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3 - Organizing Common Law

William Blackstone in America

Published online by Cambridge University Press:  05 April 2019

Andrew Forsyth
Affiliation:
Yale University, Connecticut
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Summary

Blackstone organized the common law. He did so by structuring the law around rights and principles known in the natural-law tradition. This hitherto unknown cohesion commended common law to Americans at a Revolutionary moment when the rejection of common law—intellectually and politically—was possible, even likely. Recognizing today that a common-law legal system can be outlined and explained in reference to natural law is, itself, an achievement (given the broadly positivistic terrain of analysis of the common law). Blackstone offers an example, then, for how natural law can serve to describe the ultimate sources or justifications for human law as a system. But he does more. He offers natural-law tools for structuring the body of law and justifying or critiquing common law’s specific enactments, defenses, and punishments. Blackstone, however, does not merely apply natural law to common law. Whether we like the result or not, he suggests that, in matters of legal determination, human law is in conversation with natural law. And this conversation, he suggests, is not one in which natural law necessarily has the final word. One result is that natural law may explain and stabilize human laws while simultaneously rendering them contingent and revisable. Given the realities of sin, says Blackstone, human reason must be suitably modest in its claims to track natural law’s revelation of God’s reason and will.
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Common Law and Natural Law in America
From the Puritans to the Legal Realists
, pp. 46 - 69
Publisher: Cambridge University Press
Print publication year: 2019

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  • Organizing Common Law
  • Andrew Forsyth, Yale University, Connecticut
  • Book: Common Law and Natural Law in America
  • Online publication: 05 April 2019
  • Chapter DOI: https://doi.org/10.1017/9781108576772.004
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  • Organizing Common Law
  • Andrew Forsyth, Yale University, Connecticut
  • Book: Common Law and Natural Law in America
  • Online publication: 05 April 2019
  • Chapter DOI: https://doi.org/10.1017/9781108576772.004
Available formats
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To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Google Drive.

  • Organizing Common Law
  • Andrew Forsyth, Yale University, Connecticut
  • Book: Common Law and Natural Law in America
  • Online publication: 05 April 2019
  • Chapter DOI: https://doi.org/10.1017/9781108576772.004
Available formats
×