June 20, 2011

Sir William Blackstone

William Blackstone's commentaries on the laws of England begin with a lament that the law and constitution of England is 'a species of knowledge, in which the gentlemen of England have been more remarkably deficient than those of all Europe besides'. A European gentleman, Blackstone argues, would not think 'his education is completed till he has attended a course or two of lectures upon the Institutes of Justinian and the local constitutions of his native soil'. British and English students, Blackstone argues, went to Holland or Germany to learn civil law in the eighteenth century and returned with that knowledge to illuminate the home country. Blackstone waxed nationalist about this

Far be it from me to derogate from the study of the civil law, considered... as a collection of written reason. No man is more thoroughly persuaded of the general excellence of its rules and the usual equity of its decisions; nor is better convinced of it's use as well as ornament to the scholar, the divine, the statesman and even the common lawyer. But we must not carry our veneration so far as to sacrafice our Alfred and Edward to the manes of Theodosius and Justinian; we must not prefer the edict of the praetor or the rescript of the Roman Emperor to our own immemorial customs, or the sanctions of an English Parliament; unless we can also prefer the despotic monarchy of Rome and Byzantium, for whose meridians the former were calculated to the free constitution of Britain, which the latter are adapted to perpetuate.
This eloquent passage shows Blackstone at his most nationalistic, preferring homely Alfred and Edward to the Roman Emperors, but it is also important for two reasons. Firstly it demonstrates that he believed that law was the indispensible partner of state building. England was free because it had English law. We can go further- the last sentence contrives to state that civil law has been crafted, it has been created whereas English law has been adapted by long usage. Indeed Blackstone provides here a certificate of English age versus civil reason when he discusses Parliaments. This inherited customary law is the device, he is telling us of Republics and it is precisely because Republican law is not changed that it expresses popular will.

The second important thing he states- which I think is something that distances him from us is that law and constitutions are in his words the 'ornament' of the scholar as well as useful to him. There is no profession that Blackstone excludes from this branch of knowledge: he does not erect barriers but instead argues that everyone needs, particularly his audience of Oxonian undergraduates (can anyone else detect the pomposity of a verbose don in some of those sentences?), to understand the law. In part, as he quotes Cicero, because this is what creates and informs Republican citizenship- in Rome those citizens had to learn the 12 tables, in England Blackstone is arguing they have to attend his lectures.