God Made the Queen?
July 10, 2012 4:52 PM Subscribe
Where does The Queen (of England)'s original authority come from?
I'm looking for the ultimate legal statement that grants authority to the monarchy. Sort of the "because god fuck you" moment -- the root idea buried under all the archaic nonsense.
I've been wondering how they are going to deal with the absurdity of changing to the new guy and am curious if the legal possibility exists of God tapping someone new.
I'm looking for the ultimate legal statement that grants authority to the monarchy. Sort of the "because god fuck you" moment -- the root idea buried under all the archaic nonsense.
I've been wondering how they are going to deal with the absurdity of changing to the new guy and am curious if the legal possibility exists of God tapping someone new.
This is a good history of the monarchy of the United Kingdom.
posted by xingcat at 4:57 PM on July 10, 2012
posted by xingcat at 4:57 PM on July 10, 2012
Best answer: One interesting point in English history that was pretty enlightening for me was the so-called Glorious Revolution of 1688, when a Catholic king was overthrown with the help of English Parliamentarians. Historically, might and the buy-in of the landholders (and later, Parliamentarians) makes the King/Queen.
You could also look into the Bill of Rights and the Acts of Settlement.
posted by muddgirl at 5:01 PM on July 10, 2012 [1 favorite]
You could also look into the Bill of Rights and the Acts of Settlement.
posted by muddgirl at 5:01 PM on July 10, 2012 [1 favorite]
they have a constitutional monarchy, the UK is a theocratic, representative government. they believe the monarch is appointed by divine right, and her majesty's ministers et al swear an oath of fealty when they're appointed.
that being said, it would take very little to oust them. the fact that the UK had a more representative government at the time when the rest of europe ousted their kings is what's kept them in kippers and curtains. though every few years (like at prince william's wedding) there is talk about republicanism.
posted by camdan at 5:02 PM on July 10, 2012
that being said, it would take very little to oust them. the fact that the UK had a more representative government at the time when the rest of europe ousted their kings is what's kept them in kippers and curtains. though every few years (like at prince william's wedding) there is talk about republicanism.
posted by camdan at 5:02 PM on July 10, 2012
Best answer: Conquest. That's what 1066 is about. The conqueror has right to be the monarch, and that was passed onto his heirs. The Act of Settlement sets out who exactly are the heirs.
posted by Jehan at 5:04 PM on July 10, 2012 [4 favorites]
posted by Jehan at 5:04 PM on July 10, 2012 [4 favorites]
"Absurdity of changing to the new guy?" There will be nothing at all absurd, from a historical perspective, about Charles becoming King of England when Elizabeth II dies. It's incredibly straightforward. Why Charles? Because he's the next in line according to laws laid downby Parliament.
There are two ways to answer your question: One is "Because England has a monarch, that's why" - there is nothing as formal and legalistic as, say, the American Constitution. The other is "Because Parliament said so." The rules of Succession are laid down by Parliament and not God directly. That is, while the Monarch may be head of the Church of England and may be styled "By Grace of God King (etc etc)," there is no serious claim that the Monarch's authority is derived directly from a divine appointment.
Charles will be King because he's next in line, because Parliament said so.
posted by Tomorrowful at 5:05 PM on July 10, 2012 [2 favorites]
There are two ways to answer your question: One is "Because England has a monarch, that's why" - there is nothing as formal and legalistic as, say, the American Constitution. The other is "Because Parliament said so." The rules of Succession are laid down by Parliament and not God directly. That is, while the Monarch may be head of the Church of England and may be styled "By Grace of God King (etc etc)," there is no serious claim that the Monarch's authority is derived directly from a divine appointment.
Charles will be King because he's next in line, because Parliament said so.
posted by Tomorrowful at 5:05 PM on July 10, 2012 [2 favorites]
The wikipedia page on the divine right of kings lays it out pretty clearly and credits Jean Bodin.
The initial authority of the monarch is sort of axiomatic in a monarchy and I'm not sure an explicit justification is ever made.
posted by pseudonick at 5:06 PM on July 10, 2012 [1 favorite]
The initial authority of the monarch is sort of axiomatic in a monarchy and I'm not sure an explicit justification is ever made.
posted by pseudonick at 5:06 PM on July 10, 2012 [1 favorite]
There's an awful lot of law which establishes the English crown, not a huge amount which deals with the separate existence of Wales (or, previously, Ireland), but plenty which deals with the union with Scotland.
