The law of the United States of America is based on English Common Law. The English Common Law evolved as a formal set of precedents and named relationships earlier grounded in noblesse oblige, the foundation of feudalism as a valuing culture.
Noblesse oblige, poorly translated into today's English as "the nobility is obliged" or "obligations of nobility", characterized the inter-relationships then prevailing from King to lowliest serf.
The Magna Carta of 1215 C.E. is a codification of essential principles within noblesse oblige. That we have been conditioned to regard feudalism negatively may say more about the interpretations we are taught than the actualities of feudalism.
The conceptual and practical formulations incorporated in English Common Law are founded in the feudalism of the British Isles. The Normans who crossed the English Channel in 1066 and gradually took political control from the natives and the preceding invaders of Angles, Saxons and Nordic-oriented tribes brought noblesse oblige with them. The Norman ideas fit comfortably with the legends and histories of Camelot: King Arthur, the Round Table and its knights in pursuit of the Golden Chalice. The English experiences with noblesse oblige emerged as a set of constraints on arbitrary power of monarch over nobility and, less clearly although no less powerfully, the arbitrary powers of nobility over commoners.
The watershed event in defining and codifying these relationships was the Magna Carta conceded to his fractious barons in 1215 by "John, by the grace of God, King of England, Lord of Ireland, Duke of Normandy, Aquitaine and Count of Anjou," allegedly at Runnymede, near Windsor —actually on an island in the Thames. The nobility was camped on the south shore at Runnymede and King John, nervous about his reception, was camped on the northern shore. The island was neutral territory.
The names of the Bishops and Archbishops, Abbots, Earls, Barons, Justiciaries, Foresters, Sheriffs, Governors, Officers assembled reads as a capsule history of the island and domains — Stephen Henry, William, Hugh, Walter, Peter, Jocelin, Benedict, Aymeric, Constable, Hubert, Warin, FitzHugh and FitzHerbert.
Flowing from the Magna Carta came a concept in English Common Law to be known up until the late nineteenth century and which we now call "Job Property Rights". Job Property Rights emerged from tenants' rights within feudalism. The codification of Job Property Rights paralleled codification of Real Property Rights.
The precedents for Job Property Rights asserted that workers (freemen, villeins, serfs) had a property right to their jobs (tenancies, ploughshare, equipage, wainage) similar to the rights which tenants once enjoyed under feudalism. These Job Property Rights came to codify relationships between what became employers and employees. Some of the concepts involved remain in today's seniority systems, union contracts, labor laws and employee benefits programs.
As real property rights are secured by land title; the surviving residues of Job Property Rights are secured by contracts of entitlement—a distinction to be kept in mind during the present political furies attacking entitlements for the lesser privileged. These furies come from Have-A-Lots past and present and their political adherents who, in parallel, voraciously defend their entitlements as sacred rights.
Lost in today's political and economic circumstances are the concepts of interdependency which underlay feudalism and noblesse oblige. There is little sense of obligation among today's Savage Capitalists much less concepts such as honor and integrity in relations with those landless employees and at-will wage earners who convert the capitalist's "resources" for a pittance and with little or no job security.
The Savage Capitalists are Klingons without honor, to use a Star Trek analogy. They are Knights of the Round Table who seek the Golden Chalice solely to melt it down—an analogy closer to the context of now-gutted assumptions of Noblesse Oblige and the Magna Carta of 1215 C.E.
Economic surplus today, as in the depths of Dickens's and Engel's England, flows away from workers except in increasingly limited situations. The idea of sharing equity or surplus with workers is now fought with nearly unlimited exercises of power and dedication of economic resources to avoid doing so.
That the workers who by their labor convert raw materials into marketable goods provide their exploiters with the money, position and political power to fight them so viciously is ironic.
A great historian, R. W. Taney, in Religion and the Rise of Capitalism (1926), discussing the philosophy of the earlier times, writes:
Property ". . . was limited at every turn by the rights of the community and the obligations of charity. . . . Society is a hierarchy of rights and duties. Law exists to enforce the second [duties], as much as protect the first [rights]. Property is not a mere aggregate of economic privileges, but a responsible office. Its raison d'etre is not only income but service. It is to secure its owner such means, and no more than such means, as may enable him to perform those duties, whether labor on the land, or labor in government, which are involved in the particular status he holds in the system. He who seeks more robs his superiors, or his dependents, or both. He who exploits his property with a single eye to its economic possibilities at once perverts its very essence and destroys his own moral title, he has ‘every man's living and does no man's duty." (pps. 148-149).
The Magna Carta was rewritten in 1225 in what some see as the beginning also of now endless assaults on legal and pragmatic concepts and practices which extend reciprocity between classes such as once were incorporated in noblesse oblige.
