Periodically I come across claims by that jews that they invented something in history that they patently did not. One such claim is that made by the best-selling jewish historian and writer from Finland (of all places) Max Isaac Dimont in his 1984 book ‘The Amazing Adventures of the Jewish People’.
That claim is that the jews created the concept of Due Process which then ‘anticipates’ Magna Carta which was first composed and signed in England in 1215 and is famously the foundation of much of the Constitution of the United States of America. (1) It is also the first true formalization of some key concepts of British common law like Due Process.
Dimont claims that:
‘Several of the main provisions of the Magna Carta (1215 C.E.) were concepts already embodied in the Torah or Talmud and introduced in England by the Jews. So, for instance, the due process of law provisions in the Magna Carta were first spelled out by Talmudists in the tenth century C.E. Maimonides stated it this way: “Every law which the king enacts for all… is not robbery. But when the king takes away from one person only, not in accordance with the law known to all… it is robbery.”
The two main provisions of the due process of law – that men have the right to live by laws applicable to all, and that no crime can exist until there is a law forbidding that act to all – were incorporated in the Talmud commentaries for centuries before they were incorporated into the Magna Carta and later into the American constitution.’ (2)
Now as we’ve already seen Magna Carta was not ‘inspired by jewish legal concepts’ at all but rather was based on pre-existing Anglo-Saxon and Norman legal ideas that had been implicit for more than a century by 1215 A.D.; however the reason these had been formalized and written down was to combat the extra-judicial and tyrannical behaviour of jewish moneylenders against the English people. (3)
What I explicitly left out in that article was addressing Dimont’s specific claim that the idea of Due Process comes from ‘concepts embodied in the Torah or Talmud’ and from ‘the Talmudists’. Now Dimont only cites one authority who he claims Magna Carta is copying with that authority being Maimonides (aka Rambam).
The quote Dimont uses is partial and is from Hilchot Gezelah va’Avedah in Maimonides’ Mishneh Torah.
The full quote reads:
‘The general principle is: Any law that a king decrees to be universally applicable, and not merely applying to one person, is not considered robbery. But whenever he takes from one person alone in a manner that does not conform to a known law, but rather seizes the property from the person arbitrarily, it is considered to be robbery. Therefore, when the king’s tax collectors and enforcement officers sell fields because the owner did not pay the fixed tax for the field, the sale is binding.
A head tax, however, is the personal responsibility of each person and it may not be collected from his property. Thus, if a field was sold because an individual was delinquent in paying the head tax, the sale is not binding, unless this is the law enacted by this particular king.’ (4)
Maimonides is here discussing kingship specifically in regard to legal and illegal confiscations and taxation. Dimont claims that this somehow the same as Magna Carta clause 39 – which is otherwise known as the ‘Due Process’ clause and in shorter later editions is sometimes re-numbered to clause 29 – that reads:
‘No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land.’ (5)
They aren’t remotely the same; all Maimonides is saying is that a king must pass laws that must be universally not individually applicable as well as not retroactive, while Magna Carta says that no subject of the state – not just a king – should be imprisoned or be asset stripped/taxed unless he has been found guilty by a jury (‘the lawful judgement of his equals’ largely equating the barons incidentally) or he broke the ‘law of the land’.
The key element here is Magna Carta’s version doesn’t outlaw the individual stripping of assets nor retroactive legalisation as long as it isn’t purely arbitrary (i.e., it can be conducted by a jury of someone’s peers and/or by the state as long as there is just cause), while Maimonides regards such as ‘robbery’ (i.e., illegal).
We can thus see that Maimonides’ idea on this point is far more ‘letter of the law’ rather than ‘spirit of the law’ with his focus being on ‘thou shalt not’ where-as Magna Carta focuses on the ‘spirit of the law’ and on ‘thou shalt’ in the sense that Maimonides wants to arbitrarily rule what is and what is not just, while Magna Carta leaves what is just to ‘the law of the land’ and ‘judgement of equals’ which is what we might call the ‘spirit of justice’.
The former is a typically Semitic point of view as it focuses on the utility of the law for its own sake rather the latter is a typically Aryan point view as it focuses on achieving justice through the application of law, which allows for far more flexibility in the law.
Magna Carta in many ways echoes the then recently rediscovered (c. 1050 to 1100 A.D.) ‘Corpus Iuris Civilis’ (lit. ‘Body of Civil Law’) of Justinian (c. 535 A.D.) which was a compilation of Roman law from the entire history of the Roman Empire from Augustus onwards (6 and contains the following comment on how the law works which embodies the ‘spirit of justice’ of Magna Carta but yet oppose the legalistic fault-finding of Maimonides:
‘Justice is the constant and perpetual desire to give to everyone that to which he is entitled. The precepts of the law are the following: to live honourably, to injure no one, to give to everyone his due.’ (7)
Indeed, it is to the then newly re-discovered ‘Corpus Iuris Civilis’ that we likely owe Magna Carta’s ‘new ideas’ – (8) and even then, they had been kicking around for quite some time among the baronage of England (9) albeit not for as long as later legal English scholars liked to claim – (10) albeit it is difficult to prove conclusively. (11)
So, no despite Dimont’s claim jews did not ‘invent’ or ‘inspire’ the legal idea of Due Process in British common law but rather Roman law did.
References
(1) https://www.archives.gov/exhibits/featured-documents/magna-carta
(2) Max Isaac Dimont, 1984, ‘The Amazing Adventures of the Jewish People’, 1st Edition, Behrman’s Jewish Book House: New York, p. 110
(3) On this please see my article: https://karlradl14.substack.com/p/jewish-invention-myths-magna-carta
(4) Mishneh Torah, Hilchot Gezelah va’Avedah, 5:14
(5) https://sourcebooks.fordham.edu/source/magnacarta.asp
(6) George Mousourakis, 2015, ‘Roman Law and the Origins of the Civil Law Tradition’, 1st Edition, Springer: New York, pp. 243-245
(7) Digest, 1.1.10
(8) R. H. Helmholz, 1999, ‘Magna Carta and the ius commune’, The University of Chicago Law Review, Vol. 66, No. 2, pp. 309-310
(9) George Macaulay Trevelyan, 1926, ‘History of England’, 1st Edition, Longmans, Green & Co.: London, p. 170
(10) R. H. Helmholz, 2016, ‘The Myth of Magna Carta Revisited’, North Carolina Law Review, Vol. 94, No. 5, pp. 1490-1492
(11) Helmholz, ‘Magna Carta and the ius commune’, Op. Cit., pp. 310-311
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