Because the tone of the question appears fairly hostile to the idea of a constitutional monarchy, I don't really know where to start. Suffice to say that the UK is a functioning free society with no huge areas of concern re: civil liberties. The Magna Carta and the Bill of Rights are important parts of the English constitution. I presume the Act of Union with Scotland covers similar constitutional ground in one place, too. The laws of succession are also codified.
posted by ambrosen at 5:08 PM on July 10, 2012
Because the tone of the question appears fairly hostile to the idea of a constitutional monarchy, I don't really know where to start. Suffice to say that the UK is a functioning free society with no huge areas of concern re: civil liberties. The Magna Carta and the Bill of Rights are important parts of the English constitution. I presume the Act of Union with Scotland covers similar constitutional ground in one place, too. The laws of succession are also codified.
posted by ambrosen at 5:08 PM on July 10, 2012
am curious if the legal possibility exists of God tapping someone new.You mean someone other than the current Prince of Wales?
If so, not really. I mean, theoretically, sure. He could die first, or become a Catholic, or something like that. Or the legislatures of all of the Commonwealth countries could change the law that governs the succession (it cannot be done without the consent of all of them). Other than things like that, it's pretty much set in stone, by law.
Here's a Wikipedia article on the succession.
posted by Flunkie at 5:09 PM on July 10, 2012
I think it's important to recognize that the legal effect of a constitution is a grant of power from the people to its government. Consequently, if the current monarchy derives its power from the constitution, then the source of power is the people who are governed by it.
So then, to answer your question, work your way back through UK constitutional history, and the transition from absolute to constitutional monarchy. As noted above, that gets you back to the Glorious Revolution, Magna Carta, etc; go back far enough, and you get to conquest.
posted by Dr. Zira at 5:10 PM on July 10, 2012
So then, to answer your question, work your way back through UK constitutional history, and the transition from absolute to constitutional monarchy. As noted above, that gets you back to the Glorious Revolution, Magna Carta, etc; go back far enough, and you get to conquest.
posted by Dr. Zira at 5:10 PM on July 10, 2012
The other is "Because Parliament said so."This is circular. The Parliament gets its rights from the monarch, hence the presence of the mace, which is the symbol of the monarch's authority.
posted by Jehan at 5:13 PM on July 10, 2012
The Wikipedia article on the "Constitution of the United Kingdom" is about a concise of a summary as any of the patchwork of laws that is the framework of the unwritten constitution and the section entitled "Disputes about the nature of the UK Constitution" includes a bit of discussion for and against codification of a constitution.
posted by Dr. Zira at 5:25 PM on July 10, 2012
posted by Dr. Zira at 5:25 PM on July 10, 2012
Jehan misses a major point. In all other monarchies, I mean every other, it is a given that the monarch has a right to rule - just because he does. Call it divine right, call it the exercise of power - it is his right.
Only in Britain has it become accepted that Parliament has the power to define how the rights of succession will occur. And that power goes way, way back, beyond the Glorious Revolution, to King John and the barons, which led to the signing of Magna Carta.
Parliament does not derive its rights from the monarch. They are derived from the people.
(In the U.S., the House of Representatives and the Senate do not have "rights". They have powers. Only the people have "rights". I do not try to declare whether the same is true of Parliament, but it is a momentous difference.)
posted by yclipse at 5:26 PM on July 10, 2012 [2 favorites]
Only in Britain has it become accepted that Parliament has the power to define how the rights of succession will occur. And that power goes way, way back, beyond the Glorious Revolution, to King John and the barons, which led to the signing of Magna Carta.
Parliament does not derive its rights from the monarch. They are derived from the people.
