Found Law, Made Law and Creation: Reconsidering Blackstone's Declaratory Theory
Sir William Blackstone's Commentaries on the Laws of England is arguably the single most influential work of jurisprudence in American history. Written in the late eighteenth century, it regularly appeared in American law school classrooms up until the early part of the twentieth century, when...
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| Format: | Electronic Article |
| Language: | English |
| Check availability: | HBZ Gateway |
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| Fernleihe: | Fernleihe für die Fachinformationsdienste |
| Published: |
Cambridge Univ. Press
2006
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| In: |
Journal of law and religion
Year: 2006, Volume: 22, Issue: 1, Pages: 255-286 |
| Online Access: |
Volltext (lizenzpflichtig) Volltext (lizenzpflichtig) |
| Summary: | Sir William Blackstone's Commentaries on the Laws of England is arguably the single most influential work of jurisprudence in American history. Written in the late eighteenth century, it regularly appeared in American law school classrooms up until the early part of the twentieth century, when ridiculing Blackstone and the Commentaries became a part of legal academic orthodoxy and the influence of the Commentaries waned. Blackstone eventually became the poster child for everything that the realists and their descendants thought was wrong with American law—formalism, natural rights and plutocracy.Both Blackstone's admirers and his detractors have devoted significant attention to his famous account of judging, which holds that judges find (or declare) law rather than make law. In the introduction to the Commentaries, Blackstone states that the judge's job is to determine the law "not according to his own private judgment, but according to the known laws and customs of the land;" the judge is "not delegated to pronounce a new law, but to maintain and expound the old one." One reason Blackstone's account has been attractive in some quarters is because it supplies apparent answers to a number of problems raised by the idea of judge-made law. If judges merely find and apply authoritative law, their decisions presumptively carry the authority of the law they are applying. Because the law pre-exists the decision, the specter of retroactive liability disappears. |
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| ISSN: | 2163-3088 |
| Contains: | Enthalten in: Journal of law and religion
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| Persistent identifiers: | DOI: 10.1017/S0748081400003271 |