which a utilitarian system must be viewed:  the greatest good for the greatest number, UNLESS it violates an individual’s rights.

A third component of a foundation for law (in my humble opinion of course!) needs to be a consideration of moving towards some ideal or utopian goal. This is of course hazy and difficult to define (kind of like “the good life” I’ve written about before), but in my mind still very important. Although what constitutes “an ideal society” is beyond the scope of this blog entry (and probably me as well), I think there is such a thing. And furthermore, our laws should help us move toward that goal. I think our Founding Fathers, recognizing this, did an outstanding job of setting the foundation and pointing the direction, but obviously there is a process that is required to keep us going in that direction.

And having these underlying principles as a filter through which to view our law-making process will, I think, help us get there.