ICYMI: Shugerman on Removal of Context: Blackstone, Limited Monarchy, and the Limits of Unitary Originalism @jedshug @BU_Law

ICYMI: Jed H. Shugerman, Boston University School of Law, has published Removal of Context: Blackstone, Limited Monarchy, and the Limits of Unitary Originalism at 33 Yale Journal of Law & the Humanities 125 (2022). Here is the abstract.

This article is part of a series on Article II, questioning the unitary theory’s three pillars: the Executive Vesting Clause, the Take Care Clause (or the “Faithful Execution” clauses), and the Decision of 1789 (or more accurately, the Indecisions of 1789). “Removal of Context” focuses on the “executive power” part of the Vesting Clause: Did “executive power” imply supervision and removal in the eighteenth century? What do the unitary theorists cite to support their claim that “executive power” includes removal, and “indefeasibly” so? Unitary executive theorists rely on the English Crown in the seventeenth and eighteenth centuries, but they overlook or obscure the problems of relying on England’s limited monarchy, the era’s rise of Parliamentary supremacy over the Crown and its power to eliminate or regulate (i.e., make defeasible) royal prerogatives. There appears to be no evidence that executive removal was ever conceived as a “royal prerogative” at all, and the historical record indicates that the king did not have a general removal power at pleasure. The structure of the historical comparison has a major flaw: They concede that the Constitution explicitly limits many core royal powers, such war, peace (treaties), and the veto, so that the president is weaker than the king, but somehow Article II implies unnamed “executive powers” (like removal) that make a president stronger than a king? Moreover, there were eighteenth-century royal prerogatives related to law execution (prorogue and dissolution), but no one claims Article II “executive power” implies them. When one investigates the unitary evidence more closely and follows their sources, one finds a pattern of misinterpreting historical sources, especially Blackstone in amicus briefs and law review articles in the unitary executive scholarship. In particular, the recent brief by unitary scholars in Seila Law misinterprets Blackstone’s use of the word “disposing” of offices as removing, instead of dispensing or appointing (which are indicated by context and general usage) and then misquotes a passage from Blackstone, reversing his meaning from his uncertainty about the relevant law of offices to a certain positive claim about removal. These misreadings are more than just small or narrow errors. They obscure more significant points: Blackstone was fundamentally in favor of parliamentary supremacy, against “indefeasible” executive powers; and Blackstone never mentions removal as a royal prerogative or a general executive power, which is powerful counter-evidence to the unitary theorists’ assumptions. These errors are also a cautionary moment about originalist methods and the notion that originalism is more reliable or objective than other methods of interpretation.

Download the article from SSRN at the link.

See also 

Jed H. Shugerman, The Indecisions of 1789: Appendices on the Misuse of Historical Sources in Unitary Executive Theory, Fordham Law Legal Studies Research Paper No. 4359596.

Stern on Blackstone's Page and Trollope's Jurisprudence: From Doctrine to Fiction @ArsScripta @CambridgeUP

Simon Stern, University of Toronto Faculty of Law, is publishing Blackstone’s Page and Trollope’s Jurisprudence: From Doctrine to Fiction in A History of Punctuation in English Literature (Elizabeth M. Bonapfel, Mark Faulkner, Jeffrey Gutierrez, and John Lennard, eds., Cambridge University Press) (forthcoming, 2024). Here is the abstract.

This book chapter explores connections between law and literature by attending to print format, page layout, and typography. It considers William Blackstone’s use of the colon in his Commentaries on the Laws of England (1765-69), showing how he exploits the sign as a means of achieving the balance, rationality, and clarity that he seeks to attribute to the common law more generally. The chapter then turns to Anthony Trollope’s The Eustace Diamonds (1873). Chapter 25 provides Mr. Dove’s opinion letter as to the legal status of the diamonds that drive the plot. Trollope noted in his autobiography that this chapter was composed by the barrister Charles Merewether. What has not been recognized is that Merewether transcribed most of the letter from a leading work on inheritance and estate law, A Treatise on the Law of Executors and Administrators by Edward Vaughan Williams. It is hard to tell whether Trollope or Merewether (or both) were responsible for the differences in wording (though some are likely to be Trollope’s). However, the letter also features a very Trollopean use of the dash to signal hesitation and temporization, generally at Mr. Dove’s expense. These examples from Blackstone and Trollope show how the conjunction of the legal and the literary may present distinctive typographical features, in addition to more frequently studied features involving legal norms, analytical styles, and doctrinal questions.

