Sortition
Newsletter of the Campaign to Defend the Right to a Secret Ballot
(CDRSB)
September 2022 Issue No. 15
ISSN 1756-4964 (Print)
Postal Ballot Fraud Still Main Issue at Mid-Term US Elections
The integrity of the voting process in the USA remains the most important policy question confronting its citizens at the forthcoming mid-term congressional and state elections. Concern about this question has been reflected in the significant gains that have been made by the pro-Trump faction in the Republican Party primaries for selecting candidates to stand in November. Against this background the historically unprecedented FBI raid unleashed upon a former President’s private residence has indicated panic may now be rife among alleged beneficiaries of Democrat Party corruption, which could include a certain former MI6 agent. Their fear would be that the possibility of their arrest and prosecution for complicity in criminal acts - up to and even including murder - is looming ever closer.
Whatever the election outcome it now remains a fairly indelible fact of history that most blue collar American workers want reinstatement of limits on the use of postal ballots. The CDRSB was formed in London in 2002 to oppose the use of postal ballots on demand introduced in 2001. Thirteen decades after the 1872 UK Ballot Act the Blair regime decided using a postal ballot to vote without any reason not to attend a polling station somehow no longer risked increasing electoral fraud. The 1872 Ballot Act was passed to protect the right to a secret ballot in response to one of the primary demands of the first working class movement. Before 1872 landlords and employers would sometimes put pressure on employees and tenants to show how they cast their ballots. We accordingly oppose the use of postal ballots on demand both in this country and also in all countries, including the USA. Our view is that the increase in voting by post from about 2% to about 40% since 2001 carries with it a clear threat to the integrity of the electoral process and should be addressed. This can be done by reimposing the requirement that voters should cast their ballots at polling stations unless they are ill or away from home as was the case throughout the 20th century.
The British Grand Jury: From Origins to Abolition
Part 1: From Origins to Magna Carta
Churchill famously stated that democracy is the worst form of government apart from all the others that have been tried. Not so famously he also stated that the best argument against democracy is a five minute conversation with the average voter. The history of government by consent has involved a series of attempts to resolve this basic dilemma. Churchill’s view is partly counterposed but not ultimately inconsistent with the views of Thomas Jefferson: "Independence can be trusted nowhere but with the people in mass. They are inherently independent of all but moral law." (Thomas Jefferson to S. Roane, 1819).
Jefferson was Churchill’s seventh ancestral cousin removed and regarded by him as “the first political idealist among American statesmen and the real founder of the American democratic tradition.” Jefferson considered the struggle between aristocracy and democracy to be the most longstanding underlying determinant of all political factionalism:
"Men by their constitutions are naturally divided into two parties: 1. Those who fear and distrust the people, and wish to draw all powers from them into the hands of the higher classes. 2. Those who identify themselves with the people, have confidence in them, cherish and consider them as the most honest and safe, although not the most wise depositary of the public interests. In every country these two parties exist, and in every one where they are free to think, speak, and write, they will declare themselves. Call them, therefore, Liberals and Serviles, Jacobins and Ultras, Whigs and Tories, Republicans and Federalists, Aristocrats and Democrats, or by whatever name you please, they are the same parties still and pursue the same object. The last one of Aristocrats and Democrats is the true one expressing the essence of all." (Thomas Jefferson to Henry Lee, 1824).
Jefferson’s view in turn can be seen to be closer in its idealism to that of his ancestral cousin John Lilburne, an English Civil War Lieutenant Colonel who has been with little doubt the main advocate of jury power in British, and consequently world history. Lilburne was the chief author of the Levellers Agreement of the People which challenged the claim that Parliament is the sovereign representative of the people in the English constitution. In command of mass, militant support among apprentice craftsmen especially in London who then later comprised much of the rank and file core of the new model army Lilburne was regarded by Marx as the leading representative of the democratic radicalism from which the Chartists would later emerge to form what he designated to be the first working class party. Despite this assessment and, like Hegel, some noteworthy but perfunctory praise for common law rights Marx had little more to say about jury power.
