Justice Blackstone's Common Law Orthodoxy
Northwestern University School of Law
March 13, 2009
Northwestern University Law Review, Vol. 103, 2009
Although William Blackstone served longer as a judge on the English Court of Common Pleas than he had as the inaugural Vinerian Professor of English law at Oxford, his post-professorial legal life has been almost entirely ignored by scholars. Only one brief article, written almost fifty years ago and focused narrowly on legal doctrine, has offered any insight into Blackstone as a judge. And yet the subject is of interest for two reasons. First, Blackstone was the first law professor to become a judge on an English common law court. Second, his judicial opinions provide an alternative, and arguably a more accurate, path into his legal thought. The lectures that became the Commentaries on the Laws of England were written when he was barely thirty years old and had spent fewer than seven unsuccessful years at the bar. By contrast, his judicial opinions are the work of a mature legal thinker. It is not possible to accurately assess how well the jurisprudence expressed in the Commentaries reflects his true legal thought without also studying his opinions and his other available practical legal writing. This article argues that Blackstone's opinions show him to have been a strong and consistent adherent to a basic view of law that all English lawyers shared and that Blackstone advocated in the Commentaries. This view, which is here called the common law orthodoxy, was a set of principles about how law was made and the role of judges in finding it. However, where most lawyers and judges, while taking the orthodoxy as a baseline, were willing to deviate from it as necessary, Blackstone was not. This insistence on principles arguably derived at least in part from his academic habit of seeing the law as a set of abstract rules. Having spent more time and achieved greater success as a teacher than he did as a practitioner, he never came to fully appreciate the practical realities of how the common law worked in the courtroom. Consequently, the man whose work is so admired in American law and who is so often cited as representing the state of the law at the time of the Founders, did not himself have a perfect understanding of the legal mind of his age.
Number of Pages in PDF File: 54
Keywords: legal history, Blackstone, jurisprudence
JEL Classification: Z00
Date posted: March 14, 2009 ; Last revised: July 19, 2010
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