Download the essay from SSRN at the link.

Brady on Cottages as Public Nuisances: The Long History of Land Use Regulation of the Poor @Harvard_Law

Maureen E. Brady, Harvard Law School, is publishing Cottages as Public Nuisances: The Long History of Land Use Regulation of the Poor in the DePaul Law Review. Here is the abstract.

In the Fourth Book of his Commentaries on the Law of England, in a chapter entitled “Offenses Against the Public Health, and the Public Police or Oeconomy,” William Blackstone sited his discussion of “common nuisances.” Although many things on this list of what we now call public nuisances are familiar—blockages of public roads, disorderly saloons, trades emitting offensive smells or sounds—one stands out. Blackstone described as a typical nuisance the erection of “cottages,” going on to discuss and even criticize the situation of these dwellings alongside uses like fireworks and the keeping of hogs in close quarters. The aim of this Essay is to examine Blackstone’s discussion of cottages in context, endeavoring to use it toward two ends. The first is to better understand the concept of public nuisance and its limits. As others have chronicled, there has been a renaissance in interest in the tort in recent years, spurred on by multimillion dollar litigation invoking it in contexts ranging from the opioid epidemic to climate change. Here, I engage in a close reading of Blackstone’s passage and its citations, examining why cottages were regulated as public nuisances in the first instance and how that history connects to broader developments in English (and later American) law and society. As it turns out, cottages bore a closer relationship in many ways to public nuisance “classics,” like road blockages and certain public health risks, than it might at first appear. Second, the story of the cottage illustrates the uneasy—and often, ineffective—ways that the state has deployed land use regulation to manage the poor. The story of the cottage evokes the old adage: “everything old is new again.” Cottages became targets because many sprung up informally on common property in an era in which the state was formalizing private title—not so different from the pressures on, and persistence of, informal settlements in some parts of the world today. Regulators sought to proscribe cottages to control the movement of labor while simultaneously limiting the accumulation of the poor, for a mix of seemingly legitimate and illegitimate reasons (compare the public health and safety risks of crowding to the notion that poverty and cohabitation leads to idleness). Centuries later, regulators and the citizens voting for them put forth a similar mix of motives to justify regulating apartment buildings and other forms of multifamily housing. The inclusion of cottages in Blackstone’s list illustrates the enduring appeal of land use law in all its forms—the tort law of nuisance, contract law, and regulation—as a means of defining and managing real and perceived social harms.

Download the essay from SSRN at the link.

Havasy, Macey, and Richardson on Against Political Theory in Constitutional Interpretation @Maceyjoshua @VandLRev @Harvard_Law @CornellLaw

Christopher Havasy, Harvard Law School; Harvard University, Department of Government, Joshua Macey, University of Chicago Law School, and Brian Richardson, Cornell Law School, are publishing Against Political Theory in Constitutional Interpretation in the Vanderbilt Law Review. Here is the abstract.

Judges and academics have long relied on the work of a small number of Enlightenment political theorists—particularly Locke, Montesquieu, and Blackstone—to discern meaning from vague and ambiguous constitutional provisions. This Essay cautions that Enlightenment political theory should rarely, if ever, be cited as an authoritative source of constitutional meaning. There are three principal problems with constitutional interpretation based on eighteenth-century political theory. First, Enlightenment thinkers developed distinct and incompatible theories about how to structure a republican form of government. That makes it difficult to decide which among the conflicting theories should possess constitutional significance. Second, the drafters did not write the Constitution in the image of the philosophy of Montesquieu, Locke, or Blackstone. Instead, they developed a new form of government to meet what they perceived to be the needs of a nascent republic. And third, the Constitution itself departs from the dominant strands of Enlightenment political theory in crucial respects. For example, while some Enlightenment theorists advocated for precisely divided federal powers, the drafters favored a system of procedural checks, not formal separation. Thus, while Enlightenment works can be normatively persuasive or act as a guide to historical meaning, they should be treated as presumptively irrelevant in constitutional interpretation. Unless the party who would invoke an Enlightenment political theorist can produce evidence of consensus or common ground about that theory from an episode of American constitutional debate, the theorist’s prescriptions are no more probative than any other work of normative political theory.