Hegel had modelled his theory of ‘historic nations’ on Britain and saw its workers as having an "unstated sense of self confidence” in regard to their rights and powers. Nevertheless he saw Napoleon as the ‘absolute spirit’ upon horseback. Marx linked these notions in an inverted Hegelian eschatology based upon bottom up progress in labour skills and methods of production as opposed to the top down idealist development of the ‘absolute idea.’ The claim asserted by Marx of an ‘historic mission’ to be accomplished by the working class in establishing a world socialist system is accordingly ironically presupposed by a failure to fully appraise the role of common sense in democratic development. This and other flaws may be attributed to the philosophical limitations of his ‘inverted’ Hegelian historicism perhaps compounded by other factors - including hidden allegiances - about which there is insufficient evidence to make substantive assertions.
Even so in this somewhat restricted light the abolition of the UK Grand Jury in 1933 can without great difficulty be seen as a short sighted, ill informed and self defeating attempt to improve government by slimming down one of the horns of this aforementioned dilemma - that of democratic participation in the justice system - in favour of transferring power to the other - that of the legal and political aristocracy. Consequently this supposed constitutional improvement has done little or nothing to resolve the basic dilemma of democratic development. Instead of ameliorating the problems of political progress the abolition of the Grand Jury exacerbated them by sharply reducing the role of non-partisan citizen participation in the constitutional and judicial process and increasing the role of party factions and the legal aristocracy.
That even Churchill’s support for the British constitution was still limited by aristocratic tendencies is reflected in the little or nothing he had to say about this abolition despite the fact that the Grand Jury is the oldest extant form of democracy. Historical references indicate its roots can be feasibly traced back through Anglo Saxon, Holy Roman, Romano - British Christian, Roman Imperial and Roman Republican law to their origin in Athenian democracy. Long before Athenian democracy was established the first king of the jews - Saul - was chosen by lot in the 11th century BC. Judaism claims democratic law began in the Sinai desert under the leadership of Moses in the 13th century BC. It seems juries were used along the Nile dating back to 2000BC where they adjudicated matters through the “Kenbet” courts. Usually 16 in number, when cross river matters were dealt with they had 4 traders or artisans from each side.
Aside from these possibilities it is generally recognised that democracy began as a provenly viable constitutional system in Athens following an uprising of the labouring classes in the 6th century BC. Random selection was the chief form of selecting both jurors and delegates to and from the Athenian city assembly to serve in its courts - including the court of last appeal - and executive bodies. The only constitutionally central use of election by nominated choice was for military leaders. This remarkable achievement has echoed down through four millennia and remains unmatched in its scale and consequences. The historical record demonstrates that the Grand Jury is one such, certainly at least indirect, consequence.
One of the connecting threads in this history is the use of juries in dealing with crimes of misconduct in public office. This was one of the most important responsibilities assumed by juries of presentment and grand juries both before and after Magna Carta up to abolition of the UK grand jury in 1933. It continues here even today by means of the right of ordinary citizens to pursue private prosecution of state officials in front of a jury on misconduct charges. Like the right to indictment by grand jury that right may soon be abolished also if the UK Law Commission gets its way and yet more power is handed over to the legal aristocracy.
Four Difficulties
Against this background notwithstanding its imperfections the Grand Jury can be understood to have fulfilled a necessary role in the legal and constitutional process in dealing with one or more of the following main difficulties in the organisation of democratic decision making on a world historical scale.
The first main difficulty arises from the fact that human understanding has evolved slowly over millennia in which myth and superstition played a dominant role. Modern scientific method begins fully only in the 17th century and is still even today encumbered by problematic influences arising from ideas that were developed thousands of years ago. From the stone age to the present day useful knowledge developed primarily through the discipline of increasingly complex, skilled forms of manual labour - including writing - which laid the foundation for development in the modern period of large scale craft industry. This provided the chief source and means by which there has been a steady increase in human intelligence measured over generations since the industrial revolution to very recently. This increase was not achieved for all people evenly primarily because of life chance variants between individuals, nations and races. Such increasingly complex development generates more need for expertise in production, trade and government. Modern meritocratic aristocracy emerges upon this foundation which in turn tends to exacerbate the uneven rate of developing intelligence as polities grow more populous and expand in scale over greater distances.