(In the U.S., the House of Representatives and the Senate do not have "rights". They have powers. Only the people have "rights". I do not try to declare whether the same is true of Parliament, but it is a momentous difference.)
posted by yclipse at 5:26 PM on July 10, 2012 [2 favorites]
Parliament gets its rights from the monarch
Yes, but the historical basis for this (in 1660 and particularly 1689) comes from Parliament asserting its right to say that it gets its rights from the monarch, and the strings are attached on the monarch's side. If you look at the text of the 1689 Bill of Rights, you'll notice (if you're an American) the structural resemblance to a certain document very much under consideration last week, but it's also performing a neat little rhetorical finesse with respect to agency.
posted by holgate at 5:31 PM on July 10, 2012 [1 favorite]
Yes, but the historical basis for this (in 1660 and particularly 1689) comes from Parliament asserting its right to say that it gets its rights from the monarch, and the strings are attached on the monarch's side. If you look at the text of the 1689 Bill of Rights, you'll notice (if you're an American) the structural resemblance to a certain document very much under consideration last week, but it's also performing a neat little rhetorical finesse with respect to agency.
posted by holgate at 5:31 PM on July 10, 2012 [1 favorite]
Only in Britain has it become accepted that Parliament has the power to define how the rights of succession will occur. And that power goes way, way back, beyond the Glorious Revolution, to King John and the barons, which led to the signing of Magna Carta.No, this is not legally true. It might be morally true, but not legally. All acts of Parliament require royal assent. Even the Magna carta has royal assent, because John sat down at Runymede and signed it!
Parliament does not derive its rights from the monarch. They are derived from the people.
posted by Jehan at 5:32 PM on July 10, 2012
Response by poster: Sorry if the question is a bit ignorant and hostile(to constitutional monarchy). Great answers though. I didn't mean the new guy would be absurd historically, just rationally.
I realize this question sounds a bit like trolling. Just curious if there exists a written law that escapes this, what Jehan points out, circular logic and establishes some reason that this particular bloodline has authority for some reason. I am very much a layman when it comes to the history of the UK.
posted by goat at 5:39 PM on July 10, 2012
I realize this question sounds a bit like trolling. Just curious if there exists a written law that escapes this, what Jehan points out, circular logic and establishes some reason that this particular bloodline has authority for some reason. I am very much a layman when it comes to the history of the UK.
posted by goat at 5:39 PM on July 10, 2012
The monarch is part of Parliament. The UK has parliamentary sovereignty.
posted by grouse at 5:41 PM on July 10, 2012
posted by grouse at 5:41 PM on July 10, 2012
Yes, Jehan, but who consents to allow the monarchy to exercise the power of royal assent and permits the monarchy to exercise any reserve powers?
posted by Dr. Zira at 5:42 PM on July 10, 2012
posted by Dr. Zira at 5:42 PM on July 10, 2012
Just curious if there exists a written law that escapes this, what Jehan points out, circular logic and establishes some reason that this particular bloodline has authority for some reason.
Yes, that's the Act of Settlement, which picked this particular bloodline over other options, when the ruler died without 'issue'.
The Commonwealth nations just agreed on a new succession bill stating that the eldest daughter could rule in preference of her brother (in case Will and Kate have a little girl first). It also got rid of the "No Catholics" rule.
posted by muddgirl at 5:45 PM on July 10, 2012 [3 favorites]
Yes, that's the Act of Settlement, which picked this particular bloodline over other options, when the ruler died without 'issue'.
The Commonwealth nations just agreed on a new succession bill stating that the eldest daughter could rule in preference of her brother (in case Will and Kate have a little girl first). It also got rid of the "No Catholics" rule.
posted by muddgirl at 5:45 PM on July 10, 2012 [3 favorites]
Well, the "No Catholic spouses" rule. The monarch him/herself still needs to be C.O.E.
posted by muddgirl at 5:47 PM on July 10, 2012
posted by muddgirl at 5:47 PM on July 10, 2012
Just curious if there exists a written law that escapes this, what Jehan points out, circular logic and establishes some reason that this particular bloodline has authority for some reason.
