Professor William R. Long
I will concern myself with two topics on this page: a review (with further reflections) on Aquinas and a brief presentation of the structure of Blackstone's presentation on "Of the Nature of Laws in General" in the First Edition of his Commentaries on the Laws of England.
I think the most fruitful part of our discussion of Aquinas was the chart that we created (your comments helped focus the discussion on it) regarding how Aquinas relates the Eternal Law, Natural Law, Divine Law and Human Law. The Eternal Law is the mind of God, inaccessible to us, which contains all other expressions of law. Scripture is Divine Law, teaching us precisely what God requires in words. Yet, the Natural Law is "imprinted" in all people, and shares in the Eternal Law by "participation." In Question 94, art. 3 Aquinas stresses that the "first principle" upon which the natural law is based is "good is to be done and pursued, and evil is to be avoided." From this principle flow three specific rules--what I called the preservative, the procreative and the knowledge- and justice-seeking inclinations.
Today we will focus on Q.94, art. 4, "Whether the Natural Law is the Same in All Men?", Q.95, art. 1, "Whether It Was Useful for Laws to Be Framed by Men?", Q. 95, art 2, "Whether Every Human law is Derived from the Natural Law?", and Q. 96, art. 2, "Whether it Belongs to the Human Law to Repress All Vices?". You should also note his treatment in Q. 92, art. 2. on the four functions of law: as command, prohibition, permission or punishment. One interesting contrast between Blackstone and Aquinas is that the former will focus almost all of his attention on the final category of Aquinas (the "Human Law," which Blackstone calls the "Municipal Law") while Aquinas, though mentioning Human Law, seems more interested in Natural Law. After all, he is not legislating or describing the laws of any one jurisdiction.
Blackstone is an 18th century English writer, who wrote his four volume Commentaries on the Laws of England just before the American Revolution (1765-69). He was the first lecturer on law in an English university (Oxford), and in the first chapter of vol. 1 he makes the case for why law is a proper study not just for those who have legal claims to bring but for all who want a general humanistic education. Make no mistake about it, however. Blackstone is fully committed to the "glories" of the common law; he argues that it has a "symmetry" to it and a balance in it that assures the maintenance of societal norms and harmony. In this regard he is no fan of statutory law; I think he sees statutes, in general, as complicating the common law. Jeremy Bentham will have some very pointed things to say about this, as I hope we see next week.
The second chapter of vol. 1 treats "Of the Nature of Laws in General." It is his "take" on natural law and its relevance to his study. His focus will be on the actual laws of England rather than natural law, but he places himself fully in the natural law tradition in this chapter. Here is the flow of the chapter.
I. The Four Kinds of Law (pages 38-44). Note how he changes Aquinas' categories a bit. Three of the four categories are the same: Divine Law (Scripture), Natural Law and Human Law (which Blackstone calls "Municipal Law"), but Blackstone drops the Eternal Law of Aquinas in favor of a "Jus Gentium," a law of the nations. That is, Blackstone recognizes what has happened in law in the five hundred years since Aquinas: it has become internationalized. Grotius, Puffendorf, Bodin, Barbeyrac and others contributed to the rise of this subject, and the economic ambitions of the Spanish, Dutch, and English, above all, fueled the development of what we today would call "International Law."
[*The concept of the "ius gentium" does not originate in the 18th or 17th centuries, but goes back to antiquity. Its ultimate roots are in Stoic philosophy, but the Roman jurists of the first few centuries of the common era are the first to mention it with respect to law....this note is thanks to a reader, Joseph Theranger].
We see immediately that he is not the level of philosopher as Aquinas is, even though he is a lucid and thoughtful writer. In addition, we also note the greater stress on the corruption of human reason (p. 41, bottom) in Blackstone than in Aquinas. This corruption of reason makes it more difficult to discern what natural law requires in any specific instance.
II. Working on a Definition of Municipal Law (pages 44-58). All good writers in this period will give you definitions and then unpack them. I think it is a particularly felicitous method, because it forces the writer to be precise about where s/he is going and it helps the reader stay "on point." So, he defines municipal law as "a rule of civil conduct prescribed by the supreme power in a state, commanding what is right and prohibiting what is wrong." You might note some of the similarities and differences between his and Aquinas' definition of the essence of law. Aquinas places more emphasis on law being a result of "reason"--probably because he is quite occupied with Aristotelian categories (speculative v. practical reason). Blackstone certainly would not disagree, but he places his emphasis on the "right and wrong" part of the law's commands.
Blackstone, however, will deemphasize the moral nature of law (see p. 45, 57f.). In this section he enters into a long digression on the "threefold nature" of human governments: monarchy, oligarchy and democracy. This is a standard topic that goes back to Plato (the Republic, in Books VIII and IX, discusses these, and their corruptions) and is a topic treated by almost every other political writer I know between his time and Blackstone's (Machiavelli is a notable exception). He holds England superior to all other lands (no national chauvinism here!) because of its "mixed" type of government. Note also his statement that "every law may be said to consist of several parts: one, declaratory; whereby the rights to be observed, and the wrongs to be eschewed, are clearly defined and laid down: another, directory;.....a third, remedial,...to which may be added a fourth, usually termed the sanction, or vindicatory branch of the law."
III. Interpreting Law (pages 58-62). His principles of legal interpretation could be taken from a 21st century handbook on the subject, I think. "Words are generally to be understood in their usual and most known significantion (p. 59);" "If words happen to be still dubious, we may establish their meaning from the context (p. 60);" etc. He closes with a comment on equity. "From this method of interpreting laws, by the reason of them, arises what we call equity; which is thus defined by Grotius, 'the correction of that, wherein the law (by reason of its universality) is deficient.'"
Copyright © 2004-2007 William R. Long