How the Magna Carta Paved the Way for the Total State; Comparing Roman Republican Systems with the Old Testament Polity

Dominic Foo · 2023-11-20T03:48:14.837Z

This argument may be surprising since the Magna Carta is frequently celebrated as a cornerstone of English liberty rather than the stepping stone towards a totalitarian state. However, I will show how this is so through these chains of arguments: A comparison between the Biblical Old Testament legal order and the Roman Legal Order, how the distinctives of the Roman legal order fundamentally leads to a totalitarian state, finally, how the Magna Carta "rhymes" with the history of the Roman constitutional development and planted the seeds for a total state. So as I have been arguing of late, there are certain key difference between the Old Testament legal system and that of the Roman constitution and the three key ones are (1) a lack of meta-laws, that is laws about other laws, whether the limits of other laws, the scope of their validity, or how to make those other laws, (2) the absence of any "constitutional law", there are no separation of powers, no checks and balances between power factions, absolutely no concern or consciousness of who and what organs wield what kind of political power to make laws and how and finally (3) the absence of constitutional procedural laws for making new laws, in fact, it may not actually be possible to make any new ones. The last point, that in the Old Testament it may not be possible to make new laws is the most significant one. Whereas it may be arguable that Deuteronomy 1:9-18 prescribes a sort of "election" for leaders of the tribes, however these "leaders" are purely judges. Their main task is expressly prescribed in verses 16-18, to hear cases and disputes between the brethren and judge between them. There doesn't appear to be any way to make new laws. Tentatively I would hypothesise three kinds of political obligations or powers in the Old Testament polity: (1) the judgement of judges, (2) the orders of kings, which are not "open ended" standing orders, but orders to accomplish very specific and delimited ends, e.g. King David can order a census but he can't create a law to have a census every year. Such orders are "alive" only as long as the person issuing it is alive or in power, they don't float independently of the person or acquire a life of its own after the person died. A decree is literally just a statement of the king's desires. Every royal decree come with an automatic sunset clause as it were. Finally (3) covenants between individual concrete parties, not "the social contract" of the early modern period. From this exposition it is very clear how very different the Old Testament polity is from the Roman Republican system and from virtually every polity on earth today (with the exception perhaps of certain Arab states). The Roman Republican system is notable for three features (a) obviously the ability of the state to make laws (b) a complex system for deciding who gets to make them, the distribution of legislative powers, and how it is made from which follows (c) citizenship rights to participate in this law making process. You might think that the concept of citizenship rights and the power of "the People" to make laws seems like a good thing, even a liberal thing. But think about this very carefully. By making rights and liberty derivative of legislation, the Romans have introduced the concept that freedom really comes from the state, from political and human actors on earth. It is the People who create these laws and constitutions from which comes liberty, all your privileges and benefits as such come from the state and man-made constitutions. Furthermore, by the very idea that man can make laws, it introduced the idea that you can control every one and other people by making laws. The radical revolution of the Old Testament polity is that God is their direct king, the laws protecting the widows and poor, etc, etc, come directly from God and is not the product of legislation nor does it come from state processes, etc. It is simply not possible for men to expand the corpus of law without divine revelation. The Romans as such introduced the idea of political power as an object of possession, as a thing to be grasped and sought. They introduced the idea that people can pass laws to rule over other people and control other people. From here comes the idea of power struggle between the different "orders" of Roman society, between the plebeians, the patricians, the Senators, etc, etc. To prevent the Roman state from collapsing into total anarchy, temporary truces between the different power hungry factions are made via concessions of bits and pieces of the power pie to the different factions of society. But all of them always hungering for more, always permanently at war to seize more power at the expense at other orders, etc. But the origin sin is the idea that you can even establish dominance and the right to rule others and it is a thing which you can actually possess via the state and its political processes. Furthermore, if your citizenship rights and privileges come from the state, that grants the state's orders and agenda political legitimacy, loyalty to the state, and ultimately, and obligation on your part to serve the state. As I've mentioned several times, citizenship rights and giving the plebs a share in the political process enabled the Roman Republic to access masses of bodies for their