10.6092/issn.2531-6133/10402
It is said that no book on the common law surpasses the importance of Sir William Blackstone’s Commentaries on the Laws of England. But it is also said that the Commentaries is of questionable merit, with aspects of it downright incoherent. The most fundamental element of the Commentaries to attract this disparaging characterization is its discussion and use of what it usually calls “the law of nature” — and what we these days usually call “natural law.” Does the Commentaries perpetrate a mistake — actually many mistakes — of natural law? This article answers that it is not the Commentaries, but rather its critics that perpetrate mistakes of natural law. The mistakes arise from the expectation that Blackstone’s natural law would take after Thomas Aquinas’s (or even Christopher St. German’s) natural law. But readers of the Commentaries who allow Blackstone his own way with natural law will find it a valuable treatment that animates the whole. Blackstone’s natural law owes much to two influences, Roman law and the Anglican Church. The second influence is the more distinctive and guides Blackstone’s response to the first. Both led Blackstone to view the natural law as an order immanent in human law, an order especially prominent within the common law. Seen in this light, natural law provides the foundation for the Commentaries and a foundation for understanding law in our own day.
application/pdf
2531-6133
10402
2
en
Craig A. Stern
University of Bologna Law Review
Law and Religion
A Mistake of Natural Law: Sir William Blackstone and the Anglican Way
Text.Serial.Journal
https://bolognalawreview.unibo.it/
4
Articles & Essays
2019-12-31
2020-01-15
2019-08-23
2020-03-17
325-366
UBLR
Craig A. Stern
2019/12/31
10.6092/issn.2531-6133/10402
325
Regent University
2531-6133
2
Law and Religion
en
366
A Mistake of Natural Law: Sir William Blackstone and the Anglican Way
https://bolognalawreview.unibo.it/article/download/10402/10438
4
 ARTICLES & ESSAYS                                                       https://doi.org/10.6092/issn.2531-6133/10402




                      A Mistake of Natural Law:
            Sir William Blackstone and the Anglican Way

                                                CRAIG A. STERN †


TABLE OF CONTENTS: 1. Introduction; 2. The Commentaries and the Commentators; 3. Blackstone and
Justinian; 4.Blackstone and the Church of England; 4.1 Richard Hooker; 4.2 The Latitudinarians; 5. The
Anglican Blackstone and the Natural Law; 6. Conclusion.


ABSTRACT: It is said that no book on the common law surpasses the importance of Sir
William Blackstone’s Commentaries on the Laws of England. But it is also said that the
Commentaries is of questionable merit, with aspects of it downright incoherent. The most
fundamental element of the Commentaries to attract this disparaging characterization is
its discussion and use of what it usually calls “the law of nature” — and what we these
days usually call “natural law.” Does the Commentaries perpetrate a mistake — actually
many mistakes — of natural law? This article answers that it is not the Commentaries, but
rather its critics that perpetrate mistakes of natural law. The mistakes arise from the
expectation that Blackstone’s natural law would take after Thomas Aquinas’s (or even
Christopher St. German’s) natural law. But readers of the Commentaries who allow
Blackstone his own way with natural law will ﬁnd it a valuable treatment that animates
the whole. Blackstone’s natural law owes much to two inﬂuences, Roman law and the
Anglican Church. The second inﬂuence is the more distinctive and guides Blackstone’s
response to the ﬁrst. Both led Blackstone to view the natural law as an order immanent in
human law, an order especially prominent within the common law. Seen in this light,
natural law provides the foundation for the Commentaries and a foundation for
understanding law in our own day.

KEYWORDS: Blackstone; Natural Law; Roman Law; Anglicanism; Law and Religion




                                       UNIVERSITY OF BOLOGNA LAW REVIEW

                                                    ISSN 2531-6133

                                                    [VOL.4:2 2019]

          This article is released under the terms of Creative Commons Attribution 4.0 International License (CC-BY)



                                                            325
                                                   University of Bologna Law Review
                                                                       [Vol.4:2 2019]
                                                       https://doi.org/10.6092/issn.2531-6133/10402



          1. INTRODUCTION

“[P]erhaps the most important single book . . . in the history of the
common law” is Sir William Blackstone’s Commentaries on the Laws of
England (hereinafter Commentaries).1 No other book but the Bible had a
greater role in generating American institutions2 and the nineteenth
century alone saw about one hundred American versions.3 It is said that
the Commentaries led early American courts to decide from principles, not
precedents.4 But it is said also that the Commentaries is of questionable
merit,5 with aspects of it downright incoherent.6
          The most fundamental element of the Commentaries to attract this
disparaging characterization is its discussion and use of what it usually
calls “the law of nature.”7 “Natural law” is the term more frequently used
these days for a transcendent legal order to which human law necessarily
bears some relationship. Because Blackstone’s concept of the “law of
nature” is similar to that of contemporary “natural law,” this article
†
    Professor, Regent University School of Law (US). B.A. Yale University, J.D. University of
    Virginia. The author thanks Mark Cartledge, Doug Cook, Alyson Crisbie, Lou Hensler,
    Mike Hernandez, Timothy and Meredith Pettman, Paul Shakeshaft, the good people of
    the Regent University Law Library, and his wife Kelly for their help.
1
  DANIEL J. BOORSTIN, THE MYSTERIOUS SCIENCE OF THE LAW, at vii (Peter Smith 1973) (1941);
  see also Albert W. Alschuler, Rediscovering Blackstone, 145 U. PA. L. REV. 1, 2 (1996). The
  Commentaries was hugely popular in the eighteenth and nineteenth centuries. See WILFRID
  PREST, WILLIAM BLACKSTONE 307 (2008).
2
  See BOORSTIN, supra note 1, at iii; see also Alschuler, supra note 1, at 5-9; Joseph W.
  McKnight, Blackstone: Quasi-Jurisprudent, 13 SW L.J. 399, 411 (1959). The present article
  happens to highlight elements of the Commentaries that commended it to Americans
  of the Founding: “Even those who rejected Blackstone’s anti-republican emphasis on
  parliamentary omnipotence . . . had no difficulty in accepting the validity of Blackstone’s
  exposition of English common law as founded on custom, divine law, and the law of
  nature, hence providing an entirely appropriate legal foundation for the incipient USA.”
  Wilfrid Prest, General Editor’s Introduction to 1 WILLIAM BLACKSTONE, COMMENTARIES ON THE
  LAWS OF ENGLAND, at vii, xiv (Wilfrid Prest ed., Oxford Univ. Press 2016) (1765) (footnote
  omitted).
3
  See Wilfrid Prest, Blackstone as Architect: Constructing the Commentaries, 15 YALE J.L. &
  HUMAN. 103, 107-08 (2003).
4
  McKnight, supra note 2, at 401.
5
  See Emily Kadens, Justice Blackstone’s Common Law Orthodoxy, 103 NW. U. L. REV. 1553,
  1566 (2009).
6
  See infra notes 45-54 and accompanying text.
7
  Sometimes the Commentaries seems to use “natural law” or some similar term for the law
  of nature. See infra text accompanying notes 41-42. This seeming lack of uniformity and
  rigor in terminology certainly does not foster coherence in the Commentaries. On the other
  hand, Aquinas seems to do likewise. See infra note 33.




                                             326
                                                 University of Bologna Law Review
                                                                     [Vol.4:2 2019]
                                                     https://doi.org/10.6092/issn.2531-6133/10402



often will use the latter term instead.              In this parlance, the concern
becomes the charge of incoherence in Blackstone’s discussion and use of
natural law. Does the Commentaries perpetrate a mistake — actually many
mistakes — of natural law?
        This article proposes that it is not the Commentaries, but rather its
critics that perpetrate mistakes of natural law. The mistakes arise from
the expectation that Blackstone’s natural law would take after Thomas
Aquinas’s8 (or even Christopher St.German’s)9 natural law. As Blackstone
disappoints these expectations, he has met with criticisms that his
treatment of natural law is a sloppy pro forma performance that even he
himself does not take seriously. But readers of the Commentaries who
allow Blackstone his own way with natural law will ﬁnd it a valuable
treatment that animates the whole of the Commentaries.
        Blackstone’s natural law owes much to two inﬂuences. The ﬁrst is
Roman law, especially as captured in the Corpus Juris Civilis.10 The second
is the Anglican church,11 which is the more distinctive and guides
Blackstone’s response to the ﬁrst. Both led Blackstone to view the natural
law as an order immanent in human law, an order especially prominent
within the common law.            Seen in this light, natural law provides the
foundation for the Commentaries.              While doing so, it also provides a
foundation for understanding law even today, a foundation actually in use
far more than some might think.
8
   See infra notes 34-44 and accompanying text.
9
   In the early sixteenth century, St. German wrote Doctor and Student, “the ﬁrst major law
   book published in English,” “also the ﬁrst purely analytical English law book,” a work
   of “analytical theology and philosophy.” DANIEL R. COQUILLETTE, THE ANGLO-AMERICAN
   LEGAL HERITAGE: INTRODUCTORY MATERIALS 187-88 (2d ed. 2004). He drew in part upon
   Aquinas. CHRISTOPHER SAINT GERMAN, ST. GERMAN’S DOCTOR AND STUDENT, at xxiii-iv, li,
   lvi (T. F. T. Plucknett & J. L. Barton eds., 1975).
10
   See infra notes 55-96 and accompanying text.
11
   See infra notes 97-329 and accompanying text.




