In barely forty pages former colleague Craig Stern accomplishes two goals. First, he effectively defends William Blackstone from his "cultured" (but largely ignorant) despisers. In other words, he rebuts those who assert either that Blackstone believed in natural law but didn't follow it in his "Commentaries on the Laws of England". Alternatively, that he didn't believe in natural law and wrote of it only in pretense. And second, Stern convincingly places Blackstone in the broad Anglican tradition of historically-informed legal analysis. You can download A Mistake of Natural Law: Sir William Blackstone and the Anglican Way here. I urge you to do so.
Over the years William Blackstone has been pilloried for his assertion that the results of human lawmaking must conform to God's will and this will "is called the law of nature." Blackstone's critics have largely identified his "law of nature" with one configuration of natural law, one characterized by a system of deduction from self-evident first principles. Since nothing that follows in his "Commentaries" remotely corresponds to a set of deductions (for it is, after all, a commentary on the laws of England, not an exercise in abstract moral philosophy), his critics conclude that Blackstone was either stupid or a prevaricator. Either he didn't know he wasn't "doing" natural law, or he was only making a pretense of doing it.
Both conclusions seem improbable but Stern shows why they are flatly wrong. Blackstone was operating with a substantially different notion of natural law than his critics imagine. Nor was Blackstone's version of natural law idiosyncratic. Indeed, it had a venerable pedigree extending back to the "father" of Anglicanism, Richard Hooker.
Hooker (and likely others before him) and Blackstone (and other between them) took discovery of the law of nature to be both a matter of deduction and a matter of empirical observation, with an emphasis on the latter (at least when it came historical practices like law).Taking faith in the God of Providence meant that the best resource for discovering God's will for the law is the law.
Of course, thinkers from Hooker to Coke to Selden to Hale to Blackstone equally believed in human sinfulness and thus resisted making historical practices identical with God's will. God's will was most clearly expressed in Scripture (and as necessarily deduced therefrom), which could trump long-standing practices. Yet each of these Anglicans also understood that the parts of Scripture in which law most clearly featured were directed to a particular people in a particular place at a particular time and thus only occasionally of direct counter-authority to England's legal tradition. Perhaps Blackstone was too deferential to the tradition of the common law but he willingly countered the weight of English tradition with an eye toward comparative law. Blackstone believed that observing how other legal traditions--the ius gentium--framed the law of their societies provided insight into what was perennial and what was merely circumstantial in England's law. In any event, re-understanding natural law in Blackstone's terms undercuts the simple objections of most of his critics.
Stern's turn to Anglican theology provides the foundation for Blackstone's law-of-nature jurisprudence. Stern draws on Richard Hooker's debates with the Puritans like Thomas Cartwright in which the former expanded the scope of prudence over against the Puritan's overly-fastidious doctrine of conscience. For Hooker (and Anglicans ever since), most of life (including law) is made of up of matters, decisions, and rules that could have been otherwise. Someone should decide on what side of the road we are to drive but the choice should be grounded in relevant experience, neither deduced from higher principles nor exegeted from Scripture. Indeed, who that "someone is" is likewise a matter of a people's tradition of civil government.
Even the most puritanical would agree with this example yet, as Brad Littlejohn explains in "The Peril and Promise of Christian Liberty", Richard Hooker greatly expanded the scope of religious and legal adiaphora. Finding sufficient "natural" warrant for English law in the ongoing tradition of the common law was for Blackstone consistent with the breadth of prudential moderation that characterized Anglicanism.
Reframing Blackstone's understanding of the law of nature helps us make sense of the "Commentaries". Grounding his understanding in Anglican theology solidifies our confidence in the internal rationality of Blackstone's project. Yet these advances leaves us (= me) with a concern: is there a meaningful distinction between Blackstone's immanent natural law and simple historicism? Can Blackstone be charged (as some have charged the late Roger Scruton) with being content with holding to a philosophia perennis? I believe the answer is no but Stern's article does not fully substantiate my belief.That Stern doesn't address my concern is no surprise; few of Blackstone's critics take my tack and it was to them that Stern was writing.
