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CHAPTER 1
Placement and Purpose: A New Science of Jurisprudence
For [the Creator] 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.
— William Blackstone, Commentaries on the Laws of England (1765–69)
On October 25, 1758, what would later become the introduction to Blackstone's Commentaries on the Laws of England was read aloud at the beginning of the Vinerian lectures on English law at Oxford University. As was made clear in his first Vinerian lecture, Blackstone had a vision for reforming English legal education. The key question that informed his task was the question of the knowledge and structure of the law itself. Was the English law, as Blackstone contemporary Sir William Jones asked in 1781, "merely an unconnected series of decrees and ordinances," or was it "a Science" that should "claim an exalted rank in the empire of reason ... founded on principle" If the former, the English law was suitable for study in its particulars but perhaps had no larger significance. If the latter, then the English law should be viewed as an interrelated "great system of jurisprudence, like that of the Universe," which "had to consist 'of many subordinate systems,' all 'connected by nice links and beautiful dependencies' and each 'reducible to a few plain elements.'" In other words, if the English law was but a series of oral or written positive law pronouncements disconnected from any larger principles or underlying foundations, then the only thing that could be expected of English legal education was experience in the law through the apprenticeship system, which was already occurring at the Inns of Court. If, on the other hand, the English law was "a great system of jurisprudence" that had been built upon a natural law foundation, and if the existing positive law had been formed on the basis of these larger principles, then English legal education ought to begin with the study of law as a science and a system or, in other words, with a study of these foundational principles.
In his Commentaries, Blackstone argued well for the latter:
[Law is] a science, which distinguishes the criterions of right and wrong; which teaches to establish the one, and prevent, punish, or redress the other; which employs in it's theory the noblest faculties of the soul, and exerts in it's practice the cardinal virtues of the heart; a science, which is universal in it's use and extent, accommodated to each individual, yet comprehending the whole community; that a science like this should have ever been deemed unnecessary to be studied in an university, is matter of astonishment and concern. Surely, if it were not before an object of academical knowledge, it was high time to make it one; and to those who can doubt the propriety of it's reception among us (if any such there be) we may return an answer in their own way; that ethics are confessedly a branch of academical learning, and Aristotle himself has said, speaking of the laws of his own country, that jurisprudence or the knowledge of those laws is the principal and most perfect branch of ethics.
"The best way to learn any science," stated eighteenth-century theologian and scholar Isaac Watts, "is to begin with a regular system, or a short and plain scheme of that science well drawn up into a narrow compass." The science of law envisioned by Blackstone was — or, as he advocated, ought to be — governed by a system in this Latin sense of the word: a systema, or a "scheme which unites many things in order." The common law, as it had developed over centuries, was, to Blackstone, an "ordered assemblage of principles and doctrines." It was a single system, capable of being "cultivated, methodized, and explained in a course of academical lectures."
In promoting an education in English law at the university level, Blackstone saw himself as following the example of Roman jurists, who had attempted "to imprint on [students'] tender minds an early knowledge of the laws and constitutions of their country." Although Roman civil and canon law had been studied in the English universities for centuries, this was not so for the English law. Blackstone lamented that the laws and constitution of England were not included in the general course of university study at Oxford and Cambridge, as the Roman civil law was on the Continent, and sought to prompt his fellow Englishmen to obtain "a competent knowledge in that science, which is to be the guardian of his natural rights and the rule of his civil conduct." Since such study was in its "infancy" and new to mid-eighteenth-century English university students, Blackstone felt the burden of defending his position and therefore wrote the introduction to his Commentaries as an apologetic for the study of the English common law, the ramifications of neglecting such study, and the need to provide English law as a course of study for all English university students. He believed it was "an undeniable position, that a competent knowledge of the laws of that society, in which we live, is the proper accomplishment of every gentleman and scholar; an highly useful, I had almost said essential, part of liberal and polite education."