                                           327
                                                   University of Bologna Law Review
                                                                       [Vol.4:2 2019]
                                                       https://doi.org/10.6092/issn.2531-6133/10402



         2. THE COMMENTARIES AND THE COMMENTATORS

 After unproductive struggles to develop a successful practice at the bar,
 Blackstone’s professional life began to ﬂourish with his Oxford lectures
 on the common law.12            The Commentaries is not these lectures merely
 recast, delivered as they were to an audience of mere teenagers.13
 Nevertheless, the Commentaries               is designed to teach and Blackstone
 wanted his readers to learn.14             The readers for whom he wrote were
 “young nobility and gentry,”15 the leading laymen of the realm.16 Chief
 among these were those who were or would become legislators, and
 Blackstone was determined to instruct them not to harm by statute the
 liberties of Englishmen.17
         Blackstone’s aim to instruct lay readers shaped the Commentaries.
 This aim trained the focus of the Commentaries upon substantive rules of
 law, lending the Commentaries both its pathbreaking distinctive and also
 the daunting obstacle to its creation.18 Blackstone’s object was to teach
 laymen the laws of property, crimes, torts, and such — not how to draft
 legal instruments or plead at bar.19 Beyond teaching the substance of the
 law to laymen, this substantive-law focus gave “lawyers a new vision of
 the law.”20 The Commentaries imposed order and a clarifying system on the
12
   See Douglas H. Cook, Sir William Blackstone: A Life and Legacy Set Apart for God’s Work, 13
   REGENT U. L. REV. 169, 172-173 (2000-01).
13
   See McKnight, supra note 2, at 400.
14
   See John H. Langbein, Blackstone on Judging, in BLACKSTONE AND HIS COMMENTARIES:
   BIOGRAPHY, LAW, HISTORY 65, 77 (Wilfrid Prest ed., 2009).
15
   DAVID LIEBERMAN, THE PROVINCE OF LEGISLATION DETERMINED: LEGAL THEORY IN
   EIGHTEENTH-CENTURY BRITAIN 65 (1989).
16
   See Robert C. Berring, The Ultimate Oldie But Goodie: William Blackstone’s Commentaries on
   the Law of England, 4 J.L. 189, 190 (2014). This is not to say that Blackstone disregarded
   the education of lawyers by means of his Commentaries. See David Lemmings, Blackstone
   and Law Reform by Education: Preparation for the Bar and Lawyerly Culture in Eighteenth-
   Century England, 16 LAW HIST. REV. 211, 215, 251-52 (1998); Prest, supra note 2, at ix.
17
   See LIEBERMAN, supra note 15, at 56, 66.
18
   See S. F. C. Milsom, The Nature of Blackstone’s Achievement, 1 OXFORD J. LEGAL STUD. 1, 4, 6
   (1981).
19
   See id. at 2, 5, 12.
20
   Id. at 10, 12; see also Lemmings, supra note 16, at 243, 252.




                                             328
                                                      University of Bologna Law Review
                                                                          [Vol.4:2 2019]
                                                          https://doi.org/10.6092/issn.2531-6133/10402



 jumble that was English law.21 This arrangement was a key to its success.22
 It is Blackstone’s use of natural law that undergirds this arrangement.23
          Near     the    beginning        of   the     Commentaries          is    Blackstone’s
 introductory discussion of law.24 Law is “a rule of action dictated by some
 superior being,” and laws considered as rules for human conduct are “the
 precepts by which man, the noblest of all sublunary beings, a creature
 endowed with both reason and freewill, is commanded to make use of
 those faculties in the general regulation of his behavior.”25 The obligation
 to obey law derives from dependence upon the lawgiver, “[a]nd
 consequently as man depends absolutely upon his maker for every thing,
 it is necessary that he should in all points conform to his maker’s will.
 THIS will of his maker is called the law of nature.”26                            In its scope,
 Blackstone’s law of nature reminds one of Aquinas’s natural law.27
21
   See Jessie Allen, Law and Artiﬁce in Blackstone’s Commentaries, 4 J.L. 195, 195 (2014).
22
   See LIEBERMAN, supra note 15, at 33-36.
23
   See 1 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 37 (The Legal Classics
   Library 1983) (1765-70) (quoting with approval John Fortescue’s endorsement that
   lay students “trace[] up the principles and grounds of the law, even to their original
   elements”). Blackstone’s use of natural law in the Commentaries may also reﬂect his
   own introduction to the law. It was St. German’s Doctor and Student, a work integrating
   theological and legal thought, that drew Blackstone to the law. Cook, supra note 12, at
   170. Perhaps for similar reasons, the Commentaries turned students from theology to law.
   McKnight, supra note 2, at 401.
   Note that the pagination of the various editions of the Commentaries has become more or
   less standardized. This move is not without its problems, however. See Alschuler, supra
   note 1, at 3 n.4; cf.Carli N. Conklin, The Origins of the Pursuit of Happiness, 7 WASH. U. JURIS.
   REV. 195, 200 (2015)) (selecting for use the ﬁrst edition, as does the present article); Alan
   Watson, The Structure of Blackstone’s Commentaries, 97 YALE L.J. 795, 801 (1988) (same).
24
   See 1 BLACKSTONE, supra note 23, at 38-62. Blackstone’s approach reﬂects Christian and
   classical roots. Conklin, supra note 23, at 246. It owes a debt to Burlamaqui,HENRY SUMNER
   MAINE, ANCIENT LAW 94 (Oxford Univ. Press 1931) (1861).; McKnight, supra note 2, at 406-
   07, but not in its deﬁnition of law, J. M. Finnis, Blackstone’s Theoretical Intentions, 12 NAT.
   L.F. 163, 171 (1967). Blackstone’s deﬁnition of municipal law follows his organization of
   the Commentaries. See id. at 167-69.
25
   1 BLACKSTONE, supra note 23, at 39.
26
   Id.
27
   See THOMAS AQUINAS, THE SUMMA THEOLOGICA 209 (Daniel J. Sullivan ed., Fathers of the
   English Dominican Province trans., Encyclopaedia Britannica 1952) (1265-73). (I-II, 91, 2,
   observing, “Now among all others, the rational creature is subject to Divine providence in
   the most excellent way, in so far as it partakes of a share of providence, by being provident
   both for itself and for others. Therefore it has a share of the Eternal Reason, by which it
   has a natural inclination to its due act and end; and this participation of the eternal law in
   the rational creature is called the natural law . . . [T]he natural law is nothing else than
   the rational creature’s participation of the eternal law”).




                                                329
                                                    University of Bologna Law Review
                                                                        [Vol.4:2 2019]
                                                        https://doi.org/10.6092/issn.2531-6133/10402



 The voluntaristic stamp of Blackstone’s law of nature — it is the will of
 God — diminishes somewhat in the next words of the Commentaries.
 God’s wisdom leads him to prescribe only what corresponds to the nature
 of things and in this he conforms to “the eternal, immutable laws of good
 and evil.”28      Human reason is able to discover these laws, and God’s
 goodness leads him to link our happiness with obedience to the law of
 nature. “For he has so intimately connected, so inseparably interwoven
 the laws of eternal justice with the happiness of each individual, that the
 latter cannot be obtained but by observing the former; and, if the former
 be punctually obeyed, it cannot but induce the latter.”29 This link between
 the law of nature and human happiness “is the foundation of what we call
 ethics, or natural law.”30 Natural law comprises articles that “amount to
 no more than demonstrating, that this or that action tends to man’s real
 happiness, and therefore very justly concluding that the performance of it
 is a part of the law of nature.”31
         Blackstone then renders explicit the supreme authority of the law of
 nature:

             THIS law of nature, being co-eval with mankind and dictated

           by God himself, is of course superior in obligation to any other.

           It is binding over all the globe, in all countries, and at all times:

           no human laws are of any validity, if contrary to this; and such

           of them as are valid derive all their force, and all their authority,

           mediately or immediately, from this original.32

 Again, Blackstone’s law of nature brings to mind Aquinas’s natural law.33
         But Blackstone’s approach to what he calls natural law differs
 profoundly from that of Aquinas.                   We already have noted that the
28
   1 BLACKSTONE, supra note 23, at 40.
29
   Id.
30
   Id. at 41.
31
   Id.
32
   Id.
33
   See 2 AQUINAS, supra note 27, at 227-28 (I-II, 95, 2, observing, in an article on the relation
   of “human law” to “natural law,” that “every human law has just so much of the character
   of law as it is derived from the law of nature. But if in any point it differs from the law of
   nature, it is no longer a law but a corruption of law.”).