The second difficulty is that these newer forms of meritocratic aristocracy tend to preserve, strengthen and extend hereditary aristocracy on a general basis thereby creating permanently unequal forms of power and wealth distribution. As Plato recognised hereditary differences lie at the bottom of political friction in most societies and as such comprise ultimately the chief obstacle to developing greater cooperation upon a general scale.
The third main difficulty arises from the development of factions - chiefly among the aristocracy - which pursue selfish aims often hidden from and at the expense of the general citizenry.
This is the problematic context of a fourth difficulty in which Plato’s ‘noble lie’ becomes embedded in political practices which, as the classicist historian Victor Davis Hanson has observed, continue to compound democratic progress even to this day. Seemingly well intentioned as a means to help resolve developmental difficulties arising alongside the growth of hereditary aristocratic power they can be used to justify the concealment of authoritarian and/or aristocratic aims under the guise of promoting social improvements.
A brief overview of the history of ideas and events which most directly concern attempts to overcome these main difficulties can help facilitate better understanding of the general context in which the case for reinstatement of the British grand jury can be best understood. The relation between justice, philosophy, science, reason and theism is integral to such enquiry. They bear close relation to each other in early Greek thought.
Plato’s main achievement was to depict ‘realism’ as a function of immortal and unchanging abstract ideas and, by implication, the soul, as against the changing particularities of the lived, empirical world. Plato’s mind body dualism along with his advocacy of abstract ideas as more ‘real’ than material things was assimilated by and runs through theology and philosophy to the present day. Aristotle’s work - in particular his ‘Organon’ - adopted a more balanced approach to the relation between thought and the empirical world which eventually became dominant in Christianity following the 12th Century Enlightenment. Aristotle’s science however was still so affected by Plato’s tendency to conflate speculation with fact as to claim that cause and effect in the empirical realm is governed by teleological purposes. The work principally of Francis Bacon - his ‘Novum Organum’ - opened the way to correction of these weaknesses and hence to the scientific revolution. This process of correction can, as indicated, be seen to compound but also ultimately facilitate the development of democratic organisation.
Political Science
Unlike the stoneworker Socrates Plato and Aristotle were members of the aristocracy. They harboured a low regard for manual labour which seems to have hampered their attempts to develop reliable insights in the realm of science. Such limitations could also have affected their development of what Aristotle termed the ‘master’ science - political science. In his street consultations - perhaps primarily with his fellow artisans - Socrates had defined wisdom as ‘to know what you do not know.’ Intellectual disdain for manual work however can lead to over confidence in the worth of abstract musings unconstrained by the discipline of craft industry and the practical imperatives of ordinary life. Plato advocated a rigidly controlled class system topped by selective breeding and the empowerment of a virtuous aristocracy of ‘philosopher kings’ to solve problems of government. This totalitarian solution combined a weakness for speculative excess with an insufficiently critical appraisal of aristocracy. Jefferson’s view of Plato’s Republic was accordingly unflattering:
“While wading through the whimsies, the puerilities, and unintelligible jargon of this work, I laid it down often to ask myself how it could have been that the world should have so long consented to give reputation to such nonsense as this? How the soi-disant Christian world indeed should have done it, is a piece of historical curiosity.”
Nonetheless a full account of Plato’s work can grant that he bequeathed lasting achievements to the history of ideas by articulating the distinct nature and significance of abstract thought and thereby helped emplace the still unresolved mind body problem and its dualist implications at the foundation of philosophy. Less well known is that for all its imperfections his Republic was presupposed by an astutely clear focus upon the problematic nature of the hereditary factor in perpetuating inequality of status and wealth and with this the difficulties of factional strife that it generates. His account of the ‘noble lie’ as a means of managing these difficulties anticipates the claims of Machiavelli and his later admirers such as Robespierre, Gramsci, Stalin and Hitler. In this way the high value placed on lies as necessary to the political process by such strategists can be seen as deeply rooted in many centuries of prescientific philosophical understanding and political development.
