keskiviikko 25. maaliskuuta 2015

Sir William Blackstone: Commentaries on the Laws of England (1766)

No wonder how silly it seems to us nowadays, it has been traditional in universities that students of law did not learn the laws of their own countries, but laws of ancient Rome. This was not just a perverted antiquarian interest, but Roman law was often felt to be an ideal to which modern systems of law should strive for – indeed, especially in the continent many courts did adopt some predicts from it. Furthermore, the Roman law was followed by one important institution in Europe, namely, the Catholic Church.

Sir William Blackstone's commentaries are meant to rectify the lack of knowledge for English students of law. At the same time, Blackstone attempts to show how reasonable the English laws are – for instance, he emphasises the respect of freedom in English law, which is so great that even a slave landing in English soil will automatically gain liberty.

I am obviously not going to go through the whole of this large treatise, and one might even wonder what such a book on law has to do with philosophy. It is now more of a case who was interested of the book – or more likely, who was interested enough to insult it. Bentham, a philosopher I will read some time in the future, was apparently quite critical of Blackstone's treatise – Bentham thought that no laws should be thought good just because they were handed down by the tradition.

In any case, Blackstone's book does have its more philosophical parts, especially in the introductory section, in which he explains what it means to be a law. Rather traditionally, Blackstone relates laws of nature as laws governing the movement of bodies with laws of human behaviour. Furthermore, he also follows tradition in speaking of a natural law, that is, law that naturally governs all human behaviour and decides what is morally right and wrong, permissible and not. Like in case of laws of nature, Blackstone thinks that the validity of the natural law is grounded on God's will. This might sound a bit old-fashioned these days, but the very idea of a culturally neutral basis on which to decide right and wrong – and especially on which to decide if laws of a nation are right and wrong – is one that seems still viable today.

When one accepts the existence of natural law, it becomes then quite natural to ask what makes it right that states make more laws to govern human behaviour. Following Locke, Blackstone follows a very common idea – that of a social contract – governments can pass laws, because the people have agreed to follow such laws or any laws government decree. Blackstone does not completely accept the theory, but admits the idea of an original contract to be nothing else than a convenient fiction – people implicitly accept the laws of the land they've chosen to live in. This sounds a bit spurious, since people sometimes have not accepted the laws of their home country, and indeed, often have no say on the matter where they live, political, cultural and even language barriers truncating the possibilities considerably.

I suspect this suffices for a quick look on Blackstone's book, since I am not about to go to technicalities of English law. Next time I shall look in more detail at some French notions of politics and economy.

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