Arthur R. Porter in his 1954 book on Job Property Rights notes (paraphrased) that the idea that property was held in trust for the King or God and that consequently there were certain duties and responsibilities involved therein began to be superceded during the eighteenth century [1700s] by the idea of property as a right. There developed the philosophy that an individual had the right to the management of his property (primarily land) for the purpose of pecuniary gain. Little obligation was owed either to the other members of the community, the sovereign, or God (much less to the land itself or to those who have depended upon it) in the control of property. Certain limited restrictions were recognized but these were kept to a minimum and grudgingly conceded.
Check your own memories. Have you ever heard that the Magna Carta protected peasants as well as lords? Have you ever heard that Job Property Rights were once held as parallel rights with Real Property Rights? This equation of rights was anathema to those who would privatize Community Commons for private benefit (the hated "enclosure movement" in England), who destroyed the village-based systems of mutual obligation and personal guarantees of security and fealty which had endured for centuries.
A simple reading of British history since the 1200's (and in many cultures before and since then) shows that every time workers or lesser privileged peoples made some advances or had their roles and rights codified into legal codes; the opposing forces launched furious and concerted campaigns to take them back.
Armed with Darwin's works of the later 1800's, the obsessed Have-A-Lots quickly enlisted their academic adherents to create Social Darwinism, the justification of dominance as survival of the fittest especially within the species of humankind. Charles Dickens's novels provide contemporary documentation of the consequences within English society.
A mutual obligation or right of tenancy, a Job Property Right, may be intangible, less physical or tangible than "real" property, however, it is no less actual. "Real" in terms of property, as in real estate also comes from the past. Real means royal or regal. Real Estate is the property of the royals. Under feudalism, a tenant or serf was guaranteed his tenancy in perpetuity. It was inheritable in the same way that real estate is now inheritable. Tenancy included futurity, job security. Following Arthur Porter's arguments again, the expectation of continued job tenure, assured employment, then is a valuable right. A man could expect to lead an honorable life, to provide for his family.
Arthur Porter says that the abolition of chattel slavery eliminated the economic calculations of tangible value in owning human beings. Value then is transferred to the job which a worker occupies. A man's Job Property Right then may be said to be intangible.
Some assert that this quality of intangibility separates a job per se from valuation in economic terms. Whatever property may be vested in a job is exclusively the property of the employer who may do as he or she sees fit impeded only by minor irritations of law, albeit virtually none of conscience. Those who argue thus also tend to be the same who will vehemently defend value in such areas as "going concern value of a business," or "good will," "patents" and "copyright."
An understanding of the significance of noblesse oblige, tenancy, and the ranges of human experiences involving both recognition and assumption of mutual obligations across status and class distinctions which underlie section 20 of the Magna Carta provide a very different understanding of Adam Smith's moral outrage expressed in The Wealth of Nations. This is another work very, very few have read yet confidently assume they "know" what it contains. The late, quite unlamented, Red Fascists or Soviet Communists might call these people, "Running Dogs of Capitalism."
The lonely years Karl Marx sat in the reading room of the British Library drafting his works make a bit more sense. Das Kapital vol. one was published in 1867. Again as very, very few Americans have ever read even a significant part of Das Kapital, what we "know" of it is very much conditioned by what we are and have been told to know.
Rarely have mere words evoked a more furious and sustained, deeply visceral hatred among the Have-A-Lots of succeeding years. Marx's principal collaborator, financial supporter and posthumous editor of Das Kapital vols two and three, the last published in 1894; Friedrich Engels, was the son of an industrialist who once managed a textile factory in England himself. Engels was vilified as a traitor to his class in ways which only Franklin Delano Roosevelt was later to suffer.
Even today, fifty-three years after FDR's death, is he yet to be honored by more than a tiny bronze plaque at his alma mater, Harvard. A recent article in Harvard magazine brought angry letters of criticism for daring to evoke his memory. Only in 1997 is a very controversial Roosevelt monument finally opened in Washington, D. C.
Engels, fired by outrage worthy of moral philosopher Adam Smith, began his works with his 1844 publication of The Condition of the English Working Class in 1844. Forty years later, he published The Origin of the Family, Private Property, and the State.
As the French are alleged to say, "The more it changes, the more it is the same." Today, the gains made by American and European workers from the late 1800's to mid 1900's have almost disappeared under the relentless legislative assaults; denial, evasion or lack of enforcement of what laws remain; and the operating pogroms of Savage Capitalism. Socialism has been forever tarred by the excesses of the totalitarian regimes of Soviet Communism. Democratic Socialism which has characterized many years of very successful governments in Europe remains virtually unknown in the United States of America. Such is the overweaning control of the Have-A-Lots.