Download the article from SSRN at the link.

Stern on A Mistake of Natural Law: Sir William Blackstone and the Anglican Law @RegentLaw

Craig A. Stern, Regent University School of Law, is publishing A Mistake of Natural Law: Sir William Blackstone and the Anglican Way in volume 4 of the University of Bologna Law Review (2019). Here is the abstract.

Despite charges to the contrary, Blackstone’s use of natural law in his Commentaries is coherent and actually shapes the whole, but it takes eyes alerted to Blackstone’s grounding in Roman Law and in the Anglican Church to see this truth. Once seen, it speaks directly to the study and practice of law in America today.

Download the article from SSRN at the link.

Newly Published: Kathryn D. Temple, Loving Justice: Legal Emotions in William Blackstone's England (NYU Press) @NYUpress

Newly published: Kathryn D. Temple, Loving Justice: Legal Emotions in William Blackstone's England (NYU Press, 2019). Here from the publisher's website is a description of the book's contents.

William Blackstone’s masterpiece, Commentaries on the Laws of England (1765–1769), famously took the “ungodly jumble” of English law and transformed it into an elegant and easily transportable four-volume summary. Soon after publication, the work became an international monument not only to English law, but to universal English concepts of justice and what Blackstone called “the immutable laws of good and evil.” Most legal historians regard the Commentaries as a brilliant application of Enlightenment reasoning to English legal history. Loving Justice contends that Blackstone’s work extends beyond making sense of English law to invoke emotions such as desire, disgust, sadness, embarrassment, terror, tenderness, and happiness. By enlisting an affective aesthetics to represent English law as just, Blackstone created an evocative poetics of justice whose influence persists across the Western world. In doing so, he encouraged readers to feel as much as reason their way to justice. Ultimately, Temple argues that the Commentaries offers a complex map of our affective relationship to juridical culture, one that illuminates both individual and communal understandings of our search for justice, and is crucial for understanding both justice and injustice today.

 

New From Hart Publishing: Blackstone and His Critics @hartpublishing

New from Hart Publishing: Blackstone and His Critics (Anthony Page and Wilfrid Prest, eds., 2018).

William Blackstone's Commentaries on the Laws of England (1765-69) is perhaps the most elegant and influential legal text in the history of the common law. By one estimate, Blackstone has been cited well over 10,000 times in American judicial opinions alone. Prominent in recent reassessment of Blackstone and his works, Wilfrid Prest also convened the Adelaide symposia which have now generated two collections of essays: Blackstone and his Commentaries: Biography, Law, History (2009), and Re-Interpreting Blackstone's Commentaries: A Seminal Text in National and International Contexts (2014). This third collection focuses on Blackstone's critics and detractors. Leading scholars examine the initial reception of the Commentaries in the context of debates over law, religion and politics in eighteenth-century Britain and Ireland. Having shown Blackstone's volumes to be a contested work of the Enlightenment, the remaining chapters assess critical responses to Blackstone on family law, the status of women and legal education in Britain and America. While Blackstone and his Commentaries have been widely lauded and memorialised in marble, this volume highlights the extent to which they have also attracted censure, controversy and disparagement.

 

Habermacher on Rennard Strickland's Comparison Between Sir William Blackstone and Felix Cohen@adrienhaber

Adrien Habermacher, McGill University Faculty of Law, and McGill University Faculty of Law, Institute of Comparative Law, is publishing 'Felix Cohen Was the Blackstone of Federal Indian Law': Taking the Comparison Seriously is volume 8 of British Journal of American Legal Studies.

This paper explores thoroughly the many facets of Rennard Strickland’s comparison between Sir William Blackstone, author of the 1765-69 COMMENTARIES ON THE LAWS OF ENGLAND, and Felix Cohen, architect of the 1942 HANDBOOK OF FEDERAL INDIAN LAW. It consists in a side by side analysis of both authors’ master works, political and educational projects, as well as general contribution to jurisprudence. It reveals that despite the stark differences between Blackstone’s work on the English common law from his professorship at Oxford in the late 18th century, and Cohen’s endeavors on the US federal law concerning Native Americans as a civil servant at the turn of the 1940’s, there are remarkable similarities in the enterprises of legal scholarship the two jurists took on, the larger political projects they promoted, and their role in the development of legal thought. The idea that “Felix Cohen was the Blackstone of Federal Indian Law” has stylistic appeal and could have been little more than a gracious way to celebrate Cohen. An in-depth comparative examination of legal history and jurisprudence however corroborates and amplifies the soundness of the comparison.