                                              330
                                                    University of Bologna Law Review
                                                                        [Vol.4:2 2019]
                                                        https://doi.org/10.6092/issn.2531-6133/10402



 Commentaries describes natural law as a set of demonstrations that
 certain human conduct leads to human happiness and consequently
 comports with the law of nature.34                 This description is nothing like
 Aquinas’s description of natural law as the participation of human beings
 in the eternal law, or perhaps vice versa.35                   This difference between
 Blackstone and Aquinas becomes yet clearer in the former’s comparison
 of divine law with natural law.
         Although human reason before the Fall sufficed to discover the
 precepts of the law of nature, human reason after the Fall “is corrupt, and
 [human] understanding full of ignorance and error.”36 Therefore, God of
 his compassion has informed us of the law of nature “by . . . immediate
 and direct revelation.”37           “The doctrines thus delivered we call the
 revealed or divine law, and they are to be found only in the holy
 scriptures.”38 So the natural law and the divine law both bespeak the law
 of nature.

           Yet undoubtedly the revealed law is (humanly speaking) of

           inﬁnite more authority than what we generally call the natural

           law. Because one is the law of nature, expressly declared so to

           be by God himself; the other is only what, by the assistance of

           human reason, we imagine to be that law. If we could be as
34
   See supra text accompanying note 31.
35
   See supra note 27.
36
   1 BLACKSTONE, supra note 23, at 41. For discussions of Aquinas’s approach to the impact
   of the Fall upon the operation of the natural law, see also CHARLES E. RICE, 50 QUESTIONS
   ON THE NATURAL LAW 159-63 (1993) and Russell Hittinger, Natural Law and Catholic Moral
   Philosophy, in A PRESERVING GRACE 1, 7-8 (Michael Cromartie ed., 1997). Hittinger ﬁnds
   that Aquinas, “[i]n his last recorded remarks on the subject of natural law,” said:
               Now although God in creating man gave him this law of nature,
               the devil oversowed another law in man, namely, the law of
               concupiscence. . . . Since then the law of nature was destroyed by
               concupiscence, man needed to be brought back to works of virtue, and
               to be drawn away from vice: for which purpose he needed the written
               law.
   Id. at 7 (citing Thomas Aquinas, Collations in Decem Praeceptis (1273)).
37
   1 BLACKSTONE, supra note 23, at 42.
38
   Id. In tension with his formulation here, elsewhere in the Commentaries Blackstone will
   write of “divine law, either natural or revealed,” 2 id. at 420, and “divine law both natural
   and revealed,” id. at 455. In these two instances, it appears that he uses “divine” to denote
   the divine origin of the law of nature rather than to denote divine law proper. So, in yet
   a third place, he writes of “those laws which the creator has given us; the divine laws, I
   mean, of either nature or revelation.” 4 id. at 177.


                                              331
                                                    University of Bologna Law Review
                                                                        [Vol.4:2 2019]
                                                        https://doi.org/10.6092/issn.2531-6133/10402



           certain of the latter as we are of the former, both would have an

           equal authority; but, till then, they can never be put in any

           competition together.39

 Natural law is “only what . . . we imagine to be” the law of nature.40
         The Commentaries continues with further observations on the
 relationship between these laws and human law:

             UPON these two foundations, the law of nature and the law of

           revelation, depend all human laws; that is to say, no human

           laws should be suffered to contradict these. There is, it is true, a

           great number of indifferent points, in which both the divine law

           and the natural leave a man at his own liberty; but which are

           found necessary for the beneﬁt of society to be restrained

           within certain limits. And herein it is that human laws have

           their greatest force and efficacy; for, with regard to such points

           as are not indifferent, human laws are only declaratory of, and

           act in subordination to, the former.41

 Two elements of this excerpt warrant special notice. First is Blackstone’s
 usage of the “law of nature” and the “natural law.”                           As mentioned
 above,42 his usage sometimes seems to depart from distinguishing the
 two, with natural law as a merely human construct thought to resemble
 the actual law of nature. On one reading, such a departure appears in this
 passage.       The second element is the connection between matters
 indifferent — matters for which the law of nature does not prescribe a
 speciﬁc rule — and human law. While there is a ﬁrm link between the
 laws of nature and human law, it appears that human law largely
39
   1 id. at 42.
40
   Id.
41
   Id. Examples of Blackstone’s references to the divine law include his discussion of the law
   of nuisance as enforcing “that excellent rule of gospel-morality, of ‘doing to others as we
   would they should do unto ourselves,’” 3 id. at 218, and of the criminal law, 4 id. at 11, 30,
   42, 43, 60, including laws against homicide, id. at 177, dueling, id. at 199, and sodomy,
   id. at 216. John Finnis has noted that Blackstone’s endorsement of the role divine law is
   to play in the formulation of human law does not lead him to confuse crime with sin. See
   Finnis, supra note 24, at 177.
42
   See supra note 7.




                                              332
                                                    University of Bologna Law Review
                                                                        [Vol.4:2 2019]
                                                        https://doi.org/10.6092/issn.2531-6133/10402



 concerns itself with matters indifferent. Whereas Aquinas casts human
 law essentially in the position of providing determinations that apply
 rules of the natural law in particular contexts,43 Blackstone sees human
 law having greatest play where the law of nature appears mute. This
 signiﬁcant role in his analysis for things indifferent owes a major debt to
 Blackstone’s Anglican point of view.44
         Blackstone’s introductory remarks on law and their relation to the
 rest of the Commentaries (and, for that matter, Blackstone’s entire
 project) have drawn sharp criticism.                  It is reported that no less an
 authority than Dr. Johnson remarked that Blackstone “thought clearly,
 but he thought faintly.”45 The Commentaries “is widely believed to rest on
 silly, ponderous, formal, conceptual, outdated, deductive, mechanistic,
 naive and hopelessly unrealistic jurisprudence,”46 to be lacking in rigor,47
 and apparently riven by inconsistencies.48                  Especially for his effort to
 satisfy the customary requirement of supplying his treatise with a general
 introduction on the law,49 Blackstone has received much criticism.50
 Beyond this, Blackstone seems largely to ignore the introductory doctrine
43
   See 2 AQUINAS, supra note 27, at 209-10 (I-II, 91, 3, observing that, “it is from the precepts
   of the natural law, as from general and indemonstrable principles, that the human reason
   needs to proceed to the more particular determination of certain matters. These particular
   determinations, devised by human reason, are called human laws . . .”). The Commentaries
   is not wholly lacking this approach. For example: “And sometimes, where the thing itself
   has it’s [sic] rise from the law of nature, the particular circumstances and mode of doing
   it become right or wrong, as the laws of the land shall direct.” 1 BLACKSTONE, supra note
   23, at 55.
44
   The signiﬁcant role in the Commentaries for human law to supply rules for matters
   indifferent does not preclude a role for the law of nature (or natural law) in supplying
   speciﬁc rules for human law. See, e.g., 1 BLACKSTONE, supra note 23, at 435-36, 441
   (discussing parents and children); 2 Id. at 390, 392-93 (discussing property in animals);
   4 Id. at 11 (discussing capital punishment), 29 (discussing wife’s defense of duress),
   30 (discussing self-defense), 42 (discussing guilt from crime), 67, 117 (discussing
   international law).
45
   Richard A. Posner, Blackstone and Bentham, 19 J.L. & ECON. 569, 570 (1976) (quoting C.
   HERBERT STUART FIFOOT, LORD MANSFIELD 26 (1936)). The early classic effort to debunk the
   Commentaries is JEREMY BENTHAM, A FRAGMENT ON GOVERNMENT (London, Thomas Payne
   et al. 1776), but Bentham’s target is as much the notion of natural law as the Commentaries
   itself. Posner’s article explains that Bentham’s is a “fundamentally misconceived attack
   on the Commentaries.” Id. at 569.
46
   Alschuler, supra note 1, at 2.
47
   See BOORSTIN, supra note 1, at 189.
48
   See Posner, supra note 45, at 571.
49
   See McKnight, supra note 2, at 402.
50
   See Michael Lobban, Blackstone and the Science of Law, 30 HIST. J. 311, 311 (1987); McKnight,
   supra note 2, at 402, 404. Lobban’s criticisms are answered in Harold J. Berman & Charles


                                              333
                                                    University of Bologna Law Review
                                                                        [Vol.4:2 2019]
                                                        https://doi.org/10.6092/issn.2531-6133/10402



