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What Sir William Blackstone Might Have Said About Law Professors

(I posted this last year, but it's worth repeating): Blackstone was the leading late 18th century commentator on English law, and highly influential in the colonies, and this is what he had to say about why the English common law was better than the Continental civil law:

The English law is less embarrassed with inconsistent resolutions and doubtful questions, than any other known system of the same extent and the same duration. I may instance in the civil law: the text whereof, as collected by Justinian and his agents, is extremely voluminous and diffuse; but the idle comments, obscure glosses, and jarring interpretations grafted thereupon by the learned jurists, are literally without number. And these glosses, which are mere private opinions of scholastic doctors (and not, like our books of reports, judicial determinations of the court) are all of authority sufficient to be vouched and relied on; which must needs breed great distraction and confusion in their tribunals.

Tom R (mail):
Coompare Macaulay, as quoted by Dorothy M Pickles in Democracy (London, Methuen, 1971), pp 64-65;

Thomas Babington Macaulay, in his History of England , praised the Toleration Act for successfully "removing a mass of evil without shocking a vast mass of prejudice":

"The perfect lawgiver is a just temper between the mere man of theory, who can see nothing but general principles, and the mere man of business, who can see nothing but particular circumstances. Of lawgivers in whom the speculative element has prevailed to the exclusion of the practical, the world has during the last eighty years been singularly fruitful. To their wisdom Europe and America have owed scores of abortive constitutions, scores of constitutions which have lived just long enough to make a miserable noise, and then gone off in convulsions. But in British legislation the practical element has always predominated and not seldom unduly predominated over the speculative. To think nothing of symmetry and much of convenience; never to remove an anomaly merely because it is an anomaly; never to innovate except when some grievance is felt; never to lay down any proposition of wider extent than the particular case for which it is necessary to provide; these are the rules which have, from the age of [King] John to the age of [Queen] Victoria, generally guided the deliberations of our two hundred and fifty parliaments. Our national distaste for whatever is abstract in political science amounts undoubtedly to a fault. Yet it is, perhaps, a fault on the right side."

Pickles adds: "In matters concerning interpretations of principles such as individual liberty and economic and social inequality, on which liberal democrats assume there will never be agreement, there is something to be said for the spirit of caution and compromise with which the Toleration Act (which was what Macaulay was talking about) was approached. It succeeded, he believed, in "removing a mass of evil without shocking a vast mass of prejudice", and without laying down any general principle intended to tie the hands of legislators in any future controversy."

I wonder what Hayek would say in reply, though? Doesn't sound very... principled.
11.17.2005 8:40pm
Jon Rowe (mail) (www):
Basically, courts are better at positing norms which resolve problems than legislatures.

Often we hear complaints about courts "making the law," that somehow this is solely the legislatures' job. But legislatures don't necessarily do a better job creating norms to guide us than courts.

The common law courts historically were better at creating "simple rules for a complex society" (to use Epstein's phrase) than legislatures whose codes tend to be extremely voluminous and convoluted. Considering what our Congress does, Blackstone's observation is more apt today than ever.
11.17.2005 8:42pm
frankcross (mail):
Hey, this is the point I was making about the federal preemption of gun litigation.
11.17.2005 11:05pm
AppSocRes (mail):
Blackstone's comment was predicated upon an extremely conservative judiciary that under the English constitution was and is utterly subservient to Parliamentary law and extraordinarily respectful of precedent. An example from the end of the 18th century, when black letter law still allowed private prosecutions and judgement by combat: A man unhappy with the refusal to prosecute another man attempted a private prosecution. The defendant, in a clever response, challenged him to trial by combat. Contemporary American judges would probably come up with some excuse for undermining legislative prerogative. The British courts cleverly allowed both the private prosecution and the appeal to trial by combat; the (weaker?) plaintiff refused combat and was forced to drop his prosecution; and as a result of public furor, Parliament was forced to attend to its duties and amend outdated legislation. All this without any judge presuming to an authority greater than that allowed under England's constitution or pretending to any preternatural wisdom.
11.18.2005 10:30am
Siona Sthrunch (mail):
28 USCC 1367, the supplemental jurisdiction statute, was passed solely to codify pre-Finley common law, and arguably increased and confused litigation about supplemental jurisdiction - certainly around class action amount-in-controversy requirements.
11.18.2005 11:27am
Robert Schwartz (mail):
I am not sure Blackstone would say that if he were misfortunate enough to have to read some SCOTUS opinions, such as the last term's 10 Commandments cases.
11.18.2005 12:15pm
Jon Rowe (mail) (www):

All this without any judge presuming to an authority greater than that allowed under England's constitution or pretending to any preternatural wisdom.


I'm not an expert in the history of the common law. But according to Justice Scalia in an article in First Things (where he argues against judges currently engaging in such exact conduct) common law judges indeed did "pretend[] to...preternatural wisdom."

The entire rationale for such judges making up the law back then while resolving cases was that they weren't "making up the law," but rather "discovering" what was already there.
11.18.2005 5:50pm