June 23, 2011

What does it mean to make the law a book

During Blackstone's discussion of the character of an MP, he vents his frustration about the way that MPs who don't know the law make legislation. Whilst doing this he makes an interesting analogy- the law is a book and the MP is a commentator on that book (a bit like I am writing here about Blackstone and have written in the past about Livy and Augustine). Blackstone comments

And how unbecoming must it appear in a member of the legislature to vote for a new law, who is utterly ignorant of the old! what kind of interpretation can he be enabled to give, who is a stranger to the text upon which he comments.
Blackstone's analogy is truly radical. When I comment upon a text, I do not seek to alter it. No doubt Blackstone was thinking of the commentators or glossers upon philosophical or biblical texts who would strue the text with comments upon what it did or did not mean. In that sense Blackstone's comments were a more active comment than a modern commentator who separates the text of his comment from that which is commented upon. But even so what this implies is that the law, like the text, does not change- just people's interpretation of that law changes. We here come to a radical division between the common law mind and the modern mind: Blackstone like Coke before him believed that in some sense the law did not change, only our interpretation, our comment on the law changes.

June 22, 2011

Why lawyers make good MPs

How should MPs be trained? That sounds an odd question does it not. An MP, according to Jim Hacker, is a job for which you need no qualifications, there are no hours of service etc. Modern MPs are selceted on the basis of their ideology, their adherance to their party and their experience. All of these things are relevant and they are legitimate bases to chose a modern MP upon: I do not want to question them here- just to suggest that the job of an MP has changed down the years. For evidence I want to consider something that Blackstone made clear in his lectures in Oxford in the 1750s- when you read this think to yourself about how far Blackstone's idea of an MP differs from ours. Whereas we think of our MPs as servants of their constituents and partakers in a public debate: Blackstone seems to have had something else in mind. MPs for him were partakers in public reason- that reason being defined as public law and the task of an MP, for him, was that of a superior magistrate.

He described the privilege of being an MP thus:

They are not thus honourably distinguished from the rest of their fellow-subjects, merely that they may privilege their persons, their estates or their domestics; that they may list under party banners; may grant or with hold supplies; may vote with or against a popular or unpopular administration; but upon considerations far more interesting and important. They are the guardians of the English constitution; the makers, repealers and interpreters of English laws, dedicated to watch, to check and to avert every dangerous innovation, to propose, to adapt and to cherish any solid and well weighed improvement.
Pause for a second before you assent to the wonderful prose and just think about what Blackstone means here: what he is saying is completely at odds with what almost every one of us believes today. His argument is that the central duty of an MP is not to be a loyal member of a party, not to vote on budgets (supplies is the archaic English Parliamentary word- still in use for budgetry measures) nor even to bring down governments: their job is to make or rather consider making law. Note as well that in this action of making law what they are doing is repealing or adding to an existing body of law- not creating new measures but refining old measures. The function of an MP is, for Blackstone, not as a representative (no words about the people here), nor as a creator of an executive, but as a leglislator and one that would choose to do very little.

So what did such a partaker in public law require. Blackstone had examples before him of what such a person might need. He cites Cicero to that effect. He might have cited Sir Edward Coke who famously derided the lack learning Parliament of the 14th Century for its lack of lawyers and hence of mastery of the law. Blackstone believed that to be an MP you had to have a knowledge of a public reason: he cites the rebuke of Quintus Mutius Scaevola, 'the oracle of Roman law' to Servius Sulpicius to make his point. Blackstone quotes Scaevola as saying that 'it was a shame for a patrician, a nobleman and an orator of causes, to be ignorant of that law in which he was so particularly concerned'. What we see here is a dual movement- on the one hand the assertion that the law was a subject, on the other that it was the political subject into which all others fed. Leglislators require this knowledge: Blackstone goes further and expands on the fact that he believes all bad laws in England during the eighteenth century are the product (not as we might argue of bad government or ideologically incorrect government) but of bad lawmaking:
almost all the perplexed questions, almost all the niceties, intricacies and delays... owe their origin not to the common law itself, but to innovations that have been made in it by Act of Parliament; 'overladen (as sir Edward Coke expresses) with provisoes and additions nad many times on a sudden penned or corrected by men of none or very little judgement in law.
Blackstone's case is antique- after all Parliamentary draughtsmen are supposed to deal with this problem. But it is interesting because it demonstrates quite how different his concept of an eighteenth century MP was from ours. No doubt he did believe in representation and in election and in government- but for him expertise in the law was another facet of what made a good MP. In that sense he and Coke and Cicero stand at odds with our politics. For all of them perhaps something of the aristocratic clung to the notion of an MP: they sensed the role as being an honorific one as well as a representative one- the movement between the 18th Century and the 20th may be a movement from the honorific role of election to the representative.

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.