Thus, from the beginning of his work, Blackstone viewed himself as continuing in a long tradition of university-level law teaching that had thrived on the Continent, and needed to be redirected, in England, away from the civil law and toward the English common law. Blackstone was enthusiastic about both the subject of law and the students who would sit in on his lectures. In terms of his subject, the common law of England, he argued strongly that the English system of law was superior to the civil law system of the Continent and that England was governed by a "system of laws" that made it "perhaps the only [land] in the universe, in which political or civil liberty is the very end and scope of the constitution." Blackstone believed that England's "admirable system of laws" had been "built upon the soundest foundations, and approved by the experience of the ages," and he wanted to pass those foundations on to the university student population. While affirming the "written reason" of the Roman civil law, Blackstone was most concerned with teaching the English university students about their "own immemorial customs, or the sanctions of an English Parliament."
Blackstone's emphasis on both the layperson and the aspiring lawyer understanding the law was instrumental to his ultimate goal of English law reform. Blackstone believed that all university students, not only aspiring lawyers who would later train at the Inns of Court, should have an acquaintance with the law, to the extent possible given their varying conditions, fortunes, and degrees of leisure. In an attempt to make a legal education compelling to those university students who did not aspire to careers in law, Blackstone appealed to their interests. He stated that gentlemen should seek learning in the law in order to better understand the law of property (which governed their own concerns), to serve properly on a jury, and to carry out "legal and effectual justice" in the role of a magistrate. He especially emphasized such education for future MPs. Parliament had the ability to pass statutes that would affirm, disaffirm, or alter the common law. Therefore, Blackstone ascribed to MPs especially a high sense of duty in improving and preserving the laws of England, describing their role as follows: "They are the guardians of the English constitution; the makers, repealers, and interpreters of the English laws; delegated to watch, to check, and to avert every dangerous innovation, to propose, to adopt, and to cherish any solid and well-weighed improvement; bound by every tie of nature, of honour, and of religion, to transmit that constitution and those laws to their posterity, amended if possible, at least without any derogation."
Blackstone also appealed to university students by laying a challenge before them. He argued that "the science of legislation" was "the noblest and most difficult of any" of the sciences and that the common law of England had suffered from "the defective education" of the English lawmakers: "[I] t's symmetry has been destroyed, it's proportions distorted, and it's majestic simplicity exchanged for specious embellishments and fantastic novelties." In fact, Blackstone agreed with Sir Edward Coke that it was Parliament's uneducated alterations to the common law that had led to "almost all the perplexed questions, almost all the niceties, intricacies, and delays" of the English law in the first place. Since the majority of MPs had attended Cambridge or Oxford in the mid-eighteenth century, and could be expected to continue to do so in the years to come, it would be particularly effective for future MPs to be trained in law at the university level.
If Blackstone was hard on the gentlemen who might one day serve as lawmakers in Parliament, he was even more so on the members of the nobility who might one day become judges. Blackstone believed that judges, even more than MPs, had the power to guide the development of the common law, for good or for ill. The decisions of superior judges, Blackstone argued, were "final, decisive, irrevocable: no appeal, no correction, not even a review can be had." Blackstone believed the nobility had been granted entry into the position of judge because they alone had the means to obtain the education in law necessary for proper fulfillment of the judicial role. He did not mince words in his charge to the nobility regarding their duty to obtain a legal education, which would then enable them to judge rightly: "[I]gnorance of the laws of the land hath ever been esteemed dishonourable, in those who are entrusted by their country to maintain, to administer, and to amend them."
Blackstone's charge to his students shows how strongly he believed in his first means of law reform, which was the inclusion of an education in English common law at the university level. Blackstone's second means of reform was to include in that education instruction in a particularly English science of jurisprudence or theory of law. That theory of law was embodied in Blackstone's understanding of the pursuit of happiness. To understand Blackstone's push for a particularly English law and jurisprudence, we must first consider what he was pushing back against: a long tradition of teaching Roman emperor Justinian's Corpus Juris Civilis and Scholastic reasoning in English legal education.
Justinian's Corpus Juris Civilis, and the Scholastic method of jurisprudence that was taught alongside it, heavily emphasized deductive, syllogistic reasoning, which Blackstone believed to be the cause of all of the complexities and inconsistencies in human law. Blackstone attempted to depart from both Justinian and the Scholastics in his assertion that the Creator had made the path to knowledge of the law of nature open to every man through the pursuit of happiness. To more fully understand that departure, an overview of Justinian and Scholastic jurisprudence is helpful.
