just for giggles i decided to take a look at “commentaries on the laws of england,” by william blackstone, accorded to have been written between 1765 and 1769, for a series of lectures delivered at oxford university.
no well educated colonial american politician likely found himself unfamiliar with his thought, certainly no lawyer worthy of calling himself the same would have been without the work as a tool of his profession in his library, within mere years of its publication. as noted by stanley katz in an introduction to vol. 1 of a four volume set, the university of Chicago press 1979:
sir william blackstone's commentaries on the laws of england (1765-1769) is the most important legal treatise ever written in the english language. it was the dominant lawbook in england and america in the century after its publication and played a unique role in the development of the fledgling american legal system. … . page iii.
blackstone’s views may not have been determinative of english and american views on all things, but they were most certainly formative, considered to such an extent as to have shaped the discussion on many subjects, and most certainly reflective of the dominant views of his day.
he was decidedly conservative, and he was not a believer in social upheaval and most certainly not of revolution. he saw in social convention, the law and the bedrock of religious belief virtue and moderation conferred by stability and civility.
i am a lawyer, and have had recourse to blackstone many times over the years as a lawyer. as katz notes in the introduction, “… , it can still be read with pleasure in the late twentieth century.” page iv. so it was not a great surprise, but of curious relevance to a previous discussion herein on religious world views, when I came across the following passages from the commentaries regarding natural law as viewed in the west, and more particularly within our anglo saxon and norman heritage as speakers of english and the descendants of that intellectual tradition.
in the following passages blackstone discusses his views of those consequences following the creation of man, and of a natural order and its derivative institution of law in human affairs, by a god that he views not only as omnipotent, but as wise and beneficent. these views, are of course, in sharp contrast with the dogma of islam and hostility of the theologians of islam toward free will and intellectual inquiry into such matters.
it is the general application of these views to our traditions of civil law, and indeed the rather formative aspect the application of these views has to the traditions of civility and tolerance in our common law: it is not an exaggeration to say that the general attitudes expressed by blackstone, and held by very many of his contemporaries, have led to the prosperity and tolerance the western world has experienced, in relative terms, for the past 300 years.
blackstone is one of the finest writers and draftsman in the tradition of the common law. it serves little for me to paraphrase or crib his thought, so i shall just set the following passages out at some length, and allow you, gentle reader, to enjoy writing, exposition and persuasion at their finest.
said blackstone, in section ii, of the nature of laws in general, in the introduction to the commentaries:
this then is the general signification of law, a rule of action dictated by some superior being; and in those creatures that have neither the power to think, nor to will, such laws must be invariably obeyed, so long as the creature itself subsists, for it’s existence depends on that obedience. But laws, in their more confined sense, and in which it is our present business to consider them, denote the rules, not of action in general, but of human action or conduct: that is, the precepts by which man, the noblest of all sublunary beings, a creature endowed with both reason and freewill, is commanded to make use of those faculties in the general regulation of his behavior. page 39, commentaries.
in this passage blackstone assumes, if not overtly argues, that god would not have created man with the faculties of reason and will had god not meant those faculties to be put to use: indeed, blackstone observes that having been so endowed by his maker it is man’s obligation to apply those faculties in “…the general regulation of his behavior.” one can almost hear blackstone say under his breath, god may have thought this creature to prove contentious and a bit prickly, and imagine a godly smile over his handiwork.
blackstone continues:
man, considered as a creature, must necessarily be subject to the laws of his creator, for he is entirely a dependent being. a being, independent of any other, has no rule to pursue, but such as he prescribes to himself; but a state of dependence will inevitably oblige the inferior to take the will of him, on whom he depends, as the rule of his conduct: not indeed in every particular, but in all those points wherein his dependence consists. this principle therefore has more or less extent and effect, in proportion as the superiority of the one and the dependence of the other is greater or less, absolute or limited. and consequently as man depends absolutely upon his maker for every thing, it is necessary that he should in all points conform to his maker’s will.
this will of his maker is called the law of nature. for as god, when he created matter, and endued it with a principle of mobility, established certain rules for the perpetual direction of that motion; so, when he created man, and endued him with freewill to conduct himself in all parts of life, he laid down certain immutable laws of human nature, whereby that freewill is in some degree regulated and restrained, and gave him also the faculty to reason to discover the purport of those laws. pages 39-40, commentaries.
in the world view of our intellectual tradition, as partaken of and as formed by the contribution of blackstone’s views, the law of nature and god are discoverable by the use of human intellect, inquiry and presumably discussion, and are not wholly dependent upon divine revelation or imposition: as we shall see, however, blackstone also respected divine revelation as a wellspring of human law. there is, however, every indication in his views that man having discovered the “…purport of these laws. …” man is free to partake of and shape the wisdom so obtained. he need not turn to god as supplicant for everything that he discerns reasons or discovers, but may apply it as the fruit of his will, reason and endeavor.
these are liberating and ennobling views, and blackstone next considers why this should be so, and considers the nature and quality of the supreme maker who would imbue humans with such capacities:
considering the creator only as a being of infinite power, he was able unquestionably to have prescribed whatever laws he pleased to his creature, man, however unjust or severe. but as he is also a being of infinite wisdom, he has laid down only such laws as were founded in those relations of justice, that existed in the nature of things antecedent to any positive precept. these are the eternal, immutable laws of good and evil, to which the creator himself in all his dispensations conforms; and which he has enabled human reason to discover, so far as they are necessary for the conduct of human actions. such among others are these principles: that we should live honestly, should hurt nobody, and should render to every one it’s due; to which three general precepts Justinian has reduced the whole doctrine of law.