The Act of Settlement rather arbitrarily enacts Sophia Electress of Hanover "and the Heirs of Her Body being Protestants" will thenceforth succeed to the Crown. They wouldn't have immediately succeeded to the Crown before the Act. Parliament can change the succession again.
posted by grouse at 5:47 PM on July 10, 2012
The Act of Settlement rather arbitrarily enacts Sophia Electress of Hanover "and the Heirs of Her Body being Protestants" will thenceforth succeed to the Crown. They wouldn't have immediately succeeded to the Crown before the Act. Parliament can change the succession again.
posted by grouse at 5:47 PM on July 10, 2012
I realize this question sounds a bit like trolling. Just curious if there exists a written law that escapes this, what Jehan points out, circular logic and establishes some reason that this particular bloodline has authority for some reason. I am very much a layman when it comes to the history of the UK.When Edward died in 1066 the Witangemot chose Harold Godwinsson to be king, which they believed themselves to have the power to do. William invaded and became the king of England through his own force. Every monarch since then has argued for their right as monarch through being his descendant. That's it, in a nutshell.
posted by Jehan at 5:54 PM on July 10, 2012 [1 favorite]
I'm looking for the ultimate legal statement that grants authority to the monarchy.
There isn't one. There have been several Acts of Parliament, like the Act of Settlement, which choose a monarch, but there isn't one that commences the monarchy, because the Houses of Lords and Commons haven't existed as long as the monarchy has. They came into existence over the centuries and eventually usurped ultimate executive authority from the monarch in the seventeenth century.
The first English king became king by kicking more ass than anyone else in the neighborhood. From then on, anyone who kicked enough ass got to be king. Eventually, the people whose asses were getting kicked got a bit sore about it, hence the seventeenth century.
That's about all there is to it.
posted by valkyryn at 6:02 PM on July 10, 2012 [3 favorites]
There isn't one. There have been several Acts of Parliament, like the Act of Settlement, which choose a monarch, but there isn't one that commences the monarchy, because the Houses of Lords and Commons haven't existed as long as the monarchy has. They came into existence over the centuries and eventually usurped ultimate executive authority from the monarch in the seventeenth century.
The first English king became king by kicking more ass than anyone else in the neighborhood. From then on, anyone who kicked enough ass got to be king. Eventually, the people whose asses were getting kicked got a bit sore about it, hence the seventeenth century.
That's about all there is to it.
posted by valkyryn at 6:02 PM on July 10, 2012 [3 favorites]
The Commonwealth nations just agreed on a new succession bill
In principle. The Statute of Westminster's conventions, though not binding, are upheld by Commonwealth realms (the Commonwealth nations where HMQ is head of state) and any changes need to be put into law more or less simultaneously to avoid discrepancies. Since the UK hasn't got round to it yet, everywhere else is on hold.
posted by holgate at 6:16 PM on July 10, 2012
In principle. The Statute of Westminster's conventions, though not binding, are upheld by Commonwealth realms (the Commonwealth nations where HMQ is head of state) and any changes need to be put into law more or less simultaneously to avoid discrepancies. Since the UK hasn't got round to it yet, everywhere else is on hold.
posted by holgate at 6:16 PM on July 10, 2012
Mod note: No jokes rule still applies folks, try to stay on topic? Thanks.
posted by jessamyn (staff) at 6:16 PM on July 10, 2012
posted by jessamyn (staff) at 6:16 PM on July 10, 2012
Response by poster: The Act of Settlement doesn't seem give the why of it. I was hoping one of the original monarchs would have made them codify his/her awesomeness. This seems really complicated and that is probably the point. Thanks for the great history lesson and god save the new guy.
posted by goat at 6:18 PM on July 10, 2012
posted by goat at 6:18 PM on July 10, 2012
ycliplse: In all other monarchies, I mean every other, it is a given that the monarch has a right to rule - just because he does. Call it divine right, call it the exercise of power - it is his right. Only in Britain has it become accepted that Parliament has the power to define how the rights of succession will occur.
This is not accurate. The right of succession can be redefined by elected legislatures or by constitutional amendment in other constitutional monarchies as well, for example the Netherlands, the Scandinavian countries and Spain.
In the Netherlands, the legislature can actually remove the monarch from office if he or she is deemed unfit. Presumably the UK Parliament could do the same, but I don't believe there is an explicit provision allowing them to do it.
