: Blackstone And His Commentaries – Biography, Law, History

Blackstone And His Commentaries – Biography, Law, History

Adam Webster

Prest-Blackstone-and-his-commentaries-smWilfrid Prest (Ed); Hart Publishing, 2014; UK£20.00 (paperback)

Williams Blackstone’s Commentaries on the Laws of England (1765-69) is arguably one of the most influential legal texts in the common law world. In Australia, courts today still make reference to the Commentaries. This collection of essays was the product of a symposium held in Adelaide in 2007 on ‘William Blackstone: Life, Thought, Influence’. The collection was first published in hardback in 2009 and in 2014 has been republished in paperback. The timing of the rerelease of this collection could not be more appropriate, with 2015 marking 250 years since the publication of the first volume of the Commentaries.

The collection of essays examines Blackstone’s life, his work and the influence of that work on the development of the law. The collection is divided into four parts, dealing with these three topics in turn. The fourth and final part contains two chapters: a chapter (by Morris Cohen) on bibliography and a chapter (by JH Baker and Wilfrid Prest) on iconography.

The first part focuses on Blackstone’s life. Chapter 1 (by Wilfrid Prest) explains how further research into Blackstone’s life can provide a greater understanding of ‘how that exceptionally influential book came to be written in the way it was’ (p 14). Chapter 2 (by Carol Matthews) discusses Blackstone’s interest and study of classical architecture and evaluates whether this study influenced the methodology and structure of his legal writing. Chapter 3 (by Norma Aubertin-Potter) focuses on Blackstone’s time as a fellow at All Souls College, Oxford and his friendship with Benjamin Buckler, a colleague at All Souls. Chapter 4 (by Ian Doolittle) explains the unlikely connection between William Blackstone and William Prynne and examines the influence of Prynne’s work.

The second part examines Blackstone’s thought. Chapter 5 (by John H Langbein) critically analyses the judicial process as explained by Blackstone. Langbein is critical of the Commentaries, arguing that they fail to explain ‘why did the common law take shape as it did, what is the logic of this rule or that, why does the system work as it does?’. Chapter 6 (by John V Orth) examines Blackstone’s rules of statutory construction. Chapter 7 (by Mary Sokol) and Chapter 8 (by Tim Stretton) examine Blackstone’s views of marriage and coverture. Chapter 9 (by Thalia Anthony) examines the use of the Commentaries in the colonies. Anthony’s excellent analysis explains that Blackstone’s work was used to justify colonisation and the application of the English law in the colonies ‘in the absence of clear legal authority such as British government policy, British case law, or international law’ (p 129) and submits that this was in fact a ‘skewed’ reading of the Commentaries (p 150). Chapter 10 (by Nicole Graham) focuses on the development of real property law away from Blackstone’s description of the law in terms of relations between persons and ‘things’ to one which understands property rights in terms of rights between persons. Graham explains that this dephysicalisation of property law was advanced by Jeremy Bentham in response to Blackstone’s writings and developed further in the 20th century by legal scholar Wesley Hohfeld. Graham identifies a number of weakness with dephysicalised property law and argues that ‘the most helpful thing we can do is examine its origins and its ongoing utility’ (p 167).

The third part of the collection examines the influence of Blackstone’s Commentaries; as demonstrated, this extends well beyond England. Chapter 11 (by Michael Hoeflich) focuses on the influence of the Commentaries in the United States. In America, the Commentaries were so popular that legal scholars started to develop annotated versions of the Commentaries with references to American law. The influence of Blackstone’s work on the development of American law is significant. As is noted in an earlier chapter, up until 1828 the Commentaries are cited in about 6.5 per cent of all state and federal reported cases in the US (p 77). Chapter 12 (by John Emerson) considers whether Blackstone’s work had any influence on the French legal system and Chapter 13 (by Horst Dippel) examines Blackstone’s influence in Germany. While much has been written about the importance of Blackstone’s work in the development of the law in the US, these two chapters provide an interesting insight into the influence of his work in continental Europe.

This edited collection demonstrates that there is still much to be said, and a great deal that is still unknown, about William Blackstone and his work.

ADAM WEBSTER teaches law at Adelaide Law School.

(2015) 40(1) AltLJ 69
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