citizen armies, which bodies they can throw repeatedly at their foes all over the Mediterranean to create their empire. The French Republic centuries later would be able to field a massive levee en masse to fight the royalist forces against her with the exact same logic. Remember, if there is no taxation without representation, then that means that the government can jack up your taxation with representation. Giving people a share of political power in the state or "representation", the ability to rule and create laws, also means that the state can tap into the vast resources of its people in terms of blood and treasure. Thus, as libertarians like Hans Hermann Hoppe has pointed out, the most destructive wars of human history are wars waged by democracies and republics, who can summon and marshal vast forces and resources to throw at their enemies. The limited wars of kings on the other hand only concern nobles and aristocrats, of which the peasant is unwilling to throw themselves into the fray for it does not concern them. Thus, it is easy to see here how the seeds of the "total state" is sown by the Roman Republican system. We need only compare the two very different attitudes towards the family and the state in the Roman Republic and the Old Testament. From Polybius we read: In the past, many Romans volunteered to decide battles by single combat, and quite a few chose certain death, either in war to save the lives of the rest, or in peace time to preserve the state from danger. And some high-ranking men took the unconventional and extraordinary step of killing their own sons, because they put Rome’s interests before the natural ties of family. Thus, the Romans willingly throw themselves into war in service to the state, some even going so far as to deny the natural ties of family and kill their own sons in the interest of Rome. Contrast this to the Old Testament in Deuteronomy 20:2-9 When you are approaching the battle, the priest shall come near and speak to the people. He shall say to them, ‘Hear, O Israel, you are approaching the battle against your enemies today. Do not be fainthearted. Do not be afraid, or panic, or tremble before them, for the LORD your God is the one who goes with you, to fight for you against your enemies, to save you.’ The officers also shall speak to the people, saying, ‘Who is the man that has built a new house and has not dedicated it? Let him depart and return to his house, otherwise he might die in the battle and another man would dedicate it. Who is the man that has planted a vineyard and has not begun to use its fruit? Let him depart and return to his house, otherwise he might die in the battle and another man would begin to use its fruit. And who is the man that is engaged to a woman and has not married her? Let him depart and return to his house, otherwise he might die in the battle and another man would marry her.’ Then the officers shall speak further to the people and say, ‘Who is the man that is afraid and fainthearted? Let him depart and return to his house, so that he might not make his brothers’ hearts melt like his heart.’ When the officers have finished speaking to the people, they shall appoint commanders of armies at the head of the people. Thus, if you had yet to enjoy your lands, your wife, or if you were just afraid, depart and there is no shame in that. Thus, under God, each man and his family were valued above even the interest of Israel and no man was expected to sacrifice it all for Israel. Israel was merely a confederacy of tribes under God, not a total state. The link to the Magna Carta now I trust are obvious. When King John in his "Great Charter" granted rights and liberties to the barons, that was the beginning of the idea that rights and liberties have a man-made source, and this occurred precisely in an analogous context to the "conflict of orders" between the different parts of the Roman Republic. In the case of England, between the barons and the king, each vying for more "freedom" or power for itself. From hereon was planted the seeds the idea of political and power struggle, of political power and the power to rule as a thing to be grasped and possessed, and as the source of rights and liberties. While the American Declaration may have started on the correct note in simply recognising that the liberty of man is directly endowed from God, by the time of the Bill of Rights that note has been completely subverted when the Bill of Rights expressly prevented the federal government from acknowledging or recognising the divine origin and constitution referred to by the Bill of Rights. The First Amendment effectually cut off every other right in the Bill of Rights from God, and made the state the sole determiner of those rights. Thus, American history now is simply a repeat of Roman history, if it lurches towards totalitarianism today, that is only because it is directly modelled and built on the same foundations: the lust for political power between the different orders and factions in society, the constant warring and negotiation for deciding who get to rule over the others, and the struggle for more rights and privileges from the state. The Old Testament by contrast shows us the only true free state: One where there are no "constitutional laws", no one has the right to pass legislation, rights and liberties come directly by divine/natural law, and all of us are governed directly by God and not men.

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