As indicated Aristotle’s approach to empirical enquiry though less dismissive than Plato’s was still flawed by an over idealistic, rationalistic dualism and a failure to take full account of the knowledge generated by skilled manual labour. Framed by a speculatively conceived theistic teleology his approach to the empirical world helped but also impeded the development of science right through to the 17th century. After studying over 150 of the 1000 city state constitutions that Greece had given birth to Aristotle advocated a ‘mixed’ constitution comprising elements of aristocracy and democracy as the most optimal means to help counterbalance the deficiencies of each form. This insight was studied by Roman constitutional theorists and has comprised a lasting contribution to political theory for two millennia.
Surviving some 180 years Athenian democracy has provided the proven example demonstrating that the near complete use of sortition in politics can be organised to create a functioning, workable system of government. It has established hard evidence that such possibilities are real even at the earliest stages of civilisation and as such stands in refutation of any claim that representative democracy built on election by choice is the only viable form of government by consent. What the Athenians regarded as elective aristocracy has, thanks in large part to Alexander Hamilton, come to be known as ‘representative democracy’ since adoption of the US Constitution. It is not democracy however and no truthful account of government by consent can be formulated which fails to address this popular but erroneous understanding.
The chief factor circumscribing the somewhat problematic American claim to have established a democratic form of republican government in 1776 lies in the powerful and recurring historical tendency for monarchy to be reasserted as the dominant form of government. Once development of agriculture had led to the growth of cities aristocracies and hereditary aristocracies gained power to one or other degree. Athens is the only known example where democracy was established and remained functioning for its free male citizens for a substantial period. Hegel and others attributed this as a fortuitous result of the indented coastline and mountainous yet also fertile terrain of the Greek peninsula. This enabled large scale maritime trade to take place from a defensible base of operations and explains why once they had overthrown their aristocracy the seafaring labouring classes were able to retain power for so long. In all other cities what Jefferson described as the main struggle of political history - that between aristocracy and democracy - resulted sooner or later in subjugation of democratic movements.
Rome
Despite its achievements Athenian democracy was eventually subverted by aristocratic factions from within Athens, Sparta, Macedonia and Rome. Tutored by Aristotle Alexander the Great recognised to some extent the merits of Athenian democracy as also did the Roman Republic established in 509 BC, not only in regard to architecture and philosophy, but also with regard to political institutions. Consequently trial by jury played a less prominent but still significant role under Roman auspices, including with regard to crimes of misconduct in public office.
Cicero’s experience as a lawyer included prosecution of such crime. As a Roman he supported and further developed the Greek philosophy of stoicism, holding truth to be the highest virtue and justice to be “the queen and mistress of all virtues.” Like Aristotle Cicero regarded human beings as political in nature and considered democracy by itself to be insufficiently stable. This was the context in which the ‘mixed’ Roman constitution incorporated 75 member juries to help constrain attempts to corrupt them often - though not always - selected from jury panels of the wealthier classes only. Representation of the poor was achieved by means of election by choice of peoples tribunes who were themselves usually aristocrats. The Roman Senate was at first appointed by the King but then after the overthrow of monarchy it was chosen by the two leading consuls. It was comprised essentially of military leaders, elected magistrates with experience in exercising executive powers at lower and local levels and hereditary aristocrats. Effectively the Roman Republic was what the Athenians would regard as a ‘mixed’ elective and hereditary aristocratic oligarchy with some limited concessions to democracy.
Experienced in adversarial jury trial at the highest levels Cicero agreed with Aristotle’s advocacy of ‘mixed’ government with particular regard for the importance of establishing a clear demarcation of public from private property in order to securely protect ownership rights. The context of his constitutional preferences was the takeover of land from the farming class of citizen soldiers by the aristocracy and their incorporation into large scale landed estates manned by the increasing surfeit of slaves which resulted from Roman imperial expansion. This process had unleashed plebeian movements which increasingly demanded redistribution of land back to the ordinary citizen soldiers. Two sources of instability derived from this predicament - the first from support for democratic development, the second from the demagogic exploitation of such popular demands by military leaders who sought to use such tensions for their own purposes. The Gracchus brothers led a nascent democratic movement but were overthrown by the aristocracy. Prolonged turmoil followed from which Julius Caesar emerged as the prime candidate for restoring order by force.
