Thursday, February 7, 2019

Minot on the Irrelevance of Blackstone (at the Founding)

Martin Minot, enrolled in the University of Virginia’s legendary JD-MA program in legal history has posted his note The Irrelevance of Blackstone: Rethinking the Eighteenth-Century Importance of the Commentaries, which appeared in the Virginia Law Review 104 (2018): 1359-97. It’s worth downloading just for the insight Mr. Minot’s acknowledgement provides into the quality of legal history instruction at UVA.  Here is the abstract:
William Blackstone (LC)
This Note challenges William Blackstone's modern position as the "oracle of the law" in the eighteenth century. In a time when the status of legal doctrines at the Founding is of renewed significance in interpreting the Constitution, it is especially important to ensure that the sources of these doctrines comport with historical practices. This Note looks beyond the usual story of Blackstone's influence, as told by the significant circulation of his work. It turns instead to the work's practical significance for legal education in the decades preceding the Constitutional Convention. By using curricula and student notes-referred to as commonplace books-to discover what was actually considered influential in the legal profession of the period, a more comprehensive perspective of eighteenth-century legal thought is uncovered While Blackstone was apparently known to these late colonists, his work was far from "the most widely read law book in eighteenth-century America. " Instead, more traditional treatises and English reporters dominated legal learning until at least 1787. It is these admittedly more impenetrable works which should inform our understanding of the common law as it existed at the Founding.
H/t: Legal Theory Blog

1 comment:

William Gaskins said...

I have had the chance to review this note. While I think it is an important realization that most of the leading jurists and lawyers did not find Blackstone Relevant in the first few years of the founding, I completely disagree with the implications that Mr. Minot reaches. It is important to remember that most of the jurists and lawyers at the time of the Founding were not trained. In Virginia specifically, there were dozens of supplements and guide-books for the "country" jurists and lawyers. See generally, Roeber, Faithful Magistrates and Republican Lawyers. Blackstone and his Commentaries were viewed by at least the Virginia "country" party of the law as an interloper. Lawyers and jurists like Jefferson, Madison, Wythe, Marshall, and Tucker used Blackstone, his commentaries, and other such books as a tool to standardized legal training and education, and met considerable opposition by the "country" political and legal party in Virginia. See generally, Roeber, Faithful Magistrates and Republican Lawyers; Miller, Juries and Judges versus the Law: Virginia's Provincial Legal Culture. To my knowledge, this same debate played out to different degrees in other states. So yes, Blackstone was not viewed by most of the legal community in Revolutionary-era America as the preeminent scholar of the law. However, his writings were still instrumental in forming the thoughts of the leading "court" lawyers and jurists, who formed the legal and political system we recognize today.