 he supplies once his introduction is behind him.51 H.L.A. Hart has argued
 that Blackstone does not use the law of nature to support English law, and
 that his natural law test of the validity of positive law is vacuous in any
 event.52 Although these arguments have not gone unanswered,53 they
 actually point not to defects but rather to the very natural law technique
 Blackstone uses in his discussion of English law in the Commentaries, the
 technique based upon his Anglican understanding.54
         The Commentaries has suffered at the hands of some commentators.
 The introductory explanation of the law of nature and natural law has been
 a popular target of criticism. So has Blackstone’s use — or rather non-use
 — of these elements when he develops his commentaries on the laws of
 England proper. Nevertheless, a more liberal appreciation of his work will
 notice a highly developed and broadly used natural law approach in those
 commentaries. This appreciation, however, must be attuned to discerning
   J. Reid, Jr., The Transformation of English Legal Science: From Hale to Blackstone, 45 EMORY
   L.J. 437, 490 n.107 (1996).
51
   See supra notes 41 and 44 for instances where the Commentaries explicitly draws upon
   speciﬁc rules of the law of nature, natural law, or divine law.
52
   H. L. A. Hart, Blackstone’s Use of the Law of Nature, 1956 BUTTERWORTHS S. AFR. L. REV. 169,
   169-71.
53
   See Finnis, supra note 24, at 171-74.
54
   McKnight concurs in Hart’s view of Blackstone’s treatment of the law of nature and sees
   it as making way for Blackstone’s focus on indifferent matters. See McKnight, supra
   note 2, at 405. McKnight’s understanding also supports, if ironically, the argument that
   Blackstone thereby paves the way for his own brand of natural law analysis. See infra notes
   309-12 and accompanying text.
   Two other criticisms of the Commentaries deserve scant mention here. First, the radical
   critique of Duncan Kennedy, The Structure of Blackstone’s Commentaries, 28 BUFF. L. REV.
   205 (1979), that ﬁnds Blackstone “supremely unconvincing.” Id. at 211. Kennedy’s
   critique itself has been found supremely unconvincing. See, e.g., Alschuler, supra note 1, at
   45-46; Berman & Reid, supra note 50, at 492 n.108; John W. Cairns, Blackstone, an English
   Institutist: Legal Literature and the Rise of the Nation State, 4 OXFORD J. LEGAL STUD. 318,
   350-52 (1984); Watson, supra note 23, at 795, 802. Second, some commentators criticize
   Blackstone on his discussion of absolute rights, as if his use of “absolute” means incapable
   of diminishment or compromise. See, e.g., Lobban, supra note 50, at 329-30; McKnight,
   supra note 2, at 401 n.16. This criticism falls aside upon paying more careful attention to
   Blackstone’s usage:
                  THE rights of persons considered in their natural capacities are
               also of two sorts, absolute, and relative. Absolute, which are such as
               appertain and belong to particular men, merely as individuals or single
               persons: relative, which are incident to them as members of society,
               and standing in various relations to each other.
   1 BLACKSTONE, supra note 23, at 119. “Absolute” means apart from social context, not
   sacrosanct. See Watson, supra note 23, at 803.




                                              334
                                                   University of Bologna Law Review
                                                                       [Vol.4:2 2019]
                                                       https://doi.org/10.6092/issn.2531-6133/10402



 a use of the natural law that Blackstone’s own introduction may not have
 foretold for his readers today.




         3. BLACKSTONE AND JUSTINIAN

 Before seeing Blackstone as an Anglican it helps to see him as a civilian —
 a master of the Corpus Juris Civilis, the body of Roman law assembled
 under the Byzantine Emperor Justinian in the early sixth century.55
 Blackstone’s own studies at Oxford made him well acquainted with
 Roman law.56 This acquaintance primed him for cultivating his Anglican
 approach to the natural law, an approach that ends up looking very much
 like that of Justinian.
         As noted already, the Commentaries presents the laws of England
 primarily as a body of substantive law.57                      This approach enabled
 Blackstone to present the laws as a system, arranging them conceptually
 by categories.58       In this, the Commentaries resembles the Roman law
 treatises of the ancient jurisconsult Gaius and of Justinian, whose
 Institutes is a component of the Corpus Juris Civilis.59 The Commentaries has
 been likened to Justinian’s work in both content and effect.60
55
   For an introduction to Justinian and his work, see Craig A. Stern, Justinian: Lieutenant of
   Christ, Legislator for Christendom, 11 REGENT U. L. REV. 1 (1998). Helmholz has remarked
   that Blackstone was perhaps one-ﬁfth a civilian, R.H. Helmholz, Natural Law and Human
   Rights in English Law: From Bracton to Blackstone, 3 AVE MARIA L. REV. 1, 5 (2005), not so
   small a fraction considering how imbued Blackstone was with the common law.
56
   See Cook, supra note 12, at 170-72.
57
   See supra text accompanying note 18.
58
   See Berring, supra note 16, at 191; Watson, supra note 23, at 810. It may be that Blackstone
   came to this method owing to his “academic persona.” Wilfrid Prest, The Religion of a
   Lawyer?: William Blackstone’s Anglicanism, 21 PARERGON 153, 158 (2004).
59
   See Milsom , supra note 18, at 10-11; Watson, supra note 23, at 810 (ﬁnding the
   Commentaries to be a “direct descendant of Justinian’s Institutes”); see also Cairns, supra
   note 54, at 320, 340, 350, 359 (ﬁnding the Commentaries to be largely an “Institutional”
   work).
60
   See BOORSTIN, supra note 1, at 3. Others have written that Blackstone’s work is
   fundamentally unlike Justinian’s, Berman & Reid, supra note 50, at 492-96, or failed
   fundamentally by forcing the content of the common law into an unwelcoming structure
   from Roman law. Lobban, supra note 50, at 312, 321-23.




                                             335
                                               University of Bologna Law Review
                                                                   [Vol.4:2 2019]
                                                  https://doi.org/10.6092/issn.2531-6133/10402



 Like the Commentaries,          the Corpus Juris Civilis presents abstract
 introductory discussions of natural law61 and manifests its actual use of
 natural law in the body of the work, the treatment of the law of Rome.
 Drawing on the universal and supreme authority of natural law, Justinian
 used it to support and explain Roman law. Intent on promulgating law for
 the entire Roman world, Justinian hoped to justify Roman law as
 universal by demonstrating that it reﬂected universal principles of law. Of
 course, the Emperor looked to support his own legal regime, not to supply
 arguments to criticize or attack it. The dignity and universal authority of
 the natural law lay ready to lend dignity and universal authority to Roman
 law.62
          Beyond lending this support, the natural law helped explain the
 rules of Roman law. Natural and Roman law were viewed as intertwined,
 so much so that natural law was best seen through existing Roman law,
 the celebrated simplicity and harmony of which derived from this
 relationship.63 As in classical Greek thought on natural law, natural law
 was understood to be from the “aboriginal design of nature,” but Roman
 thinking also understood actual, positive Roman law to approximate the
 ideal natural law, gradually conforming to it more fully.64 Far from a
 revolutionary doctrine, the Roman natural law approach encouraged
 Roman lawyers to ﬁnd the natural law in positive law.65
          In actual operation, Roman natural law concerned itself with
 conforming legal rules to the nature of things.66 It sought the intrinsic
 character of legal subjects, applying natural reason to the facts of the
61
   See ALEXANDER PASSERIN D’ENTRÈVES, NATURAL LAW 24-25, 27-33 (Transaction Publishers
   1994) (1951).
62
   See id. at 23-24, 31-32.
63
   See MAINE, supra note 24, at 60, 63-64.
64
   Id. at 44-45, 60-63.
65
   See id. at 63, 73.
66
   See BARRY NICHOLAS, AN INTRODUCTION TO ROMAN LAW 57 (1962).




                                         336
                                                    University of Bologna Law Review
                                                                        [Vol.4:2 2019]
                                                        https://doi.org/10.6092/issn.2531-6133/10402



 matter at hand.67 A master of both natural law theory and Roman law
 likens this work to developing rules for preparing ﬂaky piecrust.68
         The Commentaries makes use of natural law in much the same
 way.69 Far from using natural law to trump the law of England,70 and only
 rarely using natural law to criticize English law,71 Blackstone follows the
 Roman natural law tradition in explaining why English law is as it is.72
 This use is in keeping with Blackstone’s practical rather than theoretical
 bent.73 Like the natural law of the Roman lawyer,74 Blackstone’s natural
 law unites is with ought, seeking norms from the nature of things,75 but
 with more warrant.76
         A good example of this technique is offered by Blackstone’s
 explanation of the law of property. As Professor Graham has explained,
 the Commentaries does not present irrational support of old ways but
 rather a studied focus on the physical nature of things.77 From nature and
 the natural order in physical context, for example, Blackstone evolves a
 “natural history” of property to rationalize English property law.78 .
 Natural law inheres in the nature of things, and the law of England, like
67
   See id.
68
   See D’ENTRÈVES, supra note 61, at 148; see also McKnight, supra note 2, at 406 n.67 (agreeing
   with Maine on the somewhat utilitarian cast of Roman natural law).
69
   Although it may be that Blackstone never explicitly asserted that one could discover the
   law of nature from English law, or vice versa. McKnight, supra note 2, at 403 n.33. At
   least one commentator has written that the common-law tradition reﬂects the notion that
   innate reason has led the positive law to hold within itself the natural law. Lobban, supra
   note 50, at 314. Similar to this link is the one Blackstone approvingly found to be advanced
   by Aristotle: learning positive law is a good way to learn ethics. See Conklin, supra note 23,
   at 205.
70
   See LIEBERMAN, supra note 15, at 49-55.
71
   See id. at 46.
72
   See Langbein, supra note 14, at 77.
73
   See PREST, supra note 1, at 310; see also Posner, supra note 45, at 576 (pronouncing
   Blackstone “better at particulars than at generalization”).
74
   See D’ENTRÈVES, supra note 61, at 151.
75
   See BOORSTIN, supra note 1, at 60. One commentator has tagged Blackstone a “natural law
   maverick” for constructing a “pastiche” of natural law and his own views. McKnight,
   supra note 2, at 407. Perhaps the link of is with ought in his romanesque approach invites
   such criticism.
76
   See infra notes 290-97 and accompanying text.
77
   Nicole Graham, Restoring the “Real” to Real Property Law: A Return to Blackstone?, in
   BLACKSTONE AND HIS COMMENTARIES, supra note 14, at 151.
78
   See id. at 154-55, 160.