It was in this context that in the name of stability Cicero gave even more support than had Aristotle to the republican aristocracy and promoted clear recognition in law of their property rights. When Caesar was killed by republicans Cicero eventually suffered the same fate as his assassins. Cicero and his allies had aimed to preserve republican freedom by entrenching the rights of the aristocracy while negotiating terms with the democratic movement. Nevertheless they were eventually defeated by Augustus who thereafter ruled as Emperor in Caesar’s name.
Consequently the Roman Empire was a monarchy for over four centuries. Stoicism remained the most favoured philosophy of its rulers who were nevertheless increasingly confronted by Christianity as the religion of the common people. Saints Peter and Paul, following Christ’s command never to deny him, established a refusal to lie as the only acceptable standard of both religion and politics. The early centuries of Christianity consequently provide the most unambiguous example of a popular movement convinced that the ‘noble lie’ should never be acceptable.
Augustine
Once Constantine gave recognition to Christianity the main differences within the church were between those who had refused to deny Christ in any way and those who had obeyed imperial law to escape persecution. St. Augustine of Hippo in essence sided with the latter faction. He opposed ‘rigourism’ including both its Donatist and Pelagian variants by arguing that the church can administer the sacrament of penance even when beset by priestly corruption because the sincerity and purity that counts is that of the person seeking forgiveness and that of Christ. Augustine ultimately became the most influential theologian in the Roman church and remained similarly valued by later protestant sects. In this way it can be seen that his relatively pragmatic and conservative approach to the Christian faith also found reflection in his praise for Cicero, who similarly emphasised the importance of a search for and defence of truth and justice as the highest political virtue yet at the same time advocated restricting democratic power under aristocratic authority in the interests of stability and good government. Augustine’s respect for Cicero included common ground in regard to heavenly affairs too: Cicero believed in a developed Stoicist sense of ‘divine providence’ and God made natural law as being the source of truth and as having sovereign power over lies and the human conscience. These postulates came so close to Christianity that Augustine suggested they had actually helped him convert to Christianity. Nevertheless against the background of Cicero’s accomplished but somewhat incongruous mastery of the persuasive powers of rhetoric when dealing with legal and political matters Augustine adopted a pragmatic, less than unambiguously Pauline stance in regard to the role of truth and honesty in earthly affairs. This found reflection in his Christian policy for just war.
These insights were incorporated into the ideological platform of Catholicism during the fall of the Roman Empire. They found further expression in the dark age and early medieval period in which remnants of Romano-Christian civilisation were defended with some success and enabled a resurgent evangelisation of Germanic tribes - some by consent, others by the sword. The Arthurian ‘legend’ and the Holy Roman Empire emerged from this process along with the growth of Christianity in Ireland and Scotland thanks largely to the British Welsh Saints Illtyd and Patrick.
This was the context in which elements of Romano Christian British law intermingled with Germanic and Scandinavian traditions of justice using juries throughout much of Europe. Holy Roman Emperors - notably Conrad II - supported their essentially adversarial methods as to some or other extent also did Romano British, Anglo-Saxon, and Norman monarchies. The legal customs of these partly elective Kingships circumscribed by the canonical traditions of both local and papal Christian authorities became the foundation of what came to be known as the ‘ancient constitution’ of England claimed to have been in existence since ‘time immemorial.’