Emperor Justinian ruled the eastern portion of the Roman Empire from 527 to 565. In addition to seeking to unify the Roman Empire under one orthodox Christian faith, Justinian also sought to unify the empire under one law. Justinian believed that, as emperor, his task was to promote justice. To that end, and almost immediately after becoming emperor, Justinian appointed a commission of legal scholars to clarify the Roman law and bring it up to date. The ten-person commission worked almost as speedily as Justinian as they combed through texts, "removing needless repetitions or contradictions, bringing passages up to date," all toward their main goal of "working out an orderly arrangement" of Roman law.
Within two years, Justinian appointed a second commission, whose task was to "delete, abridge, harmonize, collate, update, and clarify [legal] texts, drawn from some 2,000 books written by some thirty-nine different authorities" and then distill them into a single text. The Digest that resulted was "an anthology of extracts from the writings of the great jurists," which included both references to the original sources and "substantive changes ... necessary" to bring the law up to date. In this way, the Digest not only compiled but also harmonized the law. Finally, Justinian ordered the creation of the Institutes, a distillation of the Roman law into "basic principles" for the beginning student of law.
Justinian's undertaking harmonized and distilled the main principles of the Roman law, addressed the legal necessities of the day, and gave new authority to Justinian himself, as his work replaced prior legal texts. All three parts together (the Code, the Digest, and the Institutes) formed a "self-sufficient whole" and came to be known as the Corpus Juris Civilis, or "the body of the Civil Law," a name that distinguished Justinian's work from the church's canon law.
Justinian advocated for the study of law in the Roman Empire and began the Institutes with a charge "to the young desirous of legal knowledge," claiming that the laws they were about to study in the Code were a picture of "lucid harmony" free from "that which is unnecessary or erroneous." His edict for the creation of the Digest, although lengthy, is reproduced here, as it provides insight into the status of the Roman law at the time of Justinian's emperorship and his plans for creating a harmonized collection of that law:
[S]ince there is nothing to be found in all things so worthy of attention as the authority of the law, which properly regulates all affairs both divine and human and expels all injustice: We have found the entire arrangement of the law which has come down to us from the foundation of the City of Rome and the times of Romulus, to be so confused that it is extended to an infinite length and is not within the grasp of human capacity; and hence We were first induced to begin by examining what had been enacted by former most venerated princes, to correct their constitutions, and make them more easily understood; to the end that being included in a single Code, and having had removed all that is superfluous in resemblance and all iniquitous discord, they may afford to all men the ready assistance of their true meaning.
After having concluded this work and collected it all in a single volume under Our illustrious name, raising Ourself above small and comparatively insignificant matters, We have hastened to attempt the most complete and thorough amendment of the entire law, to collect and revise the whole body of Roman jurisprudence, and to assemble in one book the scattered treatises of so many authors; which no one else has heretofore ventured to hope for or to expect ...
Therefore We order you [Tribonian] to read and revise the books relating to the Roman law drawn up by the jurists of antiquity, upon whom the most venerated princes conferred authority to write and interpret the same; so that from these all the substance may be collected, and, as far as may be possible, there shall remain no laws either similar to or inconsistent with one another, but that there may be compiled from them a summary which will take the place of all.
Justinian believed that the content of the Corpus Juris Civilis was grounded in "natural laws which are followed by all nations alike, deriving from divine providence, remain[ing] always constant and immutable." He viewed the work as "a statement of universal principles of justice" and hoped that it would "be the epitome of human justice according to God's guidance" for years to come. His hope was realized in part. Perhaps one of the greatest consequences of Justinian's work was how it brought together, in one set of texts, the history of Roman law and preserved it for future generations. In the centuries that followed, governing authorities in the West continually looked to the ideas set forth in the Roman law and articulated in the Corpus Juris Civilis as both applicable and authoritative. The Corpus Juris Civilis was then rediscovered in a piecemeal process that lasted throughout the eleventh and twelfth centuries. Its rediscovery coincided with the founding of universities on the European Continent. It was this law content, along with the Roman canon law, that was taught at the university level, both on the Continent and in England, throughout the Middle Ages. The method of jurisprudence that was taught alongside the Roman law was that of the Scholastics.
(Continues…)
Excerpted from "The Pursuit of Happiness In The Founding Era"
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