Blackstone and his Critics
Edited by Anthony Page & Wilfrid Prest
Oxford: Hart Publishing, 2018
Hardcover. xxi + 229 pages. ISBN 978-1509910458. £65
Reviewed by Claire Wrobel
Université Paris II
As the cover of the book makes it clear, both William Blackstone (1723-1780) and the work he is mainly remembered for – the Commentaries on the Laws of England which appeared in four volumes between 1765 and 1769 – stand out as monuments in English legal history. The first – and only – illustration in the book is a photograph of a statue made in 1784, which can be seen at the Codrington Library of All Souls College in Oxford. The photograph, shot from below, shows Blackstone sitting majestically, immortalised in marble, with his right arm resting rather casually on the back of his chair, suggesting control, and his left hand holding a rolled-up document in a firm grip, suggesting authority. A jurist, judge, and magistrate, Blackstone was the first professor to hold the Vinerian chair of common law at the University of Oxford, and his Commentaries were the first attempt to provide a synthetic account of the common law and all its branches.
The volume, however, is not a panegyric; rather, as the title announces, it focuses on the cracks and dents in the smooth marble surface. The collection of essays originates in the 34th annual conference of the Australian and New Zealand Law and History Society, held in 2015, on the occasion of the 250th anniversary of the first publication of Book I of the Commentaries. The Adelaide symposia generated two collections of essays: Blackstone and his Commentaries : Biography, Law, History and Re-Interpreting Blackstone’s Commentaries : A Seminal Text in National and International Contexts, which appeared in 2009 and 2014 respectively. Blackstone and his Critics complements the work undertaken in the first two collections, in a context of renewed interest in the Commentaries, also evidenced by the publication of a modern scholarly edition in 2016 (ed. D. Lemmings and W. Prest, Oxford: University Press).
The volume seeks to shed light on the mixed reception enjoyed by Blackstone and his Commentaries from the appearance of the latter to present times, mostly in the United Kingdom (chapters 1 to 9) and the United States (chapters 10 and 11), although the last essay gives examples of Blackstone’s reputation in the rest of the English-speaking world, and beyond. While the essays make a welcome effort to draw upon Blackstone’s life, his other works and his activity as a judge, there is no escaping the centrality of the Commentaries. It is striking how the author and his work became indissociable from the very first edition, and how criticising the one automatically reflected on the other. The criticisms operated at various levels and on various scales: they focused on Blackstone’s personal failings, such as his alleged greed and lack of social grace; on specific theoretical points, for instance his definition of law as command or his reliance on natural law; on his political positions, in particular his support for the omnicompetent sovereignty of Parliament; on his ideological stance, most notably his High Church positions; and on what he came to embody, i.e. conservatism. However, his points were sometimes used to make the case for political reform, although the latter exercise required selective quoting.
After an introduction which gives useful biographical background, particularly about Blackstone’s time at Oxford, and elements about the initial reactions to the Commentaries, the first essay puts the Commentaries in the context of other law books of the time to assess their originality. The author himself, Michael Lobban, performs the task of a critic of Blackstone’s method, highlighting its achievements and its flaws. On the one hand, Blackstone offered a clear narrative which explained the law and the reasons behind the rules, in innovative form and style. On the other hand, he was very dependent on pre-existing sources and incapable of theoretical creation. Critics highlighted numerous inconsistencies, even in his conception of the law – referred to as command, nature, and custom. Moreover, he sometimes offered superficial or even misleading accounts, for example with trusts and contracts. Blackstone’s readiness to refashion his material may be explained by his ultimate goal, which was to present his vision of the English constitution and to provide a political defence for it by weaving together a number of influences – Burlamaqui, Locke, Coke, Selden, Hale – which the chapter disentangles carefully.
One of Blackstone’s most prominent critics was philosopher and reformer Jeremy Bentham (1748-1832), who partly designed his own system in opposition to Blackstone’s, and who engaged in a “lifetime’s dialectic” with his former teacher, to borrow J.H. Burns’ phrase. Unsurprisingly, the introduction opens with a quotation from his Fragment on Government (1776), nevertheless juxtaposed with a sentence by George Wilson which suggests Bentham’s treatment may have been unfair. One of the interests of this collection of essays, from the point of view of someone who, like the present reviewer, came to Blackstone through Bentham, lies precisely in introducing other critics and other lines of argument, and broadening the scope of the reception of the Commentaries. In the second essay, Philip Schofield reminds readers about the origins of Bentham’s engagement: a critique of a short passage on the nature and origin of government, in which contradictions and ambiguities were systematically pointed out. The criticisms focused on three points: Blackstone’s methodology (presenting what is as what should be); his support for the theory of social contract; his theory of sovereignty. The chapter is built on a comparison of Bentham’s attack in A Fragment on Government as well as in a body of material regrouped under the title “Preparatory materials” from the same period, with that of a much later work – an unpublished and apparently unfinished essay composed in 1828, entitled “Blackstone familiarised”. The main evolution is consistent with Bentham’s own change of perspective: by the 1820s, he had come to locate the source of oppression not in deference to the authority of the past, but in the “sinister interest” of the rulers in maintaining and even promoting abuses. What is truly original is the form which “Blackstone familiarised” took, i.e. a theatrical performance that had appeared to Bentham in a dream, showing Blackstone conversing with Astræa, the Goddess of Justice, and her daughters – Felicia (Happiness), Gubernia (Government, or what the law is) and Dolosa (Deceitful, or what the law is pretended to be). The last element (law as it is pretended to be) is an innovation, in that early writings contrast law as it is with law as it should be.
