William Blackstone (1723-80)
Prof. Bill Long 9/22/05
The Invention of Common Law History
As we turn to William Blackstone, whose four volume Commentaries on the Laws of England (1765-69) was the basic legal textbook in America until almost the Civil War, we realize we are now in the middle of the 18th century and that the assumptions surrounding life are quite different than they were in Aquinas' (13th) time. Nevertheless, Blackstone ("B") will be firmly esconced in the natural law tradition; ch. 2 of the first edition convinces us of that quite easily. The purpose of this essay is to lay out three general principles to help us understand B and then summarize some features of the chapter (pp. 38-62).
Blackstone's General Approach to the Law
(1) B occupied the first endowed chair (Vinerian Chair) in the Common Law at Oxford (beginning in 1758). For centuries Oxford had only been teaching the Civil Law (Roman), and there was an endowed chair (Regius Chair) for this purpose. Therefore, part of what B set himself to do was to prove that there was such a thing as a method and content to the common law. Of course others, such as Coke in the 17th century, had written about the common law, but Blackstone would try to argue that there were certain basic principles actuating it and that from these principles flowed various doctrines. Hence, he was committed to systematizing an amorphous body of decisions, statutes and customs that had, in some cases, been in existence for centuries.
(2) B lived in day of scientific and philosophical giants, whose methods he emulated in doing his work. The scientific giant was Isaac Newton and the philosophical star was John Locke. From the former, people learned that nature itself was subject to certain regular and predictable laws. From Locke, people learned that the human self was not imbued with innate ideas but was rather like a tabula rasa, a blank slate to be written on by human experience. Thus, B would be very committed to writing a "scientific" treatise on the laws. In so doing, he would have to try to identify the principles, or basic commitments of the common law. In addition, since Locke was an empiricist, Blackstone's method would be historical--searching out old codes, decisions and other obscure documents out of which to distill these principles of law. Locke also wrote a book entitled The Reasonableness of Christianity, which would bequeath to the 18th century a concern to pursue rational understanding of their fields.
(3) B saw it as his task to buttress, rather than question, the status quo. This is a very important point, because it goes right to the heart of Bentham's criticism of B. B lectured to the sons of the propertied classes who benefitted most by the status quo in England. Thus, this first exponent of the history of the common law would try to show not simply how the status quo evolved but that this evolution was basically a good thing. You can't read ch.2 of vol. 1 without thinking that B is fully committed to the notion that 18th century English society has reached the acme of justice, truth, and wisdom.
There is another reason, however, why B reached this conclusion. In the field of theology, where the rationalists had begun to apply the same kind of questions to Christian doctrine, what had begun as an inquiry into the rational basis of the Christian religion had soon turned into a critique of Christianity because it was not "rational"--i.e., it had, according to some thinkers, lots of traces of irrational practices. Thus, if B was going to try to give a rational explanation of the development of the law, there was a danger that he might be exposing the law to ridicule if someone came along (as did his student) to question why things are the way they are. The application of 18th century categories to the development of the common law, then, posed all kinds of potential problems. Nevetheless, B was a solid supporter of privilege and believed that his work was designed to support the status quo.
Chapter 2 seems to composed of about five "parts," even though B tries to make it a flowing narrative.
(1) Pp.38-44 describe the theory of natural law, with B's four categories of law. Note that the categories are similar to but differ some from Aquinas' types. The treatment ought to be very familiar to anyone who has read Aquinas. The twist is that B drops "eternal law" and replaces it with "law of the nations." But he also devises the threefold terminology of "power, wisdom and goodness" (p.40) not simply to describe the attributes of God but the way that power will be divided in the British state (i.e., the king represents power, the lords represent wisdom and the house of commons is characterized by goodness). Thus, like Plato before him, he is trying to work with threes or fours and draw various correspondences throughout his work.
(2) Pp. 44-47, and 52-53 describe his definition of the municipal law. I will give the definition here: "Municipal law is a rule of civil conduct prescribed by the supreme power in a state commanding what is right, and prohibiting what is wrong." This isn't too different from what Aquinas says in Q. 90.
(3) Pp. 47-53 is a sort of paean or hymn of praise to the British system of laws. He is aware of efforts by other 18th century thinkers to try to posit the origin and growth of society, but he is reluctant to join in their efforts. Nevertheless, he is interested in talking about the three species of government (monarchy, aristocracy and democracy) and finally, quoting Tacitus (p. 50), the mixed constitution. It is a happy thing from Britain that they are an exception to the rule that a mixed constitution is a "visionary whim." We see his uncritical admiration for the British form of government:
"But the constitutional government of this island is so admirably tempered and compounded, that nothing can endanger or hurt it, but destroying the equilibrium of power between one branch of the legislature and the rest. For if ever it should happen that the independence of any one of the three should be lost, or that it should become subservient to the views of either of the other two, there would soon be an end of our constitution" (50-51).
(4) He then has a section on various parts of law, which I think is relatively confusing (53-58). He says that each as a declaratory, directory, and remedial part, and that laws also have sanctions which generally are vindicatory rather than remuneratory.
Finally, (5) he presents several principles of interpreting laws which are still quite useful today (59-62). Among the principles he lists are that "words are generally to be understood in their usual and most known signification" and that "if words happen to be still dubious, we may establish their meaning from the context" (60). An example of the first would be when a statue that forbad a layman to "lay hands" on a priest was extended to anyone who had hurt a priest with a weapon.
Even though B has a long section on natural law and how his treatise assumes this reality, the concept of natural law doesn't really function vigorously for him as he continues to write. His concern is solely with municipal (i.e., national) law. Yet it is interesting to see that Thomas Aquinas' emphasis is still important five centuries after Thomas' death.
Copyright © 2004-2007 William R. Long