In Denmark (which has an older line of succession than Britain) there is an Act of Succession passed in 1953, and the constitutions provides for the election of a new king should the current line have no eligible descendants. Also, Denmark has equal primogeniture since 2009, something the Brits have still not gotten around to. Norway has had it since 1990.
Sweden started out with an elective monarchy which became hereditary in the 1500s — however, over time this monarchy lost all powers and today is purely ceremonial. So much for "just because he does".
posted by beagle at 6:27 PM on July 10, 2012 [2 favorites]
This is not accurate. The right of succession can be redefined by elected legislatures or by constitutional amendment in other constitutional monarchies as well, for example the Netherlands, the Scandinavian countries and Spain.
In the Netherlands, the legislature can actually remove the monarch from office if he or she is deemed unfit. Presumably the UK Parliament could do the same, but I don't believe there is an explicit provision allowing them to do it.
In Denmark (which has an older line of succession than Britain) there is an Act of Succession passed in 1953, and the constitutions provides for the election of a new king should the current line have no eligible descendants. Also, Denmark has equal primogeniture since 2009, something the Brits have still not gotten around to. Norway has had it since 1990.
Sweden started out with an elective monarchy which became hereditary in the 1500s — however, over time this monarchy lost all powers and today is purely ceremonial. So much for "just because he does".
posted by beagle at 6:27 PM on July 10, 2012 [2 favorites]
Yes, Jehan, but who consents to allow the monarchy to exercise the power of royal assent and permits the monarchy to exercise any reserve powers?That's a moral argument, surely? Just because the people have the actual power to prevent the monarchy in any of its actions, it doesn't mean that the monarchy is not lawfully recognized at the origin of sovereignty.
The Act of Settlement doesn't seem give the why of it. I was hoping one of the original monarchs would have made them codify his/her awesomeness.To be fair, the question of who should be king next wasn't resolved properly until 1485.
posted by Jehan at 6:48 PM on July 10, 2012
A very interesting video explaining just how loosing the current royal family would effect the British Economy which in no way related directly to your question but might give you some idea of the effects if a Diety of some sort did decide to pick a new family to rule. The guy who made it explains a lot of very complicated political information well in his different videos, maybe if you contact him he'd make a one explaining what you want to know.
posted by wwax at 7:07 PM on July 10, 2012
posted by wwax at 7:07 PM on July 10, 2012
it doesn't mean that the monarchy is not lawfully recognized at the origin of sovereignty.
But the fact that Parliamentarians won the English Civil War (and, later, that they deposed one king and instituted another) does. It's not a moral argument - if the parliament does not have shared sovereignty, then the Glorious Revolution was an illegal act and the U.K. is headed by an illegitimate monarch, no?
posted by muddgirl at 7:14 PM on July 10, 2012
But the fact that Parliamentarians won the English Civil War (and, later, that they deposed one king and instituted another) does. It's not a moral argument - if the parliament does not have shared sovereignty, then the Glorious Revolution was an illegal act and the U.K. is headed by an illegitimate monarch, no?
posted by muddgirl at 7:14 PM on July 10, 2012
The Act of Settlement doesn't seem give the why of it.
That's more along the lines of "monarchy's what we do, and parliamentary monarchy is what works for us." Looking at the later 1600s: it's not Sun King monarchy, which establishes a political model to promulgate the ideology of divine right by centralising the state on Versailles and curtailing the feudal autonomy of the aristocracy; it's not the loose confederation with increasingly monarchic characteristics found in the Netherlands that provides England with a Protestant king (stadtholder Willem III van Oranje) in 1688.
It's supreme authority as defined by an institution that, in the space of forty years, chopped off a king's head, invited back his oldest son, kicked out his second son, and gave the crown to two of his grandchildren as a husband-and-wife pair.
posted by holgate at 8:25 PM on July 10, 2012
That's more along the lines of "monarchy's what we do, and parliamentary monarchy is what works for us." Looking at the later 1600s: it's not Sun King monarchy, which establishes a political model to promulgate the ideology of divine right by centralising the state on Versailles and curtailing the feudal autonomy of the aristocracy; it's not the loose confederation with increasingly monarchic characteristics found in the Netherlands that provides England with a Protestant king (stadtholder Willem III van Oranje) in 1688.