The first recorded instance of trial by jury in Britain following Roman withdrawal was 725AD. Thereafter the chief examples of jury power were those of Alfred the Great in organising resistance to Viking invasion. According to David Hume Alfred used the military collectivisation of everyday life as a basis for improving the administration of justice by the use of 12 man juries: “an institution admirable in itself, and the best calculated for the preservation of liberty and the administration of justice that ever was devised by the wit of man.” Alfred compiled a body of laws, since lost, which Hume deemed to be ‘the origin of what is denominated the Common Law.” These comments by Hume were unchallenged by his later critic John Baxter. King Alfred’s promotion of jury power was followed by the juries of presentment established by Aethelred II. They provided the first examples of grand jury procedure and their juror’s oath remained in existence to the modern period. Juries consequently comprised for many centuries what has been termed ‘the lynchpin” of the British constitution. Nevertheless as stated by Wikipedia in the 12th century the Papacy developed inquisitional procedure as follows:
“Until the development of the Catholic Medieval Inquisition in the 12th century, the legal systems used in medieval Europe generally relied on the adversarial system to determine whether someone should be tried and whether a person was guilty or innocent. Under this system, unless people were caught in the act of committing crimes, they could not be tried until they had been formally accused by their victim, the voluntary accusations of a sufficient number of witnesses, or by an inquest (an early form of grand jury)... because the penalties for making a false accusation were severe… would-be witnesses could be hesitant to make accusations to the court for fear of implicating themselves. Because of the difficulties in deciding cases, procedures such as trial by ordeal or combat were accepted.”
In 1198, Pope Innocent III enacted the new inquisitional procedure so that an ecclesiastical magistrate no longer required a formal accusation to summon and try a defendant. Instead, a church court could simply interrogate witnesses and use their (possibly secret) testimony to get convictions. The Fourth Council of the Lateran confirmed use of the new system in 1215 and forbade clerical participation in trials by ordeal or combat. As a result in parts of Europe the ecclesiastical inquisitional court procedure became the chief method by which disputes were adjudicated.
Investiture
The world historical context of these divisions in ecclesiastical and common law was the problematic role of military power in the Roman and Holy Roman empires. After Constantine’s conversion Augustine’s formulation of just war theology regarding the use of force by Christianity against its enemies became accepted policy. On this understanding church procedures for sanctifying Christian monarchs became common practice. They in turn claimed a role in church governance including with regard to the election and appointment of bishops, abbots and the Pope. Differences and conflict developed about these matters between temporal and ecclesiastical spheres of influence compounded by both intra-national and international rivalries. Chief among these disputes were the ‘investiture’ controversies between the church and the various Kings and feudal lords of Western Europe including the Holy Roman Emperor.
They came to a head in 1076 with differences between Pope Gregory VII and the German King Henry IV who later became Holy Roman Emperor. Conflicts and wars about this disagreement continued for nearly fifty years. A localised expression of this conflict developed during this time between the English King Henry I and Pope Paschal II in 1103. It was resolved with the 1107 Concordat of London. The dispute between the Holy Roman Emperors and the Papacy was only resolved in 1122 through the Concordat of Worms between the Emperor Henry V and Pope Callixtus.
The 1107 London Concordat was presupposed by the oath taken by Henry I to uphold the laws and customs established by Edward the Confessor (which were in turn presupposed by the evangelising, constitutional achievements of Alfred the Great). The London Concordat had the effect of consolidating the independence of England and by implication its church with regard to Papal authority. Given that English feudal lords owed direct fealty to William I and his heirs by right of conquest rather than by vassalage established by other means this was not as much a threat to the unity of the state as it could have been. The integrity of Christianity and the secular English realm stood in some contrast to the more differentiated, ramified and complex arrangements in the Holy Roman Empire between the Emperor, feudal lords and ecclesiastical power. The complexity of these relations made maintaining unity more difficult such that as stated wars arising from them had continued for 50 years.
The Concordat of Worms in 1122 in large part emulated the London Concordat. That it was still a long way from providing an adequate constitutional foundation for cooperation between church and secular authority became famously evident with the murder of Thomas Beckett. The more immediate circumstances surrounding this tragedy arose from the unresolved nature of competing claims upon temporal power in the Angevin empire among feudal lords, Kings and church authority.
A key event in the ongoing attempts to resolve contradictions between church authority and temporal power in the realm of justice was the Constitutions of Clarendon in 1164. The solutions put forward in them favoured greater independence from Rome of the English Church and with this greater allegiance to the Royal power. They stipulated that serious crimes should also be dealt with under common, not solely ecclesiastical law as should also matters of dispute in regard to land ownership. Just as juries had been used by William the Conqueror to detail and ascertain ownership of property in compiling the Domesday Book, so also would specially designated juries be charged with decision making in regard to certain disputes in land ownership, some of which involved moral judgements on matters of equity. These institutional developments comprise the origin of the term ‘grand jury.’