                                              337
                                                   University of Bologna Law Review
                                                                       [Vol.4:2 2019]
                                                       https://doi.org/10.6092/issn.2531-6133/10402



 Roman law, developed in light of this natural law.79
         The Commentaries holds many instances where Blackstone
 explicitly explains that English law is true to the nature of things —
 sometimes presented as fulﬁlling the obligation of the law to reﬂect
 “necessity.” This, after he notes that the law of nature inheres in the
 nature of things,80 and that sound Roman laws took “the nature of things
 for their guide.”81 Some examples: Blackstone establishes the obligation
 of allegiance to civil government upon the nature of civil government.82
 The legal relationship between husband and wife is founded in nature.83
 Necessity has given rise to the law of property,84 and laws on personal
 property take into account their transitory nature.85 The laws of civil
 wrongs derive in several respects from the nature of things, often human
 nature,86 and criminal laws likewise derive from the nature of things or
 reﬂect the nature of things.87 In these instances, Blackstone seems to
 hark back to the Roman law, rooted as it was in the nature of things.
         Roman law makes its appearance in the Commentaries in at least
 two other general ways that support Blackstone’s Anglican approach to
 the law. First is its concept of the jus gentium, the law of nations. If the
 natural law truly is universal, one would expect it — or projections from it
 — to be found in the laws of all nations. The law of nations, understood as
 the body of laws to be found widespread among the nations of the earth,
 therefore becomes a window on natural law, as the Romans believed.88
79
   The Commentaries suggests that natural law inheres in the nature of things in such
   language as, “when the supreme being formed the universe, and created matter out
   of nothing, he impressed certain principles upon that matter, from which it can never
   depart, and without which it would cease to be.” 1 BLACKSTONE, supra note 23, at 38. If
   Blackstone tags the law of property as governing things indifferent, see infra note 152 and
   accompanying text, he does not thereby hold that property law is wholly without natural
   law principles. See infra notes 309-12 and accompanying text.
80
   See 1 BLACKSTONE, supra note 23, at 40.
81
   See id. at 58.
82
   Id. at 354, 358.
83
   See id. at 410.
84
   See 2 id. at 4, 7.
85
   See 3 id. at 146.
86
   See id. at 4, 22, 116, 379, 434.
87
   See 4 id. at 20-21, 27, 74, 186, 216.
88
   See D’ENTRÈVES, supra note 61, at 32-33; MAINE, supra note 24, at 46; NICHOLAS, supra note
   66, at 55.


                                             338
                                                  University of Bologna Law Review
                                                                      [Vol.4:2 2019]
                                                     https://doi.org/10.6092/issn.2531-6133/10402



 This value of the jus gentium is evident in Blackstone’s use of
 comparative law.         He looks to law outside England not so much to
 disparage non-English law as to ﬁnd points of commonality.                             Those
 points support English law by suggesting that it rests upon natural law
 foundations.89 A similar cast in Anglican theology could therefore offer a
 link and support to Blackstone’s approach to the law.
         Beyond its content, another aspect of Roman law that inﬂuenced
 the Commentaries and would harmonize well with an Anglican
 understanding of the law is the process of the development of Roman law.
 Roman law developed over hundreds of years, largely case by case.90 In
 this respect, its development paralleled that of English common law.
 While Roman law came to repose nearly exclusively in the Corpus Juris
 Civilis,91 English law rejected such codiﬁcation in favor of its commitment
 to the method by which Roman law developed.92 Some have noted that
 Blackstone took the view of a practicing lawyer and judge in the
 Commentaries,93 and though it was famously said that, “In England less
 attention is paid to natural law than anywhere else in the world,”94
 Blackstone used natural law arguments successfully at the bar.95                           The
 common law — the law of cases — required barristers and judges to
 consider cases with an eye to their context.                  This technique largely
 provided the materials Blackstone assembled in the Commentaries. It is a
 technique that beﬁts the Anglican way, a technique that developed law
 that itself beﬁts the Anglican way. It also was the way of Roman lawyers.
89
   See infra notes 279-89 and accompanying text.
90
   See NICHOLAS, supra note 66, at 28-32.
91
   See 2 EDWARD GIBBON, THE DECLINE AND FALL OF THE ROMAN EMPIRE 80 (Encyclopaedia
   Britannica Inc. 1952) (1788).
92
   See 2 FREDERICK POLLOCK & FREDERIC WILLIAM MAITLAND, THE HISTORY OF ENGLISH LAW
   BEFORE THE TIME OF EDWARD I 585 (Liberty Fund, Inc. 2010) (1898). So the English were
   “more Roman than the Romanists,” those who received as authority the Corpus Juris Civilis
   rather than adhering to the method by which Roman law developed. Id. at 705.
93
   See Berman & Reid, supra note 50, at 503. But see infra note 235.
94
   Helmholz , supra note 55, at 20; see also D’ENTRÈVES, supra note 61, at 119 n.1.
95
   McKnight, supra note 2, at 407-09.




                                            339
                                                    University of Bologna Law Review
                                                                        [Vol.4:2 2019]
                                                        https://doi.org/10.6092/issn.2531-6133/10402



 If common law judges in deciding cases were making law up, they were
 making it up to ﬁt.96
          Blackstone, student of Roman law, reﬂected a Roman law approach
 to the natural law in the Commentaries. Beginning, like the Digest and
 Institutes of the Corpus Juris Civilis, with an abstract exposition of natural
 law and related formulations, the body of the Commentaries puts natural
 law most to use in explaining and justifying particular rules of law.
 Seeking the dictates of reason and the guide of reasonableness,
 Blackstone rests rules of law upon the nature of the matter at hand — a
 typically Roman technique. In this and other respects, Blackstone’s use of
 natural law ﬁts well with the Anglican stance on natural law that he
 adopts in the Commentaries.




          4. BLACKSTONE AND THE CHURCH OF ENGLAND

 No surprise that Sir William Blackstone, Oxford don, justice of both the
 King’s Bench and Common Pleas, was an Anglican. What may surprise is
 how serious an Anglican Blackstone was, and how deeply his Anglicanism
 inﬂuenced the jurisprudence of his Commentaries.
          Blackstone’s deep and pervasive Christian faith was manifest.97 As
 a young man he took a serious interest in religion,98 and made a careful
 investigation         of     Anglicanism99          before        committing            himself
 wholeheartedly to orthodox Anglicanism.100                            He celebrated his
 commitment in a poem, a vision of diverse faiths in which he praised the
 Church of England for its moderation, liberty, support of science,
96
    See Milsom, supra note 18, at 11-12. Milsom here speaks of ﬁt according to patterns of legal
    rules, but the notion of judges in a sense creating rules that at the same time are seen as
    compelled by antecedent norms is apropos.
 97
    See Cook, supra note 12, at 169.
 98
    See Prest, supra note 58, at 163.
 99
    See Cook, supra note 12, at 174.
100
    See PREST, supra note 1, at 309; Prest, supra note 3, at 123; Prest, supra note 58, at 161.




                                              340
                                                   University of Bologna Law Review
                                                                       [Vol.4:2 2019]
                                                       https://doi.org/10.6092/issn.2531-6133/10402



  reforming inﬂuence, and virtue.101               Although a committed Anglican,
  Blackstone was not so committed that he could brook no Dissenters,102
  going so far as to alter the Commentaries in light of Dissenter reaction to
  an earlier edition of the work.103 The general Anglican understanding of
  providential development from primitive sources104 and the important
  role reason plays in perceiving truth105 would support Blackstone’s
  construction of the Commentaries.
           The substantial alignments between Anglican theology and the
  Commentaries are the focus of the next pages of this article.



      4.1. RICHARD HOOKER

  Key to the Church of England is the work of the Elizabethan divine,
  Richard Hooker.106 Beyond helping to shape the contours of Anglicanism
  as a whole,        Hooker’s inﬂuence on legal theory was especially
  pronounced.107          Blackstone’s Anglican understanding of the law
  necessarily reﬂects Hooker’s understanding.
          Hooker held law in high esteem:

           [O]f Law there can be no less acknowledged, than that her seat is

           the bosom of God, her voice the harmony of the world: all things

           in heaven and in earth do her homage, the very least as feeling

           her care, and the greatest as not exempted from her power: both

           Angels and men and creatures of what condition soever, though
101
    See WILLIAM BLACKSTONE, THE PANTHEON 27-32 (photo. reprint, Gale ECCO Print Editions
    2010) (1747). Prest has called Blackstone a “comparative theologian.” Prest, supra note 3,
    at 110.
102
    See Prest, supra note 58, at 153, 165-66.
103
    See id. at 155-56.
104
    See BOORSTIN, supra note 1, at 74-75.
105
    See Raymond D. Tumbleson, “Reason and Religion”: The Science of Anglicanism, 57 J. HIST.
    IDEAS 131, 133, 151 (1996).
106
    See NIGEL ATKINSON, RICHARD HOOKER AND THE AUTHORITY OF SCRIPTURE, TRADITION AND
    REASON, at ix (1997). Though such, his work earned surprising approval from the leader of
    the Roman Catholic Church. See RUSSELL KIRK, THE ROOTS OF AMERICAN ORDER 246 (1974).
107
    Harold Berman highlights Hooker’s inﬂuence as to political authority and consent,
    the importance of history, and the large role played by matters indifferent—those not
    determined by transcendent sources of law. See Harold J. Berman, The Origins of Historical
    Jurisprudence: Coke, Selden, Hale, 103 YALE L.J. 1651, 1665-66 (1994).