It's supreme authority as defined by an institution that, in the space of forty years, chopped off a king's head, invited back his oldest son, kicked out his second son, and gave the crown to two of his grandchildren as a husband-and-wife pair.
posted by holgate at 8:25 PM on July 10, 2012
Best answer: Jehan: "That's a moral argument, surely? Just because the people have the actual power to prevent the monarchy in any of its actions, it doesn't mean that the monarchy is not lawfully recognized at the origin of sovereignty."
Nope, it's a legal argument, but I think we're agreeing but just speaking different languages. I agree with you, to the extent your answer is that the legal underpinnings of sovereignty of the modern UK government (including monarchy) trace back to conquest. Conquest is typically justified by a moral argument (divine right of kings, manifest desitiny,etc.) in order to convince the governed of the legitimacy of the governor, but those moral arguments shouldn't be confused for valid legal bases for sovereignty. My point there was that generally, colonialism starts with conquest because before you hold lawful, recognized title to property, you have to acquire sovereignty through conquest and/or occupation, but for the most part, it's not a viable, stable form of government without consent of the governed. The governed have two choices; they can either resist or accept governance. In order for a governor to govern peacefully, they have to convince the governed to grant them the power, and historically, tyranny has a poor track record, which is why you see the evolution of what is now the UK (as well as other European countries) into a constitutional, rather than absolute monarchy. UK has a constitution, albeit an unwritten one (which is what makes the UK unique) in which (roughly) the legal foundation is considered to be certain inalienable human rights reserved to the people, who have in turn consented to grant Parliament and the monarchy certain powers of governance. As an American, I'm happy to be corrected, though, if someone more familiar with the web of UK constitutional law wants to present a legal argument for the OP's consideration that there are still powers reserved to the monarchy that would trump the powers reserved to UK citizens.
tl;dr, Getting back to the OP's question, which I sort of interpreted as asking about original legal authority versus current legal authority, I would answer "originally conquest, but now the people through a 'constitution'".
posted by Dr. Zira at 8:36 PM on July 10, 2012
Nope, it's a legal argument, but I think we're agreeing but just speaking different languages. I agree with you, to the extent your answer is that the legal underpinnings of sovereignty of the modern UK government (including monarchy) trace back to conquest. Conquest is typically justified by a moral argument (divine right of kings, manifest desitiny,etc.) in order to convince the governed of the legitimacy of the governor, but those moral arguments shouldn't be confused for valid legal bases for sovereignty. My point there was that generally, colonialism starts with conquest because before you hold lawful, recognized title to property, you have to acquire sovereignty through conquest and/or occupation, but for the most part, it's not a viable, stable form of government without consent of the governed. The governed have two choices; they can either resist or accept governance. In order for a governor to govern peacefully, they have to convince the governed to grant them the power, and historically, tyranny has a poor track record, which is why you see the evolution of what is now the UK (as well as other European countries) into a constitutional, rather than absolute monarchy. UK has a constitution, albeit an unwritten one (which is what makes the UK unique) in which (roughly) the legal foundation is considered to be certain inalienable human rights reserved to the people, who have in turn consented to grant Parliament and the monarchy certain powers of governance. As an American, I'm happy to be corrected, though, if someone more familiar with the web of UK constitutional law wants to present a legal argument for the OP's consideration that there are still powers reserved to the monarchy that would trump the powers reserved to UK citizens.
tl;dr, Getting back to the OP's question, which I sort of interpreted as asking about original legal authority versus current legal authority, I would answer "originally conquest, but now the people through a 'constitution'".
posted by Dr. Zira at 8:36 PM on July 10, 2012
I was hoping one of the original monarchs would have made them codify his/her awesomeness.
Nope, because that's not how the legal system worked back then. The obsession with codifying everything is quite modern. Remember, printing was only invented in the fifteenth century. Before that, the common law was almost entirely unwritten, and the distinction between "law" and "custom" was minimal. Even reports of case decisions only go back to the Year Books in the thirteenth century, whereas the English monarchy goes back until the eighth century. So there's five-odd hundred years of law there that just wasn't written down anywhere.
