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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