The third essay, by Jessie Allen, builds on Bentham’s distinction between the role of the expositor (describing the law as it is) and that of the censor (prescribing what the law should be). It tries to make use of the notion of ritual to invalidate the criticism that Blackstone literally believed that judges discovered the law. The author takes up Bentham’s comparison of Blackstone with a religious practitioner, and adopts a different approach, reading the Commentaries’ account of judicial interpretation as a kind of ritual in which Blackstone participates. Here “ritual” is defined as relying on a “fictional performance” which “is not intended to deceive”. While after reading Bentham, one may wonder whether Blackstone’s attitude amounts to “deliberate hypocrisy” or “pathetic credulity” , the chapter offers a third way by suggesting that Blackstone was aware of the performative aspect of law-finding. The approach taken is quite original, but it is not always clear what exactly the concept of “ritual” adds to that of fiction. The last part of the chapter looks at the reception of Blackstone in contemporary American courts’ decisions. Blackstone was invoked both by conservative Supreme Court Justice Antonin Scalia, who claimed he was on the side of “originalism” (i.e. the doctrine according to which laws must be examined in the light of the meaning the Constitution was intended to have at the time it was drafted), and by progressive Justice Richard Posner. For the author, Bentham and Posner share an instrumental approach to judicial decisions, which has not “made a dent in the legal cultural commitment to the performance of judicial discovery.”  In a final twist, Bentham and Posner are presented as “themselves ritual practitioners par excellence” because of their unmasking endeavor. 
Chapters 4, 5 and 6 collectively give an overview of Blackstone’s position in the political and religious debates of the 1780s-1790s. The fourth essay, by Ian Doolittle, starts from J.G.A. Pocock’s suggestion that there were many Enlightenments, and locates Blackstone within the context of an Oxford Enlightenment. The Commentaries can be seen as “enlightened” because they are historically conscious. The author turns to other prominent Oxford figures – Edward Gibbon and Thomas Winchester – to show that they too were “enlightened” in that sense, a fact which according to him should not be obscured by their being on the conservative side of history, and their support for the established national Church in particular. The author dedicates most of the pages of this chapter to a discussion of Gibbon and Winchester. The actual criticism only appears at the end of the chapter, where the author explains that Blackstone’s justification of discriminatory religious laws and constant defence of England’s limits to religious toleration aroused the opposition of Rational Dissenting Enlightenment, thereby prefiguring the debate between Edmund Burke and radical reformers which was to appear in the aftermath of the French Revolution.
The fifth essay, entitled “Rational Dissent and Blackstone’s Commentaries”, by Anthony Page, centres on Joseph Priestley, the scientist and Presbyterian minister, who promptly published a pamphlet as a response to a precise section of the Commentaries – the chapter on “Offences against God and Religion” in the final volume, where Blackstone stated that failing to conform to the Church of England was still a crime, notwithstanding the 1689 Toleration Act. The chapter aims to explain why Priestley responded so strongly, and to show the impact of the controversy, which prompted Rational Dissenters to campaign for full religious liberty. Priestley’s engagement and confrontation with Blackstone – who replied publicly – through a series of pamphlets launched his career as a polemicist and made him a public figure. But Priestley has obscured other polemicists such as Reverend Philip Furneaux, who was more influential at the time. Blackstone was attacked as a representative of “the dominant conservative Anglican Enlightenment” , and the Dissenters’ response to Blackstone is analysed within the broader context of their changing relationship with the government since the 1770s. It is also presented as pitting “moderate Anglican Enlightenment” against “Rational Dissenting radical Enlightenment”.