So yes, there were statutes enacted before printing, but not that many, and I don't think we have any written laws that go the whole way back.
posted by valkyryn at 5:42 AM on July 11, 2012 [1 favorite]
Nope, because that's not how the legal system worked back then. The obsession with codifying everything is quite modern. Remember, printing was only invented in the fifteenth century. Before that, the common law was almost entirely unwritten, and the distinction between "law" and "custom" was minimal. Even reports of case decisions only go back to the Year Books in the thirteenth century, whereas the English monarchy goes back until the eighth century. So there's five-odd hundred years of law there that just wasn't written down anywhere.
So yes, there were statutes enacted before printing, but not that many, and I don't think we have any written laws that go the whole way back.
posted by valkyryn at 5:42 AM on July 11, 2012 [1 favorite]
It's not a moral argument - if the parliament does not have shared sovereignty, then the Glorious Revolution was an illegal act and the U.K. is headed by an illegitimate monarch, no?
This view is called Jacobitism.
posted by Clandestine Outlawry at 7:01 AM on July 11, 2012
This view is called Jacobitism.
posted by Clandestine Outlawry at 7:01 AM on July 11, 2012
Valkyryn wrote that "The obsession with codifying everything is quite modern. Remember, printing was only invented in the fifteenth century. Before that, the common law was almost entirely unwritten, and the distinction between 'law' and 'custom' was minimal."
That's not quite so. England had relatively little statute law in the Middle Ages, but elsewhere in Europe, things were different. In much of the Continent, the Roman civil law, as gathered together in the Corpus iuris civilis in the age of Justinian, was held to be a model for positive law, even if it wasn't necessarily binding, and its study was one of the two main branches of law in the universities that developed in the high Middle Ages, beginning in the late 11th and 12th centuries. The other branch was canon law, i.e. the law of the western Church; Gratian, active in the first half of the 12th century, codified it into a body of canon law analogous to the Roman civil law. Those who studied Church law were canonists, while experts in Roman law were "civilians" (i.e. students of the civil law).
Also, as J. G. A. Pocock argued in his pathbreaking book The Ancient Constitution and the Feudal Law, the idea that there was little distinction between law and custom in the Middle Ages is in good part an idea that was invented by late Elizabethan common lawyers such as Edward Coke, who projected their own institutions into an immemorial past.
More generally, the high Middle Ages (c. 10th-12th centuries) saw a marked shift, in England as elsewhere in Europe, "from memory to written record" (the title of an important book on the subject by Michael Clanchy). Domesday Book was a written survey of land tenures that were often unrecorded before it. Courts began to put more weight on written proofs than on the oral testimony of local notables. It's been estimated that as much as a third, possibly more, of medieval charters are forgeries--in large part because people began to feel that they needed written proof of privileges that they had initially been granted orally or by use of custom.
Printing, along with the centralization of administration in the 15th and 16th centuries, speeded up this process, but it was already underway earlier. What's striking about England is how long the common law resisted. Even Lord Mansfield's decision in the 1772 Somersett case, which effectively abolished slavery in England (though not the slave trade), was delivered orally and never officially published.
To get back to the original question, though: the idea of the divine right of kings was relatively recent. Jean Bodin has been mentioned above as an important developer of the idea; Bodin was active in the second half of the 16th century. One source of tension between James VI and I and his new English subjects after his accession to the English throne in 1603 was that he, and his successor Charles, put much more emphasis on their rule by divine right than their Tudor predecessors had done. (Richard S. Dunn mentioned this point in his excellent survey of The Age of Religious Wars, 1559-1715.) But the pattern was more general, as Quentin Skinner showed in his classic book The Foundations of Modern Political Thought.