Download the article from SSRN at the link.

New From Hart Publishing: Blackstone and His Critics, Edited by Anthony Page and Wilfred Prest @hartpublishing

Newly published: Blackstone and His Critics (Anthony Page and Wilfred Prest, eds., 2018).

William Blackstone's Commentaries on the Laws of England (1765-69) is perhaps the most elegant and influential legal text in the history of the common law. By one estimate, Blackstone has been cited well over 10,000 times in American judicial opinions alone. Prominent in recent reassessment of Blackstone and his works, Wilfrid Prest also convened the Adelaide symposia which have now generated two collections of essays: Blackstone and his Commentaries: Biography, Law, History (2009), and Re-Interpreting Blackstone's Commentaries: A Seminal Text in National and International Contexts (2014). This third collection focuses on Blackstone's critics and detractors. Leading scholars examine the initial reception of the Commentaries in the context of debates over law, religion and politics in eighteenth-century Britain and Ireland. Having shown Blackstone's volumes to be a contested work of the Enlightenment, the remaining chapters assess critical responses to Blackstone on family law, the status of women and legal education in Britain and America. While Blackstone and his Commentaries have been widely lauded and memorialised in marble, this volume highlights the extent to which they have also attracted censure, controversy and disparagement.

 

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.

Re-Interpreting Blackstone's Commentaries, Edited by Wilfred Prest: New in Paperback from Hart Publishing @hartpublishing

New in paperback from Hart Publishing: Re-Interpreting Blackstone's Commentaries: A Seminal Text in National and International Contexts (Wilfrid Prest, ed., Hart Publishing).

This collection explores the remarkable impact and continuing influence of William Blackstone's Commentaries on the Laws of England, from the work's original publication in the 1760s down to the present. Contributions by cultural and literary scholars, and intellectual and legal historians trace the manner in which this truly seminal text has established its authority well beyond the author's native shores or his own limited lifespan. In the first section, 'Words and Visions', Kathryn Temple, Simon Stern, Cristina S Martinez and Michael Meehan discuss the Commentaries' aesthetic and literary qualities as factors contributing to the work's unique status in Anglo-American legal culture. The second group of essays traces the nature and dimensions of Blackstone's impact in various jurisdictions outside England, namely Quebec (Michel Morin), Louisiana and the United States more generally (John W Cairns and Stephen M Sheppard), North Carolina (John V Orth) and Australasia (Wilfrid Prest). Finally Horst Dippel, Paul Halliday and Ruth Paley examine aspects of Blackstone's influential constitutional and political ideas, while Jessie Allen concludes the volume with a personal account of 'Reading Blackstone in the Twenty-First Century and the Twenty-First Century through Blackstone'. This volume is a sequel to the well-received collection Blackstone and his Commentaries: Biography, Law, History (Hart Publishing, 2009).

 

Jones @bchristophjones and Sarat @ljstprof on Justices as "Sacred Symbols": Antonin Scalia and the Cultural Life of the Law

Brian Christopher Jones, Liverpool Hope University, and Austin Sarat, Amherst College, are publishing Justices As 'Sacred Symbols': Antonin Scalia and the Cultural Life of the Law in the British Journal of American Legal Studies (2017). Here is the abstract.

The idea of the brilliant and elegant philosopher judge has a long and romanticized history. From Sir Edward Coke, William Blackstone and Joseph Story to Oliver Wendell Holmes, Louis Brandeis and Lord Bingham, the common law is replete with this vision of judging. In this vision, judges sometimes seem to be law makers as much as faithful it interpreters. In many ways Antonin Scalia fought against this traditional vision of the philosopher judge. He disliked activist judges who imposed their idea of wisdom on elected legislatures; in fact, he trumpeted his jurisprudence for its fidelity to law and deference to the popular will. But even though Scalia fought against the romantic vision of philosopher judge, he himself became a living symbol of a judicial philosophy, a symbol so powerful that sometimes it was difficult to disentangle the judge from his jurisprudence. His status as a symbol and how he achieved his status, was much different from the route of the judges mentioned above. This paper attempts to explain how Scalia became what we call a judicial “sacred symbol”.