Chapter 6, by Ultán Gillen, focuses on the reception of Blackstone’s writings in Ireland, and illustrates how local concerns determined which parts of the Commentaries were quoted and discussed – in the case of Ireland, his statements in support of penal laws against Catholics and of the sovereignty of the Westminster Parliament. Blackstone defined Ireland as a subordinate entity, over which Westminster exercised its sovereignty by right of conquest, a position which attracted a lot of criticism at a time when the status of the Irish Parliament was being discussed. An important motivation for his critics was his prominence, which made it important to challenge his arguments. Irish critics like Charles Francis Sheridan engaged with Blackstone because of his status, and refined their own theories in the process. Although his views were undeniably conservative, Blackstone was sometimes enrolled by progressives in the debate leading up to the Act of Union. While the Commentaries were very much present in the debates of the 1780s, by the 1790s, the impulse to criticise Blackstone had declined, since the mass revolutionary movement of that decade, the United Irishmen, did not base their argumentation on the British constitution, which they precisely aimed to overthrow. While acknowledging the contradictions and superficiality in Irish critics’ engagement with Blackstone, the author highlights the extent to which it “helped reshape Irish patriotism in a revolutionary age” .
The seventh essay focuses on Blackstone’s defence of a precise rule in family law: the exclusion of the half-bloods (i.e. half-brothers and sisters) from intestate succession. This position attracted criticism from subsequent authors and legal historians. Tim Stretton shows that Blackstone tried to justify his endorsement of this medieval exclusion by looking for a non-existent underlying logic, which seems to provide arguments to those critics who saw in Blackstone a blind apologist of existing laws and institutions rather than a figure of the Enlightenment. The question raised by the author is the following: why did Blackstone persist in defending an antiquated rule by relying on arguments which were weak, or even “laughable” ? While the chapter acknowledges the biases and flaws in Blackstone’s reasoning, it cautions readers about the need for historical perspective. Blackstone took the law of descents very seriously, and tried to give “an enlightened, rational, scientific analysis” by relying on custom . His critics, on the other hand, wrote “with the benefit of hindsight”, after the half-blood rule was removed by the Inheritance Act 1833. According to the author, Blackstone was guilty of “naivety”, rather than “cynicism” .
Questions of family law and property are tackled in the next chapter, written by Carolyn Steedman, from the angle of the doctrine of coverture, defined by Blackstone himself as the fact that “the very being and legal existence of the woman is suspended during marriage, or at least incorporated and consolidated into that of her husband.” (quoted p. 138) The chapter seeks to correct a few distortions by retracing evolutions in the reception of the doctrine, and by insisting on the nuances of people’s experience of the law in eighteenth-century England. Blackstone was not the only author to present the doctrine of coverture, nor did he invent it, but he attempted to provide a historical account of its origins. The author shows that his version of the doctrine was not widely circulated in his time. The feminist critique of Blackstone’s doctrine of coverture grew in the nineteenth century in the US, while still largely unnoticed in England, and was transported back across the Atlantic in the 1970s. It was revived by “early twentieth-century campaigners for women’s rights and late twentieth-century historians” . Did this retrospective criticism correspond to the subjective experience of Blackstone’s contemporaries? The chapter uses the life of a fictional middle-class girl and then young woman to identify when and how the latter would have come across Blackstone and his developments on the doctrine of coverture. Women’s experience was more complex than later critics tend to suggest, and complicated by socio-economic factors. The author insists on the fact that coverture could be circumvented in many ways, especially in equity courts, and that it was possible for married women to enter into contracts, for example to hire servants. Recent scholarship has shown that the doctrine “did not form a unitary, hegemonic system either in law or everyday life” [151-152].
The angle adopted in chapter 9, by David Lieberman, is that of legal education. Blackstone advocated university training, but did not manage to prevail against the dominant view that the proper places to gain legal education were courts and chambers. While Blackstone claimed that English law, as a rational science, was a fit subject for university, and a very useful one as an introduction to the general science of jurisprudence for the education of the elites of the country, his view was rejected, as evidenced by the positions of nineteenth-century education reformers John Austin and Henry Summer Maine. Although they did not directly engage with Blackstone, their embrace of Roman law and of a cosmopolitan programme not limited to English common law amounted to a repudiation of his theories. To them, Blackstone became an “emblem of scholarly error and obsolescence” . This did not prevent the Commentaries from being used as a textbook and reference. While A.V. Dicey shared the criticisms voiced by Bentham, Austin and Maine, he repositioned Blackstone’s achievement by branding him a literary genius. According to Lieberman, this rehabilitation required leaving aside Blackstone’s “express political goals”, and offered a “selective and tendentious reckoning of his contribution and its current meanings” .
