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July 27, 2009

Too many laws: William Blackstone: Law and Letters in the Eighteenth Century - Wilfrid Prest

Posted by David Womersley

William Blackstone: Law and Letters in the Eighteenth Century
by Wilfrid Prest
Oxford: Oxford University Press, 2008
Hardback, 29.99

It is striking that fewness and simplicity of laws is a characteristic encountered again and again in utopias and ideal or imagined commonwealths. In Plato's Republic it is agreed that

there is no need to impose laws . . . on good men; what regulations are necessary they will soon find out for themselves.
In the Sparta of Lycurgus, Plutarch tells us that written laws were forbidden; instead, the Spartans believed that the guiding principles of most importance for the happiness and excellence of a state should be embedded in the character and training of its citizens. The laws of the Roman Decemviri were written in their entirety on twelve tables of brass, or wood, or ivory.

So keen was the ancient sense that the proliferation of law was oppressive that in the Locrian constitution drawn up by Zaleucus, anyone proposing a new law was made to stand in the assembly of the people with a halter round his neck. If the proposed law was rejected by the people, the instigator was promptly strangled.

In Swift's Brobdingnag it is a rule that

No Law of that Country must exceed in Words the Number of Letters in their Alphabet; which consists only of two and twenty. But indeed, few of them extend even to that Length. . . . And, to write a Comment upon any Law, is a capital Crime.
The reason for this hatred of plurality and complexity of law is explained by Sir Thomas More, whose Utopians have
very few laws, for their training is such that very few suffice. The chief fault they find with other nations is that even their infinite volumes of laws and interpretations are not adequate. They think it completely unjust to bind people by a set of laws that are too many to be read or too obscure for anyone to understand.
This surely describes our condition, living as we do under an ever-thickening avalanche of statute law, steadily extending the powers of the state into areas from which it had abstained, and drawing the law further and further away from the common-sense view of what it should be, namely a codification of that natural law which commands the respect of reasonable people.

Of course, such a formulation begs many questions. But nevertheless it is worth dwelling for a moment on the inconveniences of the position which has been created by disregarding that common-sense view of law. (I leave to one side examples of irresponsible legislation, such as the ban on hunting with dogs, which was transparently an act of class warfare, which is for practical purposes unenforceable, and which has achieved nothing beyond bringing the law into disrepute.)

In Britain today it is quite possible to find yourself on the wrong side of a law which you did not know existed, and which lays upon you duties of a counter-intuitive nature which you could not possibly have guessed were required of you. We have departed drastically from the practice of Utopia, where the purpose of law was simply to advise every man of his duty. The old principle, that ignorance of the law is no excuse, however vigorously it may be maintained, nevertheless becomes hard to reconcile with natural justice when it is impossible not to be ignorant of at least some of the law.

The result is that behaviour in society is polarised. On the one hand, there is the flagrant but for the most part petty illegality of those who have no disposition to comply with the rules of society. On the other, those who wish to obey the law, but who necessarily cannot know in its entirety what it is, are driven to adopt a defensive crouch, and in many areas of their lives are inhibited in their actions for fear of inadvertently breaking the law. The cowed disposition which results is, of course, very convenient for administrations of all colours and stripes.

Was it always so, at least to some extent? William Blackstone, the great eighteenth-century jurist and subject of an excellent new biography by Wilfrid Prest, was prompted to give the series of lectures which eventually became his Commentaries on the Laws of England (1765-69) by an awareness that an accumulation of piecemeal legislation was rendering the law chaotic.

Originally, Blackstone believed, employing a celebrated metaphor, the common law

resembled a regular Edifice: where the Apartments were properly disposed, leading one into another without Confusion, where every part was subservient to the whole, all uniting in one beautiful Symmetry.
But after two centuries of "various contradictory Statutes" made "according to Whim, or Prejudice, or private Convenience", the building had been made virtually unusable.

Blackstone's Commentaries were designed to remedy this state of affairs, and to allow those who read them "with tolerable Application" to "contemplate and understand the Whole". The result was, in the words of Edward Gibbon,

a rational System of the English Jurisprudence digested into a natural method, and cleared of the pedantry and obscurity which rendered it the unknown horror of all men of taste.
Blackstone's purpose in undertaking this laborious task was precisely to re-engage the political nation with its legal culture, thereby preventing public administration from becoming the preserve and the instrument of a narrow group of specialists. The closing words of the Commentaries are an appeal to
the nobility, and such gentlemen of the kingdom, as a delegated by their country to parliament: The protection of THE LIBERTY OF BRITAIN is a duty which they owe to themselves, who enjoy it; to their ancestors, who transmitted it down; and to their posterity, who will claim at their hands this, the best birthright, and noblest inheritance of mankind.
We are not now accustomed to speak of our constitution in quite such high terms, but the more practical purpose underlying Blackstone's eulogy namely, that of equipping men to hold an administration to account is a perennial need.

Prest's exceptionally well-written and absorbing study, which gives a full portrait of Blackstone in all areas of his life, not just that of jurisprudence, itself ends by indicating the need for a modern Blackstone to take on the Herculean task of clearing out the Augean stables of the law:

it is sobering to consider that the liberties which Blackstone celebrated . . . can by no means be taken uniformly for granted today, even in societies which continue to depend upon the inheritance of the common law.
David Womersley is Thomas Warton Professor of English Literature, University of Oxford. His previous reviews for the Social Affairs Unit can be read here.

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My Ould Da used to tell me that in the Prussian Empire, there was an official called the Normale Dummkopf. Every proclamation had to be given to him to read, and if he could not understand it, it was sent back to be re-drafted.

Posted by: Robert H. Olley at July 31, 2009 07:45 PM
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