Download the article from SSRN at the link. 

The Role of Emotion In English Law and Legal Theory

For those of us who think the English are dour or lack affect,, and that English lawyers are more of the same, a new book offers to change our views. Newly published by Bucknell University Press is Impassioned Jurisprudence: Law, Literature, and Emotion, 1760-1848, edited by Nancy E. Johnson. Here is a description of the contents from the publisher's website.

In this volume of essays, scholars of the interdisciplinary field of law and literature write about the role of emotion in English law and legal theory in the late eighteenth and early nineteenth centuries. The law's claims to reason provided a growing citizenry that was beginning to establish its rights with an assurance of fairness and equity. Yet, an investigation of the rational discourse of the law reveals at its core the processes of emotion, and a study of literature that engages with the law exposes the potency of emotion in the practice and understanding of the law. Examining both legal and literary texts, the authors in this collection consider the emotion that infuses the law and find that feeling, sentiment and passion are integral to juridical thought as well as to specific legislation.

Includes an introduction by Nancy E. Johnson, Simon Stern, Blackstone's Legal Actors: The Passions of a Rational Jurist, Nancy E. Johnson, Narrative Sentiment in Adam Smith's Lectures on Jurisprudence, J. T. Scanlan, Love and the Law in Boswell's Development as a Writer in the Late 1760s, Melissa J. Ganz, Freedom and Fetters: Nuptial Law in Burney's The Wanderer, Erin Sheley, Doubled Jeopardy: The Condemned Woman as Historical Relic, Peter de Bolla, The Madness of Sovereignty: George III and the Known Unknown of Torture, Ian Ward, The Great Dramatist: Macaulay and the English Constitution. Also includes a Timeline of Selected Legal Publications, Legislation, and Events, and a Bibliography.



 
 

Re-Interpreting Blackstone

Christopher Tomlins, University of California, Berkeley, Jurisprudence and Social Policy Program, is publishing Adelaide's Blackstone in the Adelaide Law Review. Here is the abstract.

This essay is an extended commentary on the recently-published (2014) essay collection entitled Re-Interpreting Blackstone’s Commentaries: A Seminal Text in National and International Contexts, edited by Wilfrid Prest. The collection is an important element in an ongoing multi-year project of engagement with Blackstone based at the University of Adelaide. It has staked out an ambitious interpretive terrain. In matters of interpretation, essayists move beyond legal analysis and legal history to literary criticism and art history. In assessing the Commentaries’ dissemination and impact, they pursue Blackstone beyond the usual concentration on the British Atlantic world into new, less familiar climes – the French Atlantic (Louisiana and Quebec) and Australasia. In charting the Commentaries’ influence, finally, they move beyond the history of common law adjudication to the distinctly contemporary subject of American constitutional originalism and its genealogy. The essay finds that *Re-Interpreting Blackstone’s Commentaries* is both enjoyable and instructive. Given the challenge of circumstance – an exceptionally familiar work written by a ‘conventionally dull’ man – this is no small achievement. The essay concludes with commentary on the place of Blackstone in the history of Australian settler-colonialism, with particular reference to the leading "native title" (indigenous land rights) cases of the past half century. It reflects on the place of history in native title litigation, and also on the meaning of resort to Blackstone by indigenous activists and their allies.

Download the essay from SSRN at the link.

Blackstone's Enduring Legacy

Wilfrid Prest has edited a collection of essays on Blacktone's Commentaries with Hart Publishing. Titled Re-Interpreting Blackstone's Commentaries, it appeared in October 2014. Here is a description from the publisher's website.

