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15 - Blackstone, an English Institutist: Legal Literature and the Rise of the Nation State

from BLACKSTONE, FEUDALISM, AND INSTITUTIONAL WRITINGS

Published online by Cambridge University Press:  25 October 2017

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Summary

While on publication in the 1760s Blackstone's Commentaries gained a favourable reception, the criticisms made in 1776 by Bentham in the Fragment on Government did such serious damage to Blackstone's reputation that, in the nineteenth century, among many scholars, his standing was low. Thus, in Austin's Lectures the Commentaries are most severely taken to task for what Austin considered to be their deficiencies. Austin's and Bentham's criticisms of Blackstone's methodology, structure, philosophising, and lack of a strong critical attitude were so influential that Sir William James in an 1881 case considered it appropriate to describe Blackstone as “the somewhat indiscriminate eulogist of every peculiarity and anomaly in our system of laws”. Bentham and other critics had questioned Blackstone's account of natural law and his definitions of law; but in 1861 Sir Henry Maine went so far as to suggest that Blackstone plagiarised Burlamaqui. Since then, critical opinion has swung the other way, with the merits of the Commentaries being generally recognised. Finnis has argued that the definitions given by Blackstone relate to the logical structure of the Commentaries and that there are not the contradictions in his work so often asserted. The allegation of plagiarism of Burlamaqui has been refuted. Professor Posner has argued that Bentham's attack on the Commentaries was not only intemperate but fundamentally misconceived, and that Blackstone was the first to describe law “not as a speculative abstraction or a collection of rules but as a functioning social system”, which he did by combining the approach of Montesquieu with that of Bracton “to demonstrate how those laws operated to achieve the economic, political, and other goals of the society”.

Furthermore, the influence of Blackstone on English law is now stressed, whether that influence be considered good or ill. Thus, while Holdsworth argued that Blackstone was important in giving a complete synthesis of English law, Professor Milsom has recently gone beyond this to argue that the Commentaries helped change English common law from a system of actions to a body of substantive law. The late Sir Otto Kahn-Freund also considered that Blackstone had influenced the development of substantive English law, and he therefore argued that Blackstone's treatment of employment as a status retarded the development of contractual treatment of employment law in England.

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Law, Lawyers, and Humanism
Selected Essays on the History of Scots Law, Volume 1
, pp. 413 - 461
Publisher: Edinburgh University Press
Print publication year: 2015

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