It’s common to criticize Blackstone for embracing the Common Law’s sexism. But a passage I read the other day made me critical of this attitude towards his work. It made me wonder if it is more a product of confusing what Blackstone wrote with such clarity about – the Common Law – with his personal views.
A passage where he criticizes the doctrine of primogeniture (inheritance by the first born, usually male) triggered this critical attitude. A superficial reading of Blackstone makes you think he’s a conservative. I think Jeremy Bentham makes this mistake. In contrast, a more in-depth reading hints at a kind of radicalism cleverly masquerading behind a traditionalist mask. Like when he talks about how under English law “the male issue shall be admitted before the female. ” The justification he gives is that “as our male lawgivers have somewhat incomplaisantly expressed it, the worthiest of blood shall be preferred.” (2 B 143) But this isn’t a justification he’s endorsing.
“Incomplaisantly” means in a nonobliging, noncourteous manner. Blackstone is not endorsing English law’s sexism when it comes to inheritance; he’s pointing it out. He further notes that this sexist doctrine is derived from feudal law – a type of law he wasn’t a big fan of because the Normans imposed it after they conquered England in 1066. (2 B 143). He points out that Dane Law wasn’t sexist when it came to daughters inheriting, and then does a comparative law analysis listing different legal systems approach to the matter. And then he subtly makes what for an 18th century dead white male Oxford Law professor passes for a feminist legal argument. Namely, feudal law’s sexism didn’t abolish women’s right to inherit – feudal law’s sexism was “enforced” against that right, but it never extinguished that right. (2 B 144) Presumably, once feudalism’s yoke is removed women can exercise the right to inherit as men. As basically happened.
All references are to the 2016 Oxford press edition. 2 B 143 = Volume 2 Commentaries on the Laws of England, page 143 (using the modern pagination).