                                             341
                                                     University of Bologna Law Review
                                                                         [Vol.4:2 2019]
                                                         https://doi.org/10.6092/issn.2531-6133/10402



           each in different sort and manner, yet all with uniform consent,

           admiring her as the mother of their peace and joy.108

  Law for Hooker is fundamental.109 Furthermore, his treatment of law is
  no incidental matter but derives from his theology.110 Law, as one might
  gather from the excerpt just quoted, reigns over politics. In this, Hooker
  departs from an Aristotelian view,111 and follows, as elsewhere, the
  magisterial reformers rather than Augustine or Aquinas.112
          Hooker goes so far as to hold that God himself works according to
  law,113 and for at least one commentator, Hooker holds that God is law.114 A
  famous apothegm of Hooker states that “the being of God is a kind of law
  to his working.”115
          In some respects, Hooker’s general discussion of the fundamental
  types of law adumbrates that of Blackstone. Hooker explains that, in his
  usage, both the law of nature and divine law reveal eternal law to
  humankind.116 At the same time, however, Hooker holds divine law to be
  positive law, a creature of God’s reason and will both, whereas for
  Blackstone it is simply a revelation of the law of nature.117                        Likewise,
  Hooker sees some human law as an adaptation of natural law, and other
  human law as an ordinance “merely human,” reasonable and convenient
108
     1 RICHARD HOOKER, OF THE LAWS OF ECCLESIASTICAL POLITY 232 (J.M. Dent & Sons, Ltd. 1907)
     (1594, 1597).
109
     See W.J. TORRANCE KIRBY, RICHARD HOOKER, REFORMER AND PLATONIST 48 (2005). “Perhaps
     the most inﬂuential Anglican thinker to make explicit use of natural law is the Elizabethan
     divine, Richard Hooker . . . .” Will Adam, Natural Law in the Anglican Tradition, in
     CHRISTIANITY AND NATURAL LAW 58, 63 (Norman Doe ed., 2017).
 110
     See id. at 55.
 111
     See ROBERT K. FAULKNER, RICHARD HOOKER AND THE POLITICS OF A CHRISTIAN ENGLAND 114-16
     (1981).
 112
     See KIRBY, supra note 109, at 52, 58-78.
 113
     See W.J. Torrance Kirby, Reason and Law, in A COMPANION TO RICHARD HOOKER 251, 253, 255
     (Torrance Kirby ed., 2008).
114
     See KIRBY, supra note 109, at 51; Kirby, supra note 113, at 251.
 115
     1 HOOKER, supra note 108, at 150.
116
     See Kirby, supra note 113, at 265. Elsewhere, Kirby notes that the question of Hooker’s
     doctrine of natural law is controversial. See KIRBY, supra note 109, at 57.
 117
     See L.S. THORNTON, RICHARD HOOKER 32, 107 (1924). In this context Hooker calls law
     “positive” if express revelation is necessary to know it. 1 HOOKER, supra note 108, at 220
     n.1. Also, apparently unlike Blackstone, Hooker observes that the evidence of the senses
     is clear and strong while that of revelation is complicated and complex. THORNTON, supra,
     at 16. At the same time, however, the object held out in the Scriptures is more certain than
     that in the senses. Id. at 18.



                                               342
                                                    University of Bologna Law Review
                                                                        [Vol.4:2 2019]
                                                        https://doi.org/10.6092/issn.2531-6133/10402



  for the time and place.118 A similar formulation of human law will ﬁnd its
  way into the Commentaries.119
          The line from Hooker to Blackstone is more clearly traced along
  particular elements to be found in the works of both. One is the role of
  human reason in the development of law.120                     Like other Reformation
  theologians, Hooker asserts that Scripture and reason both convey to
  humans the knowledge of God and of his eternal law.121 “It was part of
  God’s nature to work in an orderly and reasonable way .                            .    .   .”122
  Consequently, “God’s own creation also worked in an orderly and
  reasonable way,”123 a way ruled by law.                  God acts to accomplish his
  “rational purpose.”124         So for Hooker, the appeal to reason becomes
  key.125 The law of reason is for all humans,126 endowed as they are with “a
  natural practical wisdom.”127 Humans ﬁnd themselves ruled by the law of
  reason, divine law, and human law128 — the last resting upon rational
  human nature129 and either resolving “probable matters” or “clarify[ing]
118
     NIGEL VOAK, RICHARD HOOKER AND REFORMED THEOLOGY 117 (2003); see also FAULKNER, supra
     note 111, at 114 (reading Hooker to state that human law is discovered naturally, but
     that the authority to do so is from God); Rowan Williams, Foreword: Of the Lawes of
     Ecclesiastical Politie Revisited, in A COMPANION TO RICHARD HOOKER, supra note 113, at xv,
     xviii-xix (distinguishing in Hooker laws for humanity from laws for particular societies,
     with both legitimate and binding).
119
     See infra notes 305-12 and accompanying text. Also ﬁnding its way into the Commentaries
     is Hooker’s usage of the term lex gentium to mean international law rather than something
     like the Roman usage of jus gentium discussed above at notes 88 to 89. Finnis, supra note
     24, at 177.
120
     Of course, some role for human reason is found in standard views on the making of law,
     with perhaps the classic being that of Aquinas. See, e.g., supra note 43. Nevertheless, the
     uses to which Hooker and Blackstone put reason bear a special affinity, as discussed below.
     See infra notes 305-12 and accompanying text.
 121
     See KIRBY, supra note 109, at 74; see also KIRK, supra note 106, at 243.
122
     ATKINSON, supra note 106, at 13.
123
     Id.
124
     KIRBY, supra note 109, at 51.
125
     See THORNTON, supra note 117, at 13; see also Adam, supra note 109, at 63 (Hooker “often
     uses the term ‘law of reason’ as synonymous with ‘natural law’”), 73 (Hooker took “the
     explicit doctrine of natural law of the Thomistic tradition and repackaged it as the law of
     reason”), 76 (“The concept of natural law, and its derivative—the law of reason, played a
     central role in the thought of Richard Hooker . . . .”).
126
     See FAULKNER, supra note 11, at 63, 72.
127
     KIRBY, supra note 109, at 55. And reason shows the good, THORNTON, supra note 117, at
     37, presumably the key to the happiness all humans seek. See KIRBY, supra note 109, at
     75; THORNTON, supra note 117, at 38. This idea too ﬁnds its way into Blackstone. See supra
     notes 28-31 and accompanying text.
128
     See ATKINSON, supra note 106, at 14.
129
     See THORNTON, supra note 117, at 36-37.



                                              343
                                                    University of Bologna Law Review
                                                                        [Vol.4:2 2019]
                                                        https://doi.org/10.6092/issn.2531-6133/10402



  and enforc[ing] the necessary precepts of reason.”130                        The authority
  Hooker grants to human reason, a touchstone of Anglicanism, holds sway
  in the Commentaries, as shall appear.131
          A second major inﬂuence of Hooker upon Blackstone is his
  endorsement of the authority of custom. Against the Puritan threat of
  “singularity,” lack of consensus,132 Hooker counterpoised consent,133 a
  distant consent presumed to continue.134 Custom, modiﬁed appropriately
  by customarily legitimate written law, is authoritative and likely to induce
  obedience.135 This appreciation for custom ﬁts well with Hooker’s view
  that God teaches through human experience.136                            It also supports
  Blackstone’s hailing custom as the common law, a move that enabled him
  to capture the advantages of both primitive sources and traditional
  developments.137
          Third is the related matter of Hooker’s use of history. For Hooker,
  Scripture supports the value of experience.138 Joined with his notion that
  God delivers law providentially,139 these views support Hooker’s position
  that attaining truth is a gradual affair played out in history.140 Humans may
  make laws, but in a sense those laws are God’s as he works his providential
  will.141 History as the unfolding of gradual development142 is normative
  for Hooker.143 Consequently, Harold Berman has found in Hooker a key to
  English historical jurisprudence and its continuing inﬂuence144 as well as
130
    FAULKNER, supra note 111, at 115.
131
    See infra notes 305-12 and accompanying text.
132
    ATKINSON, supra note 106, at 50.
133
    See FAULKNER, supra note 111, at 103, 111.
134
    See id. at 112.
135
    See 1 HOOKER, supra note 108, at 422; see also ATKINSON, supra note 106, at 55; KIRK, supra
    note 106, at 244.
136
    See KIRK, supra note 106, at 244-45; Williams, supra note 118, at xix.
137
    See BOORSTIN, supra note 1, at 73.
138
    See THORNTON, supra note 117, at 17.
139
    See FAULKNER, supra note 111, at 114.
140
    See THORNTON, supra note 117, at 45-46.
141
    See id. at 37. Such a commitment to historical development, adapted to local conditions,
    lies at the core of Hooker’s chief aim—to explain and defend the ecclesiastical polity of
    the Church of England. See ATKINSON, supra note 106, at 58.
142
    See ATKINSON, supra note 106, at 47.
143
    See id. at 54.
144
    Berman, supra note 107, at 1664-66.