In any event, I found Stern's piece eminently readable and clearly argued. There's much more of value than I have described in this brief post so I commend A Mistake of Natural Law: Sir William Blackstone and the Anglican Way to your attention.
Over the years William Blackstone has been pilloried for his assertion that the results of human lawmaking must conform to God's will and this will "is called the law of nature." Blackstone's critics have largely identified his "law of nature" with one configuration of natural law, one characterized by a system of deduction from self-evident first principles. Since nothing that follows in his "Commentaries" remotely corresponds to a set of deductions (for it is, after all, a commentary on the laws of England, not an exercise in abstract moral philosophy), his critics conclude that Blackstone was either stupid or a prevaricator. Either he didn't know he wasn't "doing" natural law, or he was only making a pretense of doing it.
Both conclusions seem improbable but Stern shows why they are flatly wrong. Blackstone was operating with a substantially different notion of natural law than his critics imagine. Nor was Blackstone's version of natural law idiosyncratic. Indeed, it had a venerable pedigree extending back to the "father" of Anglicanism, Richard Hooker.
Hooker (and likely others before him) and Blackstone (and other between them) took discovery of the law of nature to be both a matter of deduction and a matter of empirical observation, with an emphasis on the latter (at least when it came historical practices like law).Taking faith in the God of Providence meant that the best resource for discovering God's will for the law is the law.
Of course, thinkers from Hooker to Coke to Selden to Hale to Blackstone equally believed in human sinfulness and thus resisted making historical practices identical with God's will. God's will was most clearly expressed in Scripture (and as necessarily deduced therefrom), which could trump long-standing practices. Yet each of these Anglicans also understood that the parts of Scripture in which law most clearly featured were directed to a particular people in a particular place at a particular time and thus only occasionally of direct counter-authority to England's legal tradition. Perhaps Blackstone was too deferential to the tradition of the common law but he willingly countered the weight of English tradition with an eye toward comparative law. Blackstone believed that observing how other legal traditions--the ius gentium--framed the law of their societies provided insight into what was perennial and what was merely circumstantial in England's law. In any event, re-understanding natural law in Blackstone's terms undercuts the simple objections of most of his critics.
Stern's turn to Anglican theology provides the foundation for Blackstone's law-of-nature jurisprudence. Stern draws on Richard Hooker's debates with the Puritans like Thomas Cartwright in which the former expanded the scope of prudence over against the Puritan's overly-fastidious doctrine of conscience. For Hooker (and Anglicans ever since), most of life (including law) is made of up of matters, decisions, and rules that could have been otherwise. Someone should decide on what side of the road we are to drive but the choice should be grounded in relevant experience, neither deduced from higher principles nor exegeted from Scripture. Indeed, who that "someone is" is likewise a matter of a people's tradition of civil government.
Even the most puritanical would agree with this example yet, as Brad Littlejohn explains in "The Peril and Promise of Christian Liberty", Richard Hooker greatly expanded the scope of religious and legal adiaphora. Finding sufficient "natural" warrant for English law in the ongoing tradition of the common law was for Blackstone consistent with the breadth of prudential moderation that characterized Anglicanism.
Reframing Blackstone's understanding of the law of nature helps us make sense of the "Commentaries". Grounding his understanding in Anglican theology solidifies our confidence in the internal rationality of Blackstone's project. Yet these advances leaves us (= me) with a concern: is there a meaningful distinction between Blackstone's immanent natural law and simple historicism? Can Blackstone be charged (as some have charged the late Roger Scruton) with being content with holding to a philosophia perennis? I believe the answer is no but Stern's article does not fully substantiate my belief.That Stern doesn't address my concern is no surprise; few of Blackstone's critics take my tack and it was to them that Stern was writing.
In any event, I found Stern's piece eminently readable and clearly argued. There's much more of value than I have described in this brief post so I commend A Mistake of Natural Law: Sir William Blackstone and the Anglican Way to your attention.
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