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Magna Carta revisited: parchment, guns, and constitutional order

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  • Rajagopalan, Shruti

Abstract

This paper revisits the question of substantive rules versus procedural rules to enforce constitutions. Scholars engaging in positive analysis of constitutional rules argue that procedural rules are more durable and act as better safeguards for constitutional maintenance. Chapter 61 of the Magna Carta, also known as the ‘security clause,’ lays out the procedural component for enforcement of the Charter. The clause provides for a council of twenty-five barons to enforce the Charter, with provisions to choose and replace the members, outline their powers, and constrain executive action. It is therefore puzzling that Chapter 61 is absent in the 1216 issue of the Magna Carta, and all reissues thereafter. On the other hand, substantive protections like Chapter 40 have been maintained through the evolution of constitutional rules over 800 years. It is even more puzzling that the Magna Carta survived for 800 years without the main clause to enforce it. This paper argues that the procedural-versus-substantive distinction is superficial, and instead focuses on polycentric arrangements creating opposing interests, to understand self enforcing constitutions and explain the failure of the 1215 Charter and the longevity of the reissues of the Charter.

Suggested Citation

  • Rajagopalan, Shruti, 2016. "Magna Carta revisited: parchment, guns, and constitutional order," International Review of Law and Economics, Elsevier, vol. 47(S), pages 53-59.
  • Handle: RePEc:eee:irlaec:v:47:y:2016:i:s:p:53-59
    DOI: 10.1016/j.irle.2016.05.008
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    References listed on IDEAS

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    1. William Niskanen, 1990. "Conditions affecting the survivial of constitutional rules," Constitutional Political Economy, Springer, vol. 1(2), pages 53-62, March.
    2. Sonia Mittal & Barry R. Weingast, 2013. "Self-Enforcing Constitutions: With an Application to Democratic Stability In America's First Century," The Journal of Law, Economics, and Organization, Oxford University Press, vol. 29(2), pages 278-302, April.
    3. William Niskanen, 1999. "On the Constitution of a Compound Republic," Constitutional Political Economy, Springer, vol. 10(2), pages 167-175, June.
    4. Weingast, Barry R., 1997. "The Political Foundations of Democracy and the Rule of the Law," American Political Science Review, Cambridge University Press, vol. 91(2), pages 245-263, June.
    5. Richard E. Wagner, . "Parchment, Guns And Constitutional Order," Books, Edward Elgar Publishing, number 384.
    6. Shruti Rajagopalan & Richard Wagner, 2013. "Constitutional craftsmanship and the rule of law," Constitutional Political Economy, Springer, vol. 24(4), pages 295-309, December.
    7. Vanberg, Georg, 2011. "Substance vs. procedure: Constitutional enforcement and constitutional choice," Journal of Economic Behavior & Organization, Elsevier, vol. 80(2), pages 309-318.
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    Cited by:

    1. Williams, Stephen F., 2016. "Words, words, words: The remarkable perseverance of Magna Carta," International Review of Law and Economics, Elsevier, vol. 47(S), pages 67-71.
    2. Young, Andrew T., 2018. "Hospitalitas: Barbarian settlements and constitutional foundations of medieval Europe," Journal of Institutional Economics, Cambridge University Press, vol. 14(4), pages 715-737, August.
    3. Koyama, Mark, 2016. "The long transition from a natural state to a liberal economic order," International Review of Law and Economics, Elsevier, vol. 47(S), pages 29-39.

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    More about this item

    Keywords

    Magna Carta; Constitution; Procedural rules; Self-enforcing constitution; Chapter 61; Security clause;
    All these keywords.

    JEL classification:

    • H11 - Public Economics - - Structure and Scope of Government - - - Structure and Scope of Government
    • K40 - Law and Economics - - Legal Procedure, the Legal System, and Illegal Behavior - - - General
    • N43 - Economic History - - Government, War, Law, International Relations, and Regulation - - - Europe: Pre-1913

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