                                             344
                                                     University of Bologna Law Review
                                                                         [Vol.4:2 2019]
                                                         https://doi.org/10.6092/issn.2531-6133/10402



  an emphasis on historical continuity.145 For Blackstone, history is the key
  to understanding English law.146
          The last marked inﬂuence of Hooker on Blackstone is the
  importance of the concept of things indifferent, matters not conclusively
  ordained by transcendent law but rather left more to human
  determination.147 Positive laws may resolve matters that God leaves to
  human liberty.148 So, while some human laws are based upon natural
  law,149 its necessary tenets are few, leaving most matters to public
  authority.150      Blackstone takes a similar tack151 : Daniel Boorstin has
  discussed the remarkable degree to which Blackstone holds that private
  property itself is a creature of civil law.152 Crimes not mala in se but rather
  those “with regard to things in themselves indifferent . . . become either
  right or wrong, just or unjust, duties or misdemeanors, according as the
  municipal legislator sees proper.”153 “Lands are not naturally descendible
  any more than thrones: but the law has thought proper, for the beneﬁt
  and peace of the public, to establish hereditary succession in one as well
145
     See id. at 1666.
146
     See BOORSTIN, supra note 1, at 36; LIEBERMAN, supra note 15, at 42; Conklin, supra note 23,
     at 218. Lobban ﬁnds in Blackstone a commitment to authority and history over deductive
     reasoning, see Lobban, supra note 50, at 328, and views the Commentaries as intertwining
     theory with history. Id. at 330. And Boorstin ﬁnds a telling example of Blackstone’s
     commitment to history in his treatment of the Revolution of 1688. BOORSTIN, supra note 1,
     at 26.
147
     See ATKINSON, supra note 106, at 59-60.
148
     See 2 HOOKER, supra note 108, at 363.
149
     THORNTON, supra note 117, at 32.
150
     See FAULKNER, supra note 111, at 113; see also id. at 100 (observing that, after the law
     of reason, human law holds prominence for Hooker), 112 (observing that, once natural
     necessity calls for a rule, nearly any rule will do).
 151
     While for Blackstone “indifferent” can mean diverse things, Finnis, supra note 24,
     at 172-73, Blackstone imitates Hooker on biblical law, for example, acceding to its
     authority but ﬁnding its still-obligatory moral law pertinent to very few issues. See
     D. SEABORN DAVIES, THE BIBLE IN ENGLISH LAW 20 (1954). As to one such instance, it is
     both intriguing and relevant to note that Blackstone observes that blood guilt—a concept
     harking back to biblical standards—would adhere to Parliament were it to over-extend
     capital punishment. 4 BLACKSTONE, supra note 23, at 11. The Bible also speaks speciﬁcally
     of blood guilt for over-extension of capital punishment. See DEUTERONOMY 19:4-10. See
     generally Craig A. Stern, Torah and Murder: The Cities of Refuge and Anglo-American Law,
     35 VAL. U. L. REV. 461 (2001) (demonstrating the inﬂuence of the biblical law of homicide
     upon the Anglo-American law of homicide).
152
     BOORSTIN, supra note 1, at 170-74, 179-80. See 1 BLACKSTONE, supra note 23, at 185; 2 Id. at
     2, 210-11, 491 for pertinent passages from the Commentaries.
153
     1 BLACKSTONE, supra note 23, at 55.




                                               345
                                                 University of Bologna Law Review
                                                                     [Vol.4:2 2019]
                                                    https://doi.org/10.6092/issn.2531-6133/10402



  as the other.”154 Regarding the jurisdiction of courts, “[e]very nation
  must and will abide by it’s [sic] own municipal laws; which various
  accidents conspire to render different in almost every country in
  Europe.”155 Apart from these speciﬁc observations regarding indifferent
  matters, Blackstone’s chief use of natural law paradoxically guides the
  resolution of matters that, in a sense, are indifferent.156 More on this use
  later.157
         The teaching of Hooker was not lost on the English legal theorists
  that followed. Edward Coke viewed the law as reason in history — reason
  in the sense of reasonable, not rationalistic — and understood that
  natural law was incorporated into human law.158 Even more than Coke,
  Matthew Hale especially inﬂuenced Blackstone in the Commentaries.159
  Like Hooker, Hale saw natural law and divine law as authoritative but also
  as speaking only to a limited set of questions.160                     Likewise, Hale
  understood history as providence,161 with positive law accordingly
  developed through time.162 This historical focus ﬁnds its way from Hale
  into the Commentaries.163        Also, both Hale’s locating reason within a
  particular object (in addition to its being a human faculty) and his debt to
  natural science and empiricism164 seem reﬂected in the Commentaries.165
         The Anglicanism of Hooker, Coke, and Hale, and their emphasis on
  reason and history alongside the authority of natural law and Holy Writ,
  are to be seen in Blackstone’s Commentaries. An even clearer inﬂuence on
154
    Id. at 185.
155
    3 id. at 87.
156
    So, as for Hooker, such human law is “grounded upon the Word,” 1 HOOKER, supra note
    108, at 309, but not dictated by it.
157
    See infra notes 305-12 and accompanying text.
158
    See Berman, supra note 107, at 1690-93.
159
    See Berman & Reid, supra note 50, at 443, 489-94; Cairns, supra note 54, at 340, 352;
    Finnis, supra note 24, at 164-65; Watson, supra note 23, at 810-12.
160
    See Berman, supra note 107, at 1709.
161
    See id. at 1722.
162
    See id. at 1708, 1711-14.
163
    See id. at 1733.
164
    See id. at 1715, 1729.
165
    See infra notes 241-46, 291-93 and accompanying text.




                                           346
                                                    University of Bologna Law Review
                                                                        [Vol.4:2 2019]
                                                        https://doi.org/10.6092/issn.2531-6133/10402



  Blackstone, however, is Anglican thought closer to his own time. It is to
  that thought that we now turn.



      4.2. THE LATITUDINARIANS

  The Anglican Church faced the Age of Reason and Deism with
  Latitudinarianism.166          Though standing in opposition to those two
  developments, the Latitudinarians, as their name implies, embraced
  tolerance as their major theme.167 This theme in no way compromised
  their commitment to God and the Christian faith. The Latitudinarians
  believed that God holds an absolute claim on humanity and that all our
  powers depend upon his will.168 Christianity is to govern all of life.169
  Education for moral and spiritual reformation is especially important.170
  With these tenets Latitudinarianism was a major force in seventeenth
  century Anglicanism.
          It also was in important respects a movement in continuity with
  the work of Hooker, a continuity that would support the work of
  Blackstone. The Latitudinarians in their tolerance relied upon Hooker’s
  emphasis on things indifferent.171                    They also shared Hooker’s
  endorsement of strong laws.172
          Beyond these particulars,             the most important inﬂuence of
  Latitudinarianism to be seen in the Commentaries, and well within the
  trajectory Hooker set for the Anglican Church, was its appreciation for
  reason as a guide in human affairs.               Latitudinarian thought was well
166
     See W. M. SPELLMAN, THE LATITUDINARIANS AND THE CHURCH OF ENGLAND 1600-1700 10-83
     (1993).
167
     See ERNEST CAMPELL MOSSNER, BISHOP BUTLER AND THE AGE OF REASON: A STUDY IN THE
     HISTORY OF THOUGHT (1936).
168
     See SPELLMAN, supra note 166, at 120.
169
     See id. at 7.
170
     See id. at 4, 61, 128.
 171
     See id. at 157.
172
     See id. at 70. Other Latitudinarian notions to ﬁnd their way into the Commentaries are the
     endorsement of strong civil government, id. at 122, and self-interest as sound motivation,
     see id. at 118-19, 122.




