If you want a rough picture of my legal philosophy, to the extent I can be said to have one, it’s a mix of admiration for Blackstone while simultaneously agreeing with Jeremy Bentham’s scorching critique of Blackstone as everything that’s wrong with the “Man.” That’s because I’m a believer in perspectivism – the art of switching paradigms and viewpoints in order to gain a deeper understanding of them.
My perspectivism is a result of my view that the background of our belief systems is contingent on both our biological and social evolution, neither of which are necessarily founded on any universal truths but rather the brute utilitarian processes of nature and society. This thought is nothing original on my part, I’m just taking my cue from thinkers I’ve come across, particularly John Searle, and Nietzsche. But for the moment, I’m not here to argue metaphysics, ontology, epistemology, or ideology.
I’m here to jot some quick notes on Blackstone as I slowly make my way through his magnum opus “Commentaries on the Laws of England.” Bentham is right, you don’t get much more establishment than Blackstone – an Oxford professor who ended up as solicitor general for the Queen at one point, and who made a ton of money of the Commentaries (good for him). But it’s precisely because he’s such an Establishment figure that he does such a good job with the task of outlining the background the establishment operates from, and against. And from one perspective what he did was radical.
I say radical because he places the People first in his work, arguing that life, liberty and property are derived from natural law – whatever the merits of that view, which he’s picking up from Locke and others – and then goes on to outline how and why the law is justified in limiting those natural rights in the name of civil society. But by placing the People first, followed second by the legislature (Parliament), and then third by the Executive (the Monarchy) he’s guaranteeing the right of the People to usurp the latter two when they overstep. And the radical act is that he canonized that viewpoint, better than anyone else, in the Establishment’s background paradigm.
Blackstone, of course, deeply influenced the writing of the Constitution, and I recommend reading the Constitution again before picking up Blackstone because you’ll constantly notice things that the Framers either incorporated or changed from Blackstone. Impeachment being the biggest one I’ve come across so far. Blackstone argued that you can impeach the Executive’s ministers, but not the Executive. Obviously, the Framers departed from Blackstone on that.
We’re out of time this morning. I will continue tomorrow.