Employees are increasingly at-will, legally temporary or quasi-temporary workers with little job security offered or available. Financial institutions are manipulated to maintain unemployment at levels intimidating to workers. Vast capital investments are committed with the single purpose of minimizing living employees and the obligations which go with them. Millions, worldwide, no longer have any reasonable expectation of either employment at wage levels adequate to maintain family members much less give a job holder honor in her community. Access to the tiniest plot of land slips farther and farther away from more and more people.
Similarly, in the U.S. and other developed economies, entitlements based in employment such as Social Security and health care are under bombardment by the same interests so furiously guarding their entitlements whether "corporate welfare" of "wealthfare".
At stake are the tattered remains of personal and community rights which once characterized English Common Law. Similar and even longer-standing mutual understandings which once undergirded most societies around the world are also under massive assault by the rapid expansion of Savage Capitalism.
The rich and powerful want desperately to free themselves of any residual obligations to lesser humanity. With these internalized furies directed at people (near, other and elsewhere), is it any surprise that every other form of sentience (excepting, perhaps, wholly owned pets) must, in their view, also be controlled and exploited at their discretion?
The Magna Carta or The Great Charter of King John was executed in a brief, one-day encounter on June 15, 1215 C.E. by current reckoning. King John's realm extended across the English Channel to Normandy, Aquitaine and Anjou in present-day northern and western France. The court and academic languages of the time were Latin and a version of earlier French. The "English" language was considered vulgar and without aesthetic qualities. The Holy Roman Church and the Church of England were still essentially one and above temporal authority as was affirmed in the Magna Carta's first section.
In terms of today's legal framework, the guarantees incorporated in sections 36, 39 and 40 are most often cited as those which embodied concepts and practices such as Habeas Corpus (now virtually abandoned in much of American practice), judgment by peers (the jury system) and integrity, impartiality or rule of law (tort or contract inviolability among other matters).
The furious who are bent upon asserted political and economic dominance don't want us to know about section 20.
"Any freeman shall not be amerced for a small offense, but only according to the degree of the offense; and for a great crime according to the heinousness of it, saving him his contenement; and after the same manner a merchant, saving him his merchandise. And a villein shall be amerced after the same manner, saving to him his wainage, if he falls under our mercy; and none of the aforesaid amerciaments shall be assessed but by the oaths of honest men in the neighborhood."
Amerce is to be at someone's mercy, to punish by imposing a fine or any other form of punishment not fixed by statue; therefore, any discretionary or arbitrary penalty. The Magna Carta asserted that no one was above the law.
A villein is a member of a class of partially free persons under the feudal system who were serfs with respect to the their lord but who had rights and privileges of freemen with respect to others.
Villeinage was the tenure by which a villein held land and tenements from his lord.
Villein socage was in the way of definitions of service owed or other ways in which a tenant compensated his lord for tenancy.
A serf was tied to land and to lord. When land was transferred by death, inheritance, marriage or war, the serf went with the land. The rights of tenancy were maintained thereby. This set of relationships, noblesse oblige, we might today call job security. Wainage constitutes the aggregation of equipment and implements which were essential to husbandry. That is, the tools needed to do the job. Wainable meant the land capable of being cultivated or ploughed by a properly equipped villein or serf, a tillable wain being in part a definition of tenancy as the amount of land that a man could maintain which would meet his and his family's needs. Wain later came to mean a wagon or cart. As a measure, a wain was then the area which a wagon or cart could cover in a day.
In some cases mostly in later times, many Russian examples come to mind, as the nobility lapsed into decadence or war destroyed both nobles and serfs; or lands were taken out of production then paved over or put into developments and industrial parks; forests put off-limits then cut down; commons privatized and waterways enclosed, then polluted; serfs, peasants, people suffered and are suffering terribly. Eventually, the systems of feudalism became anachronistic. Have-A- Lots pounced to strip away systems of relationships, inter-dependence, limits and, yes, honor and nobility. Today, with whatever counterbalance may have existing in an opposing super-power gone, the Have-A-Lots are showing their truer colors as Savage Capitalists.
Excerpts from the Magna Carta are taken from:
"An English Translation from the latin of the Magna Carta or The Great Charter of King John," Old South Leaflets, No. 5, published by The National Society Magna Carta Dames, undated.
Some other and newer, yet older,works consulted in the years I have been investigating these issues are:
Job Property Rights, a study of the Job Controls of the International Typographical Union, King's Crown Press, Columbia University, New York, 1954.
Legal Foundations of Capitalism, John R. Commons, New York, 1924
Religion and the Rise of Capitalism, R. H. Tawney, New York, 1926
The Acquisitive Society, R. H. Tawney, New York, 1920
Economics for Beginners, A. D. MacLeod, New York, 1884 (?)
And journal articles by Walton Hamilton, F. W. Coker, W. E. Moore, et al.