This collection explores the remarkable impact and continuing influence of William Blackstone's Commentaries on the Laws of England, from the work's original publication in the 1760s down to the present. Contributions by cultural and literary scholars, and intellectual and legal historians trace the manner in which this truly seminal text has established its authority well beyond the author's native shores or his own limited lifespan. In the first section, 'Words and Visions', Kathryn Temple, Simon Stern, Cristina S Martinez and Michael Meehan discuss the Commentaries' aesthetic and literary qualities as factors contributing to the work's unique status in Anglo-American legal culture. The second group of essays traces the nature and dimensions of Blackstone's impact in various jurisdictions outside England, namely Quebec (Michel Morin), Louisiana and the United States more generally (John W Cairns and Stephen M Sheppard), North Carolina (John V Orth) and Australasia (Wilfrid Prest). Finally Horst Dippel, Paul Halliday and Ruth Paley examine aspects of Blackstone's influential constitutional and political ideas, while Jessie Allen concludes the volume with a personal account of 'Reading Blackstone in the Twenty-First Century and the Twenty-First Century through Blackstone'. This volume is a sequel to the well-received collection Blackstone and his Commentaries: Biography, Law, History (Hart Publishing, 2009).

The editor is Professor Emeritus of Law and History at the University of Adelaide.

 

Re-Examining Blackstone's "Commentaries"

Jessie Allen, University of Pittsburgh School of Law, has published Law and Artifice in Blackstone's Commentaries in volume 4, issue 3, Chapter One, of Journal of Law: A Periodical Laboratory of Legal Scholarship (Summer 2014). Here is the abstract.

William Blackstone is often identified as a natural law thinker for whom property rights were preeminent, but reading the Commentaries complicates that description. I propose that Blackstone’s concept of law is more concerned with human invention and artifice than with human nature. At the start of his treatise, Blackstone identifies security, liberty and property as “absolute” rights that form the foundation of English law. But while security and liberty are “inherent by nature in every individual” and “strictly natural,” Blackstone is only willing to say that “private property is probably founded in nature.” Moreover, Blackstone is clear that there is nothing natural about the right of inheritance, “a wise and effectual, but clearly a political, establishment.” Indeed, he critiques the assumption that a legal right as central and longstanding as inheritance must be somehow “natural,” observing that “we often mistake for nature what we find established by long and inveterate custom.” At the same time, Blackstone celebrates the many features of common law that have simply been made up. Blackstone’s unflinching formal, fictional, “as if” approach invests property law with a certain materiality. The only way to actualize a make-believe vision is to act it out, to embody it in formal doctrines and practices. In comparison, the modern realist approach to law as an instrument for policy is quite abstract. This leaves realist critics of Blackstonian formalism in the ironic position of arguing for a more transparent approach to law that winds up obscuring the constructive and constructed quality of the legal system that comes through loud and clear in the Commentaries. By openly celebrating legal fictions, Blackstone reveals the truth that law is a great fabrication, not some necessary reflection of the way things are, or should be.

Download the article from SSRN at the link. 

Blackstone, Law, and Emotion

Simon Stern, University of Toronto Faculty of Law, is publishing Blackstone's Legal Actors: The Passions of a Rational Jurist in Impassioned Jurisprudence: Law, Literature and Emotion, 1660-1800 (Nancy Johnson, ed., Bucknell University Press, 2014) (Aperçus Series). Here is the abstract.

The success of Blackstone’s Commentaries is usually attributed to the ambition of his project: to give a synthetic and integrated overview of the common law. Blackstone’s effort, however strained, to display the law’s coherence, helps to explain why the Commentaries were taken up by so many generations of avid readers, but the book’s success also owes something to Blackstone’s method of showcasing this coherence and soliciting the reader’s enthusiasm for it. Blackstone does not simply methodize the law; he also personifies the law as an active force that produces consistency, and he similarly casts the reader as someone who partakes of the same sensibility and appreciates the same virtues. Blackstone places both the law and the law student in an affective relation to the rationalizing aims promoted in the Commentaries. By positing, within the text, a reader who attaches to the law in this fashion, Blackstone encourages his reader to take it for granted that this sense of attachment is part and parcel of the study of law.

The chapter begins by examining Blackstone’s figuration of the law and its passions, and the pattern in which he attributes the same dispositions to the reader. Next, the chapter considers Blackstone’s treatment of emotion in the criminal law, which describes the violent impulses of passionate actors – now presented as objects rather than subjects of legal thought – whose feelings are distinguished from the emotions that inform the law’s operations and that animate the law’s human exponent. Finally, the discussion turns to the place of emotion in Blackstone’s often-quoted paean to the imaginative power of the property right – a tribute that also positions the property-owner and his “affections” as the objects of legal thought. When this passage is considered in relation to Blackstone’s other accounts of legal passion, the property-owner emerges as a figure whose feelings might themselves be the product of a Blackstonian legal education.

