Blackstone 8: Sexism & the Common Law

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).

CFAA 2021 Year in review

2021 CFAA Year in Review

In 2021 the United States Supreme Court finally considered what constitutes unauthorized access under the Computer Fraud and Abuse Act. It put a bullet in

Read More »

For media inquiries, please email info@torekeland.com

30 WALL STREET, 8TH FLOOR • NEW YORK, NY 10005

©2022 Tor Ekeland Law, PLLC   •  (718) 737-7264

Attorney Advertising   •   Past results do not guarantee future results   •   Licensed in New York and California