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Blackstone's Science of Legislation

Published online by Cambridge University Press:  10 January 2014

David Lieberman
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Extract

In 1795, Dugald Stewart, the professor of moral philosophy at the University of Edinburgh and reigning Athenian of the North, observed in a famous estimate of the career of Adam Smith that “the most celebrated works produced in the different countries of Europe during the last thirty years” had “aimed at the improvement of society” by “enlightening the policy of actual legislators.” Among such celebrated productions Stewart included the publications of François Quesnay, Anne-Robert Jacques Turgot, Pedro Campomanes, and Cesare Beccaria and, above all, the writings of Smith himself, whose Wealth of Nations “unquestionably” represented “the most comprehensive and perfect work that has yet appeared on the general principles of any branch of legislation.” One of the more striking achievements of recent scholarship on eighteenth-century social thought has been to make sense of this description of Smith's Inquiry and to enable us better to appreciate why Smith chose to describe his system of political economy as a contribution to the “science of a legislator.” In a cultural setting in which, as J. G. A. Pocock has put it, “jurisprudence” was “the social science of the eighteenth century,” law and legislation further featured, in J. H. Burns's formula, as “the great applied science among the sciences of man.” Moralists and jurists of the period, echoing earlier political conventions, may readily have acknowledged with Rousseau that “it would take gods to give men laws.” Nevertheless, even in Rousseau's program for perfecting “the conditions of civil association”—“men being taken as they are and laws as they might be”—a mortal “legislator” appeared plainly “necessary.”

Type
Research Article
Information
Journal of British Studies , Volume 27 , Issue 2 , April 1988 , pp. 117 - 149
Copyright
Copyright © North American Conference of British Studies 1988

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References

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47 See Comm. (n. 13 above), vol. 4, chap. 33, where Blackstone offered a summary of English legal history. The novelty and sophistication of Blackstone's legal history has been recently canvassed in an important study by Willman, Robert, “Blackstone and the [Theoretical Perfection] of English Law in the Reign of Charles II,” Historical Journal 26 (1983): 39–70Google Scholar, though since challenged in parts by Cairns, John W., “Blackstone, the Ancient Constitution and the Feudal Law,” Historical Journal 28 (1985): 711–17Google Scholar.

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59 Ibid., 1:69–71. The structure of this conception of common law as received customary practice is explored by Simpson, A. W. B. in “The Common Law and Legal Theory,” in Oxford Essays in Jurisprudence, ed. Simpson, , 2d ser. (Oxford, 1973)Google Scholar; and by Postema, Gerald J. in Bentham and the Common Law Tradition (Oxford, 1986), pp. 3–38Google Scholar. I am much indebted to these two important discussions.

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70 Ibid., p. 161. Blackstone further explained that this conception of sovereign legislative authority entailed a restrictive reading of the controversial common law doctrine associated with Coke that “acts of parliament contrary to reason are void.” See his discussion of the common law rules for the construction of statutes at p. 91.

71 Ibid., pp. 161–62. Blackstone's concern to combat political radicalism has been suggested as the central intention of the Commentaries in two recent accounts: see Willman (n. 47 above), pp. 68–70; and Katz, Stanley N., in Blackstone, William, Commentaries on the Laws of England: A Facsimile of the first edition of 1765–1769, 4 vols. (Chicago, 1979), 1:x (editorial introduction)Google Scholar.

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76 Ibid., 4:3.

77 Ibid., pp. 1–19 (on the “Nature of Crimes and Punishments”).

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92 Comm., 4:420.

93 Ibid., 4:438–40, and 439n. This was the time of only the “theoretical perfection” of the law on account of the “great practical oppression” of Charles II's reign. For a fuller treatment, see Willman (n. 47 above).

94 See Comm., 4:427, where the phrase is used, after Hale, in reference to the consolidation of “the distributive justice of the kingdom” secured in the reign of Edward I; see 4:425; and Hale, pp. 101–2.

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100 Ibid., 1:4–6.

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130 Maitland's phrase, cited above at n. 9.

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