but if the discovery of these first principles of the law of nature depended only upon the due exertion of right reason, and could not otherwise be attained than by a chain of metaphysical disquisitions, mankind would have wanted some inducement to have quickened their inquiries, and the greater part of the world would have rested content in mental indolence, and ignorance it’s inseparable companion. as therefore the creator is a being, not only of infinite power, and wisdom, but, also of infinite goodness, he has been pleased so to contrive the constitution and frame of humanity, that we should want no other prompter to enquire after and pursue the rule of right, but only our own self-love, that universal principle of action. for he has so intimately connected, so inseparably interwoven the laws of eternal justice with the happiness of each individual, that the latter cannot be attained but by observing the former; and, if the former be punctually obeyed, it cannot but induce the latter. in consequence of which mutual connection of justice and human felicity, he has not perplexed the law of nature with a multitude of abstracted rules and precepts, referring merely to the fitness or unfitness of things, as some have vainly surmised; but has graciously reduced the rule of obedience to this one paternal precept, “that man should pursue his own happiness.” this is the foundation of what we call ethics, or natural law. for the several articles into which it is branched in our systems, amount to nor more than demonstrating, that this or that action tend to man’s real happiness, and therefore very justly concluding that the performance of it is a part of the law of nature: or, on the other hand, that this or that action is destructive of man’s real happiness, and therefore that he law of nature forbids it.
……
but in order to apply this to the particular exigencies of each individual, it is still necessary to have recourse to reason; whose office it is to discover, as was before observed, what the law of nature directs in every circumstance of life: by considering, what method will tend the most effectually to our own substantial happiness. and if our reason were always, as in our first ancestor before his transgression, clear and perfect, unruffled by passions, unclouded by prejudice, unimpaired by disease or intemperance, the task would be pleasant and easy; we should need no other guide but this. but every man now finds the contrary in his own experience; that his reason is corrupt, and his understanding full of ignorance and error.
this has given manifold occasion for the benign interposition of divine providence; which, in compassion to the frailty, the imperfection, and the blindness of human reason, hath been pleased, at sundry times and in divers manners, to discover and enforce it’s laws by an immediate and direct revelation. the doctrines thus delivered we call the revealed or divine law, and they are to be found only in the holy scriptures. these precepts, when revealed, are found upon comparison to be really a part of the original law of nature, as they tend in all their consequences to man’s felicity. but we are not from thence to conclude that the knowledge of these truths was attainable by reason, in it’s present corrupted state; since we find that, until they were revealed, they were hid from the wisdom of ages. as then the moral precepts of this law are indeed of the same origin with those of the law of nature, so their intrinsic obligation is of equal strength and perpetuity. yet undoubtedly the revealed law is (humanly speaking) of infinitely more authority that what we generally call the natural law. because one is the law of nature, expressly declared so to be by god himself; that other is only what, by the assistance of human reason, we imagine to be that law. if we could be as certain of the later as we are of the former, both would have an equal authority; but, till then, they can never be put in any competition together. pages, 40 to 42.
this last paragraph is a subtle structure.
it is an expression of intellectual limitation and humility that works in two directions. it is a humility that does not deign to speak for god via the human voice, and leaves the workings of revelation to speak for themselves. it strikes me rather curiously as i think about it, but i think that blackstone would have been reluctant under any circumstance to have proclaimed himself the prophet and voice of god.
he seems perfectly contented to have let revelation speak for itself.
he seems, on the other hand, entirely comfortable with the notion that man is indeed fallible and limited in his reason, and while he is proud of the capacity of man to reason and to ameliorate and improve his conduct morally and spiritually upon this earth, (the function, by the way, we should remind ourselves, of human law) the notion of such fallibility cautions man, and a man, to speak with excessive certitude about the divining of god.
yet, blackstone is not content to envision man as the mere tool of divine whimsy or caprice, and there is immense pride in the capacity of the human intellect:
because one is the law of nature, expressly declared so to be by god himself; that other is only what, by the assistance of human reason, we imagine to be that law. if we could be as certain of the later as we are of the former, both would have an equal authority; but, till then, they can never be put in any competition together.
there is in that last sentence, an assertion of a tremendous human pride. for blackstone says that if man can be certain of his position, if he can perhaps write a brief squarely on all fours, then human reason and intellect may very well stand with divinity. but, he cautions, before pride there must be intellectual certitude.
these, of course, are not the precepts of islam.
to hold such views as expressed by blackstone, and to place such reliance in and faith about the power of human reason to seek and find divine truth, explore and define it, are anathema to muslim “theology.” the values and beliefs inhering in blackstone’s conceptualization of the function of human reason and inquiry are immutably opposed to the muslim view of the prophet mohammed’s revelations serving as the sole conduit to divine truth. the muslim view of mohammed at the last prophet of god, as the last human conduit to truth, is of course, inimically apposite to blackstone’s reliance upon thought, reason and inquiry as a way of partaking in god’s natural law, of attaining god’s scheme of things, upon the nickel of man’s own efforts and growth.
now, i do not pretend that blackstone is the last word in theology, or epistemology, or etiology, and even that he was any kind of competent theologian or theologian.
he was, after all, an oxford professor delivering a series of lectures on law.
what he does reveal, and quite eloquently in my opinion, is a world view held more or less in agreement throughout the western world throughout the centuries in which a great deal of faith is placed in the efficacy of human reason to be able to partake in the scheme of law or reality as created by god, and to recognize the precepts of good and act to partake of it, and to concomitantly recognize the pitfalls and delusions of evil, and to avoid and oppose it as need be.
in blackstone’s world, good is found and partaken of by reason and inquiry. it need not be dictated, and enlightenment is not found by the ministrations of the cudgel.
--john jay
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