The idea that monarchy, whether hereditary or elective, was a natural form of government, on the other hand, and the corollary that God favors the monarch, was much older. It wouldn't have occurred to a medieval Englishman or Englishwoman to demand a document establishing the legitimacy of the monarchy per se, though there certainly were documents, from Magna Carta on, limiting the monarch's powers or succession.
posted by brianogilvie at 8:16 AM on July 11, 2012 [5 favorites]
That's not quite so. England had relatively little statute law in the Middle Ages, but elsewhere in Europe, things were different. In much of the Continent, the Roman civil law, as gathered together in the Corpus iuris civilis in the age of Justinian, was held to be a model for positive law, even if it wasn't necessarily binding, and its study was one of the two main branches of law in the universities that developed in the high Middle Ages, beginning in the late 11th and 12th centuries. The other branch was canon law, i.e. the law of the western Church; Gratian, active in the first half of the 12th century, codified it into a body of canon law analogous to the Roman civil law. Those who studied Church law were canonists, while experts in Roman law were "civilians" (i.e. students of the civil law).
Also, as J. G. A. Pocock argued in his pathbreaking book The Ancient Constitution and the Feudal Law, the idea that there was little distinction between law and custom in the Middle Ages is in good part an idea that was invented by late Elizabethan common lawyers such as Edward Coke, who projected their own institutions into an immemorial past.
More generally, the high Middle Ages (c. 10th-12th centuries) saw a marked shift, in England as elsewhere in Europe, "from memory to written record" (the title of an important book on the subject by Michael Clanchy). Domesday Book was a written survey of land tenures that were often unrecorded before it. Courts began to put more weight on written proofs than on the oral testimony of local notables. It's been estimated that as much as a third, possibly more, of medieval charters are forgeries--in large part because people began to feel that they needed written proof of privileges that they had initially been granted orally or by use of custom.
Printing, along with the centralization of administration in the 15th and 16th centuries, speeded up this process, but it was already underway earlier. What's striking about England is how long the common law resisted. Even Lord Mansfield's decision in the 1772 Somersett case, which effectively abolished slavery in England (though not the slave trade), was delivered orally and never officially published.
To get back to the original question, though: the idea of the divine right of kings was relatively recent. Jean Bodin has been mentioned above as an important developer of the idea; Bodin was active in the second half of the 16th century. One source of tension between James VI and I and his new English subjects after his accession to the English throne in 1603 was that he, and his successor Charles, put much more emphasis on their rule by divine right than their Tudor predecessors had done. (Richard S. Dunn mentioned this point in his excellent survey of The Age of Religious Wars, 1559-1715.) But the pattern was more general, as Quentin Skinner showed in his classic book The Foundations of Modern Political Thought.
The idea that monarchy, whether hereditary or elective, was a natural form of government, on the other hand, and the corollary that God favors the monarch, was much older. It wouldn't have occurred to a medieval Englishman or Englishwoman to demand a document establishing the legitimacy of the monarchy per se, though there certainly were documents, from Magna Carta on, limiting the monarch's powers or succession.
posted by brianogilvie at 8:16 AM on July 11, 2012 [5 favorites]
The idea that monarchy, whether hereditary or elective, was a natural form of government, on the other hand, and the corollary that God favors the monarch, was much older.
This is the key. It's true that Europeans on the continent had been writing down laws for a while, and it's true that the English started writing things down more and more often in the tenth century onward, but the English monarchy had already existed for several centuries at that point.
Remember, the constitution of the U.K. does not exist as a discrete document. Never has. It's more a set of principles embodied in multiple documents--and practices!--which has evolved over time. There's not really any concept of a particular law being "unconstitutional," because the constitution is defined by custom, history, and precedent rather than any particular document.
Simply put: there is no initiating document for the English monarchy. At least not as far as we can tell. And the idea that there should have been one would have been strange to the people who might have drafted it.
posted by valkyryn at 9:15 AM on July 11, 2012
This is the key. It's true that Europeans on the continent had been writing down laws for a while, and it's true that the English started writing things down more and more often in the tenth century onward, but the English monarchy had already existed for several centuries at that point.
Remember, the constitution of the U.K. does not exist as a discrete document. Never has. It's more a set of principles embodied in multiple documents--and practices!--which has evolved over time. There's not really any concept of a particular law being "unconstitutional," because the constitution is defined by custom, history, and precedent rather than any particular document.
Simply put: there is no initiating document for the English monarchy. At least not as far as we can tell. And the idea that there should have been one would have been strange to the people who might have drafted it.
posted by valkyryn at 9:15 AM on July 11, 2012
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posted by driley at 4:56 PM on July 10, 2012 [2 favorites]