Magna Carta
The grand juries were effectively among the main bodies implicitly incorporated within clause 39 of the Magna Carta regarding the right to judgement by a jury of your peers. In England thereafter the inquisitorial and adversarial methods continued to evolve in a partly complementary fashion alongside the further distinction between indictment and trial that would evolve over the next century. In this way it can be seen that the events and motives which formed the basis upon which Magna Carta came into existence were both relatively fortuitous, arising from fairly accidental circumstances of the immediately preceding period, but also, from a longer term perspective, the consequence of centuries of succeeding attempts to improve social and political development. As indicated these attempts were impeded by several main difficulties in the organisation of democratic decision making.
For example, it could be reasonably suggested that the Constantine Donation was in reality at least partly a Noble Lie committed by the Papacy in the belief that it would help resolve problems in relations between church and secular power which in the long run would be in the general interest of all concerned. Similarly the pragmatic diplomacy adopted by the Papacy in dealing with feudal lords that were sometimes in partnership with each other and/or the Papacy and at other times in conflict with erstwhile allies would have put truth telling to very trying tests.
The clerical interest in administering hereditary law and assistance to the poor also bears a relation to these problems which in its benevolent purposes presupposed noble motives. The growth of Christianity among the masses and significant elements of the wealthy classes of the Roman Empire comprised a step beyond stoicism to a more humane social order by developing the better features of pagan culture to a higher stage. Christian theology was however limited in this process: Augustine and others were understandably deeply impressed by the advances in philosophical understanding made by Plato, but failed to take full account of the more empirically inclined approach taken by Aristotle. Augustine’s pragmatic adaptation of Pauline doctrine to his theory of just war was not an explicit ‘noble lie’ but it nevertheless was something of a half way, half realist measure to resolving the problems of constitutional theory. At the centre of these problems was the question of resistance to tyranny which gradually assumed greater significance following acceptance of the Augustinian theory of just war. The rediscovery of Aristotle during the 12th century enlightenment facilitated a step back from platonic speculation towards a more commonsensical approach and helped concentrate minds more closely upon finding practical solutions to the problematic relation between theology, constitutional order and democratic rights. The Athenian achievement and legacy in establishing democratic order was awakened and strengthened by the bottom up nature of Germanic political customs such as the Anglo Saxon fyrd militias and jury power. Such influences helped preserve the egalitarian tendencies of the early Christian church as a counterweight to the ascendancy of both Papal and royal monarchical claims.
Dispute
These issues preoccupied theologians such as Stephen Langton and the future Pope Innocent III when they studied together in the Paris school.* In distinction to Aristotle, Langton, like Augustine and similarly to Hobbes, did not see man as a political animal but rather as a fallen creature that will never be able to establish a soundly just social order in this world. Consequently political organisation will always need state force, including even tyrannical power, to impose order to prevent the worst of all alternatives: chaos. Christian doctrine accordingly is in large part based upon the insights of Peter and Paul wherein the agents of political power are in some way divinely endorsed to impose such order. Nevertheless in response to the gathering influence of the 12th century renaissance of Aristotle Langton reasoned, along with his teacher at the Paris school Peter the Chanter, that the Pauline doctrine of obedience to rulers in virtually all circumstances could be subject to a process of scholarly ‘dispute’ within the university order beginning to emerge across Europe.
A point of departure regarding the issues involved was the division between ecclesiastical and secular powers and with this the use of force that had been raised by Pope Gelasius I in the 5th century. These questions had been revived at the close of the 11th century by Pope Gregory VII in his investiture conflict with the Holy Roman Emperor Henry IV. Medieval commentary on this question included reference to both old and new testament scripture. Deuteronomy is used by Langton to emphasise the importance of written law, and medieval commentary on Paul is used by him to suggest that if mortal sin is committed in order to obey a bad ruler then resistance to such commands becomes obligatory. In such light some believed the Jews may have been wrong in failing to rescue Christ from crucifixion because they knew him to have performed miracles and so to be the son of God.