Download the essay from SSRN at the link. 

Blackstone's Influence On Quebec's Legal Regime

Michel Morin, University of Montreal, is publishing Blackstone and the Birth of Quebec's Legal Culture 1765-1867 in Re-Interpreting Blackstone's Commentaries: A Seminal Text in National and International Contexts (Wilfrid Prest, ed.; Hart Publishing, forthcoming). Here is the abstract.

Blackstone’s commentaries were soon translated in French and became, prior to the French Revolution, the principal reference on British constitutional and criminal law. In Quebec, his work was known as early as 1767 and was used to buttress arguments for the preservation of French civil law. He was quoted in court proceedings and in a draft petition. In 1773, François-Joseph Cugnet sent documents concerning these issues to Blackstone, who forwarded them to the British Government. This probably convinced the ministry that the francophone population had no objection to English Criminal Law and to testamentary freedom. Thus, the Quebec Act of 1774 expressly preserved these parts of English Law, while restoring the laws in force prior to the Conquest concerning “Property and Civil Rights”. French versions of the Commentaries were available in Quebec as early as 1784. After the creation of an Assembly, politicians who opposed the Government and wanted to assimilate the provincial Assembly to the British House of Commons regularly quoted Blackstone. His Commentaries, which had benefitted from an improved translation by Chompré in 1822, remained a model for the first legal authors in Quebec. He clearly was part of Quebec’s legal culture and facilitated the understanding of arcane rules of English Law, both because of the clarity of his writings and of various translations of his work made in Europe.

Download the essay from SSRN at the link. 

Eighteenth Century Lawyers On Stage

Simon Stern, University of Toronto Faculty of Law, has published William Blackstone: Courtroom Dramatist? in Re-Interpreting Blackstone's Commentaries: A Seminal Text in National and International Contexts (Wilfrid Prest, ed.; Oxford, Hart, 2014). Here is the abstract.

This book chapter discusses William Blackstone's role as a judge, in relation to accounts (such as Bentham's) that portrayed him as "formal, precise, and affected." Rather than evaluating legal performance, in the courtroom, by reference to binaries such as formal/informal, cautious/inquisitive, or stolid/creative, I argue that the success of a legal performance depends on the speaker (e.g., witness, lawyer, judge), the audience (e.g., jury, judge, public), and the subject (e.g., the prosecution’s motives, the defendant’s alibi, the majesty of the common law). To explore this idea, I look at eighteenth- and early nineteenth-century commentators who praised or criticized particular lawyers or judges (in the course of offering "strictures on the bar") by invoking the language of theatricality. As I show, this language was most prevalent in discussions of jury trials, and was often pointedly abandoned in discussions of purely legal arguments (e.g., arguments before appellate courts). The figures in question include William Garrow, Sir John Scott, Sir Francis Buller, and Richard Sheridan. I also consider portrayals of inarticulate lawyers on the eighteenth-century stage, arguing that for the most part, these portrayals make none of the distinctions suggested here, as to audience and subject, but instead simply treat this character as a figure of fun because he is incompetent to perform his task, whatever that task may be. I close by reconsidering a shorthand transcription of Blackstone's performance on the bench in the 1770 trial of Onslow v. Horne, arguing that his conduct comports with an emerging sense of what makes for a good legal argument -- namely, one that takes written explanation as the template for an effective style of oral presentation, and one that Blackstone's own Commentaries helped to promote.

Download the essay from SSRN at the link. 

The Importance of William Blackstone's Commentaries

Simon Stern, University of Toronto Faculty of Law, is publishing William Blackstone, Commentaries on the Laws of England, Vol. 4 (1769), in Foundational Texts in Modern Criminal Law (Markus Dubber, ed.; Oxford University Press, forthcoming). Here is the abstract.

This book chapter discusses the fourth volume of Blackstone's Commentaries (1769), asking what contribution this volume makes to English criminal law. Issues addressed include the general structure of Blackstone's discussion, the relation between Blackstone's treatment and those of his precursors (especially Sir Matthew Hale and William Hawkins), the historical and literary range of Blackstone's references, the nature of his legal reform agenda, and his conception of the book's audience.

Download the essay from SSRN at the link.