Tuesday, December 23, 2014

Why we need the Common Law: Review of "Sir William Blackstone and the Common Law" by Robert Stacey

If you are anything like the bulk of college freshmen I run into (including myself, when I was a freshmen--not that I ran into myself, that's a bit too existential for my tastes), you've probably never heard of the "common law." I don't know if this is a reflection on the current state of education or just a sad state of affairs politically and culturally, but in either case Robert Stacey's book Sir William Blackstone and the Common Law is a good step towards correcting that deficiency.

The Summary:

In this short volume, Stacey gives a good overview of both the life and thought of William Blackstone and the common law in general. In seven chapters, Stacey provides:
  1. An overview of the common law, and some reasons Stacey thinks its study is relevant for today.
  2. A brief biography of Blackstone himself.
  3. A brief overview of the English common law tradition.
  4. An overview of Blackstone's Commentaries on the Laws of England.
  5. A quick summary of the influence Blackstone's Commentaries had on the Founding and on early American law (from the mid 18th century through the late 19th).
  6. Some criticisms of Blackstone, and possible responses to those criticisms.
  7. Why Blackstone's thought needs to be brought back into the modern world. 
Especially useful is Stacey's definition of the common law and why it matters for liberty. He first cites Arthur Hogue's definition:
[The] common law is a body of general rules prescribing social conduct, enforced by the ordinary royal courts, and characterized by the development of its own principles in actual legal controversies, by the procedure of trial by jury, and by the doctrine of the supremacy of the law. (48)
Stacey then refines this definition by working out the various parts of the phrase "English common law." Specifically, he argues that it is "law," which is intended to protect "people, their property, and their interests" from criminals, from other nations, and most importantly "from their own government which would otherwise exercise considerable power without external checks." (48) Likewise, he notes that the "common law is English," and shouldn't be grafted wholesale into other nations or cultures. (48) Even those societies which are common law societies originally derived from English law should have their own varieties. Finally, common law "is common in the sense that it is applied to the people by the people.... The common law is even superintended by the people it governs by means of the jury system... The 'commonness' of the common law is further underscored by the fact that the king himself was subject to it. Under common law, law itself is supreme... and king and peasant alike are subject to the same rule of law." (49)

And of course, the fundamental non-negotiable aspect of the common law is that it is rooted in history, rather than legislation. That is, the common law is not something that a legislature sat down and drew up, it rather develops over decades and centuries through the careful (and sometimes less-careful) application of judicial decisions by judges and juries in particular instances. More on that below.

The rest of the book is dedicated to Blackstone himself and his place, and the place of the common law, in American legal tradition. For a short book, this text tackles a large number of issues with clarity and thoughtfulness, though perhaps not always with accuracy.

The Strengths:

As I noted above, one of the strengths is that this is a book on the common law, which Americans desperately need to know more about if we're to hold on to our traditional freedoms. Even better, Stacey is a competent author and manages to fit a lot of information into a short volume without being either too dense or too breezy. His short exposition on the role of the common law in the movement for American independence and the drafting of the U.S. Constitution is excellent, and helps explain where all those long passages in the Declaration of Independence (that none of us ever read) come from and why they are important. Traditional freedoms like that of trial by jury, and protecting from troop quartering, and right of petition (83-84) are so ingrained in us today that most people never even think about them. And yet, they came from somewhere and have a long history in the common law tradition that is worth understanding if we wish to preserve them.

The Weaknesses:

While the weaknesses in no way offset the value of the strengths, they should not be ignored. And there are some serious weaknesses here.

First and foremost, this book is at times far too disconnected from history, especially in the discussion of the origins of the common law. The author is too quick to try to spot the Bible behind the common law. And while I know tradition states that Alfred the Great reformed the law code with the Ten Commandments in mind, in reality the method of law that is so central to the common law has origins that are mostly lost to history, and almost certainly Germanic (and hence probably at least partially pagan) in origin. Which is not to say that the law has no value, just that we need not necessarily bend over backwards to baptize something that need not be baptized. After all, as Christians our doctrine of common grace does not require that every decent and stable law code be built directly upon the Bible. The Holy Spirit can and does move unbelievers to make good public policy as well as, and very often even better than, Christians. It is part of our responsibility as Christians to recognize the wisdom and good works of non-Christians, enjoy the benefits thereof, and praise God for His kindness in giving these common grace gifts to the world. We do not--we should not--try to twist the people who hold those gifts into our own image just so we will feel better about enjoying them. However Christian Alfred the Great was, and whatever work he did with the Ten Commandments (and let's be honest, Early Medieval England is not a hotbed of clear and thorough historical sources), his source material was certainly not Christian in origin. And that's fine, because we can still see that it is a good system of laws.

Second, the book could have talked a bit more about the role of juries and courts in the common law. The truly distinctive trait of the common law is that it is not the civil law. That is, the common law has never been voted on or passed by a legislature. It is simply a body of law that has grown and developed under the influence of judges and juries over the centuries. It is possible that this was not emphasized because Blackstone himself doesn't emphasize it (I haven't read much of Blackstone, so I couldn't say), which would be fine. It could also be because the book was supposed to be only a short introduction, which would also be fine. But, the lack of focus on how the common law develops could also be because the author didn't want to emphasize too much the apparent anti-democratic nature of the common law, which would be much less fine.

I say "apparent" anti-democratic nature because I would want to qualify that a bit--juries are inherently democratic institutions (far more so than professional, life-tenured judges). Democracies at least since ancient Athens have used juries as the means of letting the community decide innocence or guilt when it comes to a crime. What the common law adds is that the jury's decision becomes a part of the law itself. The democratic institution becomes the means of growing the law.
That, of course, does not work in the American mind. For us, "democracy" means "the people and their representatives", where "their representatives" can mean Congress or the President, but not the judicial system. Certainly not the courts, and certainly not a bunch of ignorant farmers chosen by lot being swayed by slick-tongued lawyers. The common law, on the other hand, says that it's exactly these farmers who, over the course of a century or seven, will slowly make good and bad decisions such that a local body of law grows that is representative of the people, just and wise, worthy of being lived under, and good for us all. Again, working these ideas out in detail may have just been too much for a short introduction, but the jury system really is central to English common law and, I can only assume, to Blackstone's writings.


Even with these weaknesses, this book is worth your time and attention. The common law is essential for modern Americans to understand, and if we want to preserve the rights and traditions that we enjoy we had better understand the system in which they developed. Sir William Blackstone and the Common Law is a good step in that direction.

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