I’m just back from client meetings in London. While there I spoke with a Queens Counsel (only 10% of Barristers are “QC”) who shared my mutual love of legal history. I was asking him if there was a bookstore in town where I could get decent copies of the great 17th century English jurist Sir Edward Coke’s (pronounced “cook”) influential Institutes of the Laws of England. He directed me to the excellent legal bookstore Wildy & Sons, which is right by the Inner and Middle Temples, ground zero for the Anglo-American legal profession. Then he said, “You know, a lot of people accuse him of just making up a lot of the stuff in those books.”
I instantly thought of Blackstone, because I suspect him of passing off as settled law things he’s making up. People underestimate Blackstone when they paint him as a reactionary law professor promulgating on behalf of the elite. The young Jeremy Bentham famously attacked Blackstone as such. Bentham was wrong. Blackstone persuasively advocates radical opinions by making them seem the consequence of natural law. Even though concepts like life, liberty, and property are historical novelties at the time. Blackstone doesn’t challenge power as much as he subtly presents radical ideas as non-threatening to power.
Blackstone cloaks his radicalism well. He dresses it in conservative garb, and persuades us that he’s merely restating bedrock principles that have been around forever. Like all good persuasive lawyers do. But when you put together the mosaic of Blackstone’s opinions on things you get a picture of someone with progressive views for the time – anti death penalty, pro free speech, an advocate for legislative supremacy as the ultimate expression of the People’s sovereignty, religious tolerance. Life, liberty, property. Not all new ideas with him, but while we take these principles for granted, they were still tenuous when Blackstone wrote them. And in the Trump era, they seem tenuous too. There are lessons to be learned in how Blackstone sold these radical ideas to the power establishment he was part of.
When Blackstone isn’t innovating he’s solidifying liberty’s bulwark against the tyranny of all ages. He’s coy when speaking to Power. He knows how to do it. Take his view on religious tolerance. After dutifully acknowledging religion’s importance in society, to the point of saying apostasy is “highly deserving of human punishment” and that people who don’t believe are idiots, he proceeds to argue that because they’re idiots they shouldn’t be punished:
For undoubtedly all persecution and oppression of weak consciences, on the score of religious persuasion, are highly unjustifiable upon every principle of natural reason , civil liberty, or sound religion. But care must be taken not to carry this indulgence into such extremes, as may endanger the National Church: there is always a difference between toleration and establishment.”4 Blackstone: Of Public Wrongs 34 (Oxford ed. 2016).
Bentham thinks this type of approach, where religious tolerance is grounded in natural law while acknowledging the power of the church, is a sell out. I think it’s a clever way to assert religious tolerance while not drawing a reaction from the Church. Blackstone persuades people by pointing out religious tolerance isn’t a big deal. It’s not a threat. He’s not attempting, on the surface, to take the Church’s power away from it. On the contrary, he’s saying the Church is so powerful it doesn’t need to punish the idiots of weak conscience who are so stupid they don’t comprehend the true religion. Chill. You don’t need to do anything about them unless they fuck with you. This is persuasive advocacy because it directly addresses the psychology of the adversary and engages it, rather than ignoring it. And in the long run it weakens religious intolerance, because it’s just a small step from arguing that most religious intolerance isn’t justified to arguing that it never is. Blackstone constantly makes these kinds of persuasive arguments where he presents radical ideas as non-threatening to power.