A second aspect of the Paris disputes was the ‘two swords’ debate concerning the powers respectively of secular rulers and the Pope. A somewhat obscure reference to Christ being offered two swords at the close of the Last Supper was at the centre of discussion regarding the spiritual and material aspects of church and secular power. What came to be known as the ‘hierocratic’ and ‘dualist’ alternative approaches emerged from debate on this matter. The ‘hierocrats’ maintained that the Constantine Donation had granted the Pope supreme monarchical status within Christianity with authority over the Holy Roman Emperor even with regard to the use of force. However the ‘dualists’ argued that the rule of Emperors had preceded the existence of Christianity and should therefore be accorded in some sense a similarly Holy status.
Langton took something of a middle position in this dispute on the premise of what has been described as a more broadly based and clearly anti-monarchist interpretation. He maintained that the spiritual and secular realms were interconnected and included the Pope, the clergy and the church laity because their participation in Christian life included the election of bishops and abbots; similarly when Kings dubbed their knights of the realm their actions were in any case made valid because they were sanctified under church auspices. A further key issue in Langton’s reasoning was whether decisions made by rulers to use force were adjudicated positively in a court of law before the action was undertaken. At a theological level he derived this in large part from Deuteronomy.
These insights informed Langton’s approach in negotiating with the rebel barons to ask King John to reaffirm the promises upheld by King Henry I in continuity with the legacy of Edward the Confessor. These considerations consequently comprise the chief substance of Magna Carta most especially in regard to its clauses concerning the right to judgment by your peers and due process. Though partly presupposed by Plato’s Noble Lie and its implications regarding the increasing use of realist tactics of diplomacy amid the complex questions of relations between the church, secular forces and rival claims of hereditary power, these issues formed the essential backdrop to Magna Carta. Together they best explain the changing multiple allegiances between factions within Royalty, the Baronial class and the Church.
On a general basis these changes were common and endemic to the medieval period. In the Papal and surrounding city states such as Venice that had survived the Barbarian invasions intricate methods of election incorporating sortition were developed in the medieval period to constrain the influence of factions and to ensure Papal elections could maintain some independence from other feudal monarchs and aristocracies. Though sortition was a system developed to a straightforwardly high degree by the Athenian democracy in its medieval form it’s convoluted parameters were devised rather to serve the interests of secular oligarchies and the Papacy. Notwithstanding these complexities the 1225 version of Magna Carta began to serve as the cornerstone of a program for government based upon consent. Though shorne of the enforcement teeth of the 1215 version the 1225 agreement was nevertheless more broadly oriented to upholding the democratic rights of the whole population. Stephen Langton it seems had achieved a perhaps unrivalled step forward in constitutional development in regard to lawful, peaceful resistance to tyranny.
The right to judgment by grand jury emplaced at the foundation of accountability of state power to law by Magna Carta provided an uncompromising solution to the difficult questions of truth, power, church and secular law that had preoccupied political theology for centuries. Henceforth conflict between legitimacy and tyranny would ultimately be decided by a decision making process that would be itself accountable to no one but a randomly selected group from the general population. Their decisions would be made upon the basis of one criteria: whether they accorded with the conscience of the jurors. In this way all forms of state power, including monarchy, have been rendered subordinate to the penultimate power of democratic justice before ultimate recourse to armed resistance to tyranny.
This provided a reliable foundation upon which to accomplish further advances in the evolution of constitutional theory and popular sentiment to address the main difficulties of democratic development in the centuries to come. More extensive research is needed (e.g. that of the Stephen Langton project at Warsaw University) to ascertain how much of this accomplishment can be attributed to Langton alone and how much involved cooperation by the Pope and other medieval figures. Was Magna Carta in its full import a result of accident or necessity, of luck or design? The results of such research might help explain more fully the origins of Jefferson’s recognition of “trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.”
* References can be supplied on request
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Copyright © Dr. Keith Nilsen, September 2022.
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