Matthew J. Steilen, SUNY at Buffalo Law School, has posted Magna Carta and the Origins of Legislative Power:
This article argues that Magna Carta has a central place in the development of debate and deliberative politics in parliament. Its focus is chapter 12 of the Magna Carta of 1215, in which the king promised not to levy certain taxes “unless by the common counsel of our realm.” Conventionally these words are interpreted to require consent before levying a tax. Against this view, the article argues that “common counsel” meant public deliberation or debate. The source of these ideas was the cathedral schools, the forerunners of the first European universities. Evidence for this “school theory” of common counsel is presented in two parts. First is a study of the career of Stephen Langton, who taught theology in the cathedral schools of Paris. Langton came to England in 1213 to serve as archbishop of Canterbury, and period sources suggest he played a central role in encouraging dissident barons and negotiating Magna Carta. The article addresses scholarly questions about the reliability of these sources. The second part is a study of London, its government, and political culture. The article argues that London’s political traditions provided a fertile environment for Langton’s advice to the dissident barons about how to pursue their grievances against King John. Finally, the article presents an argument against the conventional interpretation of “common counsel” as a requirement of consent, addressing the meaning of the relevant Latin terms, usage in Magna Carta and related documents, law and practice relating to taxation, theories of kingship, and the meaning of “parliament.”
--Dan Ernst
