Allen on Blackstone, Expositor and Censor of Law Both Made and Found

Jessie Allen, University of Pittsburgh School of Law, is publishing Blackstone, Expositor and Censor of Law Both Made and Found in Blackstone and His Critics (Wilfrid Prest and Anthony Page, eds., Hart Publishing, forthcoming). Here is the abstract.

Jeremy Bentham famously insisted on the separation of law as it is and law as it should be, and criticized his contemporary William Blackstone for mixing up the two. According to Bentham, Blackstone costumes judicial invention as discovery, obscuring the way judges make new law while pretending to uncover preexisting legal meaning. Bentham’s critique of judicial phoniness persists to this day in claims that judges are “politicians in robes” who pick the outcome they desire and rationalize it with doctrinal sophistry. Such skeptical attacks are usually met with attempts to defend doctrinal interpretation as a partial or occasional limit on judicial policy making. But this essay takes a different approach. I view the judicial performance of legal interpretation described in Blackstone’s Commentaries as a kind of ritual in which Blackstone participates. This response might seem to prove Bentham’s point. In the mainstream modern view, ritual is quintessentially false and irrational - an empty ceremony that distracts us from reality. But there is another way to think of ritual. On this account, ritual’s fictional performance is neither deceptive nor delusional. Rather, ritual practitioners act as if their ritual world is real, while recognizing the gap between ritual order and a chaotic, messy world. In my reading, Blackstone’s Commentaries describes an ambiguous ritual of judicial discovery, in which judges act as if they are finding objectively determined outcomes, while they - and we - understand and acknowledge that subjective creativity is involved in producing those results. Ritual is often associated with maintaining traditional social structures, and in the U S today Blackstone continues to be claimed by conservative “originalists” who treat the Commentaries as an authoritative guide to American law at the time of the country’s founding. But, while ritual cannot finally resolve real social conflicts, it need not always preserve a static social reality. The essay closes with an analysis of the judicial technique in Hively v. Ivy Tech Community College of Indiana, a recent U.S. federal appeals court decision that deployed the ritual of judicial discovery to expand protection for the rights of LGBT Americans.

Download the essay from SSRN at the link.