The next two chapters discuss Blackstone’s reception in the United States in the nineteenth and twentieth centuries. Chapter 10, written by David M. Rabban, focuses on a representative of the historical school of American jurisprudence – William Gardiner Hammond, who published an innovative edition of the Commentaries in 1890, in order to “criticise and supplement the jurisprudential assumptions and historical content” of Blackstone’s work . Several problems were apparent to Hammond: Blackstone’s work was outdated; it was based on theories of natural law; Blackstone did not understand or even know about history. The historical school, which had superseded theories of natural law and viewed history as an evolutionary process and society as an organism, would provide a corrective. Hammond took issue with Blackstone’s treatment of feudalism in particular. He wanted to deal the final blow to Blackstone’s theory of law as a command, and his conception of sovereignty, which had survived – although marginally – in the United States. From a strategic point of view, attacking Blackstone, whose Commentaries were still widely read in American law schools, offered a way to circulate the views of the historical school in the notes and comments made by Hammond.
Chapter 11 centres on a progressive American jurist – Walter Clark – who had a rather conflicted relationship to Blackstone. On the one hand, he lamented Blackstone’s conservative influence on American lawyers, but at the same time, he frequently quoted the Commentaries in court, and not always to criticise them. American Progressives, who wanted to rely on legislatures to provide radical solutions for social issues, were bound to disagree with Blackstone, who favoured implementing gradual change through judicial decisions. Not only does the author of the chapter, John V. Orth, identify the criticisms levelled by Clark at Blackstone – his “supposed lack of sources”, veneration of social hierarchy and of “an outdated feudalism”, as well as his views on the position of women  – but he also highlights the biases in Clark’s critique, such as his “gratuitous ad hominem attacks”  or his exaggerations and inaccuracies. Finally, his attack on Blackstone’s traditionalism did not prevent Clark, as a judge, from relying on the Commentaries, particularly on the topics of property and public wrongs. The author notes that “in a few instances, Clark actually found support for his Progressive views in the Commentaries.”  In the final analysis, however, critiques such as Clark’s did not really affect the Commentaries’ standing in the United States, where they were still very much studied and quoted.
The last chapter retraces and compares the reception of the Commentaries in England and in the United States from Blackstone’s death to the present time. Wilfrid Prest identifies three periods. During the first one, from the 1780s to the 1840s, both the man and his work enjoyed mixed reputations. While Blackstone’s personal flaws were not forgotten, his Commentaries were already criticised for specific findings, but also for their general approach, with claims that Blackstone had plagiarised Montesquieu, for instance. The attack launched by Bentham was continued by his disciple John Austin, who became professor of jurisprudence at the University of London. Across the Atlantic, however, Blackstone’s reputation never really flagged, and after the 1840s, most new editions of the Commentaries appeared in the United States. In England, there were no attempts to restore Blackstone’s reputation until the 1930s, with the revisionist contribution by W.S. Holdworth, another incumbent of the Vinerian chair formerly occupied by Blackstone himself. Vol XII of History of English Law (1938) claimed that Blackstone was not as conservative and uncritical as commonly thought. However, real renewed interest in Blackstone only appeared in the 1980s, coming from “pillars of the establishment” but also New Left historians like E.P. Thompson – although the former largely outnumbered the latter. In the United States, the 1980s witnessed the emergence of a more politically-driven approach to Blackstone. While many contributions have been made by “scholars of a broadly conservative bent” , the conclusion raises the question of the impact of the embrace of both Blackstone and his work by the “radical right”.
Blackstone and his Critics offers a very rich journey in legal and political history, across almost three centuries, and around the world. The contributors, who are all History and/or Law scholars, bring invaluable expertise and a wealth of references, which are provided in footnotes, but not in a common bibliography. The intended readership is clearly of an academic kind, and is expected to be already familiar with legal and political theory and history. Each chapter is about twenty pages’ long, and provides a detailed, in-depth exploration of one aspect of the reception of Blackstone. While some chapters do form a whole with others (for instance chapters 4,5,6 on “Enlightenment Blackstone” or chapters 10 and 11 on “American Blackstone”), they may be read independently by readers who are only interested in one particular aspect. The titles are sufficiently clear to guide the reader, who can also use the index for reference. Taken collectively, the essays give an idea of the variety of controversies surrounding Blackstone and his Commentaries. The strength of the volume comes from its dual perspective: while some chapters give broad overviews, others focus on precise points. Its interest also comes from the critical eye which is cast on Blackstone’s critics themselves: the contributors highlight the biases, inconsistencies or even contradictions of the critiques they present. The volume does not try to smooth over the tensions and complexities of the reception of Blackstone’s writings, especially when it comes to their ideological import, thereby making a significant, multi-faceted contribution to Blackstone scholarship. While in the course of this book Blackstone may have been shaken on his pedestal – if he ever had one – his Commentaries undeniably remain “a benchmark legal authority”  worthy of academic interest.
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