On Looking Again at Blackstone

|The Volokh Conspiracy |

Yesterday afternoon I was reading Blackstone (§ 2, Of the Nature of Laws in General), for a project on legal interpretation. A few miscellaneous observations:

1. There is a tension, or at least puzzling relation, between Blackstone's observation that "a bare resolution, confined in the breast of the legislator, without manifesting itself by some external sign, can never properly be law" (p. 45) and his appeal to "the reason and spirit" of a law as "the most universal and effectual way of discovering [its] true meaning" (p. 61), when the latter is accompanied in his exposition and illustration by no sign.

2. His reference to the need for "some external sign" is intriguingly resonant with the literature in the seventeenth and eighteenth century in the Church of England on the sacraments as signs.

3. He uses "democracy" and "republic" interchangeably (pp. 49-50). That is, he distinguishes "three regular forms of government" identified in antiquity, namely democracy, aristocracy, and monarchy, and then he proceeds to compare them, alternating in his description of the first between democracy and republic: "In a democracy, where the right of making laws resides in the people at large, . . . . In aristocracies there is more wisdom to be found, than in the other frames of government; being composed, or intended to be composed, of the most experienced citizens; but there is less honesty than in a republic, and less strength than in a monarchy. . . . Thus these three species of government have, all of them, their several perfections and imperfections."

4. He has an interestingly negative concept of the separation of powers in the English constitutional system, which is similar to what Akhil Amar and others have written about how the separation of powers in the American constitutional system requires the concurrence of all three branches for a conviction to occur. Blackstone says: "each branch being armed with a negative power, sufficient to repel any innovation which it shall think inexpedient or dangerous" (p. 51).

5. Blackstone uses "misdemeanors" not in a technical sense but as a term meaning something like "misdeeds" (p. 55: "These become either right or wrong, just or unjust, duties or misdemeanors, according as the municipal legislator sees proper . . . ."). That, it has been argued, is the usage in the Constitution.

6. Blackstone's description of laws that are mala prohibita is redolent of Coke and Holmes and efficient breach theory: "But in these cases the alternative is offered to every man; 'either abstain from this, or submit to such a penalty;' and his conscience will be clear, whichever side of the alternative he thinks proper to embrace" (p. 58).

7. Blackstone does not think equity can be reduced to rule (p. 62). Hamilton thought it had been, saying in Federalist No. 83 that "the principles by which [equitable] relief is governed are now reduced to a regular system."

8. Blackstone seems to embrace three propositions (pp. 61-62):

(1) it is good to interpret laws according to their "reason and spirit";
(2) interpreting laws according to their reason and spirit gives rise to equity (in the Aristotelian sense of exceptions in cases not foreseen by the legislator);
(3) equity (in this sense) is dangerous and regrettable.

I was familiar with each of these propositions separately (as propositions advanced by Blackstone), but I had forgotten or not realized how close their connection was. I was reminded of that wonderful passage in Howard's End, where a couple are looking for a house, and the wife says that they want "a small house, with large rooms, and plenty of them." Can all three be held?

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  1. “2. His reference to the need for “some external sign” is intriguingly resonant with the literature in the seventeenth and eighteenth century in the Church of England on the sacraments as signs.”

    I’m trying to do a bit of reading on this subject myself – do you have any good citations, especially from or about the 17th century?

  2. A dangerous, regrettable procedure is still correct if the alternative procedures are worse.

    1) The ideal case is a law that perfectly enacts justice in a clear and straightforward manner knowable to all in advance. This is fairly easy to demonstrate to be utterly impossible, at least to beings of human intellect.

    2) Every technique to deal with the impossibility has myriad drawbacks, as can also be easily demonstrated.

    3) Accordingly, justice requires the use of methods with known drawbacks to expound law. To properly mitigate the effect of these drawbacks, one must have a frank understanding of what those drawbacks are.

    1. 1) The ideal case is a law that perfectly enacts justice in a clear and straightforward manner knowable to all in advance. This is fairly easy to demonstrate to be utterly impossible, at least to beings of human intellect.

      Infinite gods suffer the Halting Problem as well.

  3. “He uses ‘democracy’ and ‘republic’ interchangeably”

    This shouldn’t surprise anyone. The distinction is overblown and is often what a person uninformed about political theory says to sound smart.

    Yes, representative democracy is different than direct democracy. And yes, many framers were suspicious of direct democracy and even some forms of what they saw as overdemocratic representative democracy. But the usual formulation- “we are a republic and not a democracy”- is way too facile.

    1. No, it’s not facile.
      The push from the Old Left–ever since the 60’s, when they were the New Left–is for a more plebiscitary democracy = participatory democracy= democracy. That push continues apace even today.
      In a republic the people don’t decide, they decide who decides.

      1. What you call a republic has, for centuries, also been called a form of democracy.

        1. Nope, there is overlap, but it’s not complete. A government with representatives appointed by governmental sub-divisions, would still be a republic, but not a democratic one.

      2. If that’s an agenda of the left they’re in very deep. Since like the Founding.
        oh no they got to the Conspiracy!

    2. Exactly. “We’re a republic, not a democracy” is a commonplace observation that almost never adds any meaning or substance to a conversation (I always want to ask, “Did you think of that all by yourself?” but that would also not add to the conversation). The WaPo and Volokh links below explain it well.

  4. I was reminded of that wonderful passage in Howard’s End, where a couple are looking for a house, and the wife says that they want “a small house, with large rooms, and plenty of them.” Can all three be held?

    Quintus Teal managed it.

    “And He Built a Crooked House” — Robert Heinlein

    1. Another approach (which may actually prove doable in our universe, though not alas soon) is a house consisting of one very rapidly configurable large room. Look up “utility fog.”

    2. Just say “TARDIS,” it’s OK.

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