                                              347
                                                    University of Bologna Law Review
                                                                        [Vol.4:2 2019]
                                                          https://doi.org/10.6092/issn.2531-6133/10402



  suited to the development of science173 : it is no accident that Isaac
  Newton was an Anglican.174 The Latitudinarians understood that human
  reason did not survive the Fall unimpaired.175 At the same time, however,
  some power of human reason persists.176 Human reason under God is able
  to understand nature, itself existing under the Sovereign God.177 This
  human reason is not the reason of rationalism, but instead more like
  common sense.178          And just as reason is an aid to understanding the
  Bible,179 so is the Bible a necessary aid to the use of reason.180
  Latitudinarians favored reason and the philosophical explanation of
  reality,181 but more important to Blackstone’s jurisprudence was their
  view that reason was useful especially for discerning natural law.182
          One     who     could     be   viewed      as      the    leading       exponent         of
  Latitudinarianism in the next century, the century of Blackstone, is
  Bishop Joseph Butler.183 Butler published his most important work, The
  Analogy of Religion Natural and Revealed, in 1736 and it became hugely
  inﬂuential in the middle of the century during the height of Blackstone’s
  career and the writing of the Commentaries.184                      Relying on the same
  principles that served Hooker,185 Butler aimed to refute the deists on the
  grounds of natural theology.186               As Blackstone would argue,187 the
173
     See James R. Jacob & Margaret C. Jacob, The Anglican Origins of Modern Science: The
   Metaphysical Foundations of the Whig Constitution, 71 ISIS 251, 258 (1980); SPELLMAN, supra
   note 166, at 6-7.
174
     See Jacob & Jacob, supra note 173, at 254, 262, 265. The Anglican mix of authority from the
     Bible, reason, and the senses—a mix hospitable to science—is one of its distinctives. See
     id. at 256; Tumbleson, supra note 105, at 134-35, 139, 148, 151-53, 156.
175
     SPELLMAN, supra note 166, at 111.
176
     See id. at 74-77.
177
     See id. at 87-88, 160.
178
     See id. at 4.
179
     See id. at 156.
180
     See id. at 83-86.
 181
     See id. at 106-07.
182
     See id. at 8, 66, 76-77, 81-82. The association of reason with natural law is typically
     English. Helmholz, supra note 55, at 12, 21.
183
     See Conklin, supra note 23, at 213.
184
     See MOSSNER, supra note 167, at 178-87.
185
     See THORNTON, supra note 117, at 103.
186
     See BOORSTIN, supra note 1, at 15. The project of natural theology itself received impetus
     from Hooker. See Kirby, supra note 113, at 270-71. Butler also aligned himself with the
     empiricism of Locke and Newton. MOSSNER, supra note 167, at 82.
187
     See supra notes 24-27 and accompanying text.



                                              348
                                                     University of Bologna Law Review
                                                                         [Vol.4:2 2019]
                                                         https://doi.org/10.6092/issn.2531-6133/10402



  creature owes a duty to the creator, and design proves a designer.188
  Likewise, general laws govern nature,189 with the nature of things giving
  rise to right and wrong, thus determining God’s will.190 Humans are able
  to discover their duties through reason — more the reasonable dictate of
  God’s will than the deliverances of logic.191 Blackstone would also endorse
  Butler’s view of civil government as an agency of God’s government
  concerned with social consequences.192
          Two major aspects of Butler’s theology to lodge in the Commentaries
  command attention here. The ﬁrst is emphasis on experience. We have
  noted Butler’s emphasis on reason, that is on reasonableness more than
  cold logic.193 Nevertheless, humankind cannot by speculation judge what
  leads to human perfection or happiness.194 Hooker had held that the degree
  of certainty we attain is relative to the nature of things.195 Like him, Butler
  held that we should not expect to plumb the depths of all knowledge and
  understanding, but rather follow the light we do have.196
          That light largely is the product of experience. The laws by which
  God governs are known to us by reason along with experience.197                                 As
  science and medicine developed by progressive advances,198 so ethics
  depends upon empirical evidence and common sense, and morality itself
188
     See JOSEPH BUTLER, THE ANALOGY OF RELIGION NATURAL AND REVEALED 245 (J.M. Dent & Co.
   1906) (1736).
189
     See id. at 105.
190
     See id. at 243. So, for those designed for society God’s laws prescribe justice and charity.
     Id. at 245.
 191
     See MOSSNER, supra note 167, at 14. Butler did not suppose that all elements of moral
     government are clear to humans. Id. at 90. Mossner also discerns some sleight of hand in
     Butler’s treatment of the matter of law and will. Id. at 102.
192
     Compare 1 BLACKSTONE, supra note 23, at 45, 54, with BUTLER, supra note 188, at 37-38, 41,
     98.
193
     See supra text accompanying note 191. Again, this emphasis reminds one of Hooker,
     ATKINSON, supra note 106, at 13, as does Butler’s division of the precepts of religion into
     moral and positive according as the reasons for the precept are seen or not seen, MOSSNER,
     supra note 167, at 92, and the acknowledgement that reason needs support from God’s
     inspiration, id. at 123-24.
194
     See BUTLER, supra note 188, at xxx.
195
     See ATKINSON, supra note 106, at 91-92, 98.
196
     JOSEPH BUTLER, FIFTEEN SERMONS PREACHED AT THE ROLLS CHAPEL AND A DISSERTATION UPON
     THE NATURE OF VIRTUE 237-38 (G. Bell Sons 1914) (1726).
197
     See BUTLER, supra note 188, at 143.
198
     See id. at 152-53.




                                              349
                                                    University of Bologna Law Review
                                                                        [Vol.4:2 2019]
                                                        https://doi.org/10.6092/issn.2531-6133/10402



  is a science of human action with attention paid to the facts of results.199
  God uses our experience to teach us duties.200 As with physics, so with
  human laws, experiment, inductive method, and judgment based upon
  the generality of observations are sound guides.201 Experience, resting
  upon God’s governance by punishment and reward,202 is a surer guide
  than abstract reason.203
          Blackstone suited the Commentaries to his readers, enlightened
  eighteenth-century Anglicans.204 He himself was committed to English
  enlightenment        principles205      and     Butler’s      welcome         to    progress,
  knowledge, and experience206 suited Blackstone well.                          Like Edmund
  Burke,207 Blackstone embraced Latitudinarianism and the work of Joseph
  Butler.208 He subscribed to the test of probability rather than certainty,209
199
    See MOSSNER, supra note 167, at 105, 117.
200
    See id. at 96.
201
    See BUTLER, supra note 188, at xviii, xxx, 79.
202
    See id. at 25, 180.
203
    See id. at 104, 143-44, 148. As Blackstone would remark regarding the changing of human
    laws, see infra notes 272-78 and accompanying text, Butler observed that we hazard
    unknown effects by changing the regime God has instituted for his rule. See BUTLER, supra
    note 188, at 101, 106, 108-09. With the results yet to be experienced, we cannot assess the
    outcome of such a move.
204
    See Crane Brinton, Book Review, 55 HARV. L. REV. 703, 703 (1942) (reviewing The Mysterious
    Science of the Law: An Essay on Blackstone’s Commentaries (1941)).
205
    See PREST, supra note 1, at 308; Graham, supra note 77, at 152; Tim Stretton, Coverture and
    Unity of Person in Blackstone’s Commentaries, in BLACKSTONE AND HIS COMMENTARIES, supra
    note 14, at 111, 125.
206
    See BUTLER, supra note 188, at 162.
207
    See MOSSNER, supra note 167, at 189.
208
    See Conklin, supra note 23, at 213-15. Conklin points out especially the affinity in
    epistemology and the role of happiness.
209
    See Blackstone’s probabilism here, for example: “But this [move of the Restoration
    Parliament] was for the necessity of the thing, which supersedes all law; for if they had
    not so met, it was morally impossible that the kingdom should have been settled in peace.”
    1 BLACKSTONE, supra note 23, at 147 (emphasis added). And here: “So that it is morally
    impossible to trace out, with any degree of accuracy, when the several mutations of the
    common law were made . . . .” 4 id. at 402 (ﬁrst emphasis added). The probabilism in
    this use of “morally impossible” ﬁnds an explanation from Blackstone’s contemporary,
    Samuel Johnson:
                   He thus deﬁned the difference between physical and moral truth:
                “Physical truth is, when you tell a thing as it actually is. Moral truth
                is, when you tell a thing sincerely and precisely as it appears to you.
                I say such a one walked across the street; if he really did so, I told a
                physical truth. If I thought so, though I should have been mistaken, I
                told a moral truth.”
    JAMES BOSWELL, THE LIFE OF SAMUEL JOHNSON 510-11 (C.P. Chadsey ed., Doubleday 1946)
    (1791).




                                              350
                                                      University of Bologna Law Review
                                                                          [Vol.4:2 2019]
                                                          https://doi.org/10.6092/issn.2531-6133/10402



  reasonableness as a touchstone of truth,210 and common sense coupled
  with experience.211 The large role in the Commentaries played by history
  may be ascribed, at least in part, to this regard for experience.212
          A second aspect of Butler’s theology that helped shape the
  Commentaries is the importance and function of human happiness.213 God
  governs mankind by reward, by the consequences of human actions.214
  Therefore, true happiness directs us towards doing God’s will.215 This
  happiness (supplemented by conscience216 ) deﬁes certain demonstration,
  but does make itself known with “practical proof.”217 To pursue virtue is
  to pursue happiness, and to pursue happiness is to pursue virtue.218
          Again, Blackstone concurs with Butler in his argument that God has
  ordered human affairs so that we need only pursue our own happiness to
  ﬁnd ourselves pursuing the law of nature that God has established for the
  right ordering of our affairs.219 For both Butler and Blackstone, reasonable
  self-love motivates us to adhere to God’s rule.220 So here too, Blackstone
  shows himself in the Commentaries aligning with the work of Butler as he
  aligns with other elements of the Anglican tradition.
          Blackstone had every reason to write the Commentaries from an
  Anglican point of view. It was good rhetoric for reaching his intended
210
    See BOORSTIN, supra note 1, at 23.
211
    See id. 55, 117-19. In these last commitments, Blackstone owed a debt also to Locke, id. at
    31, and the Common Sense school of philosophy, Conklin, supra note 23, at 216-17.
212
    See BOORSTIN, supra note 1, at 31-40, 55.
213
    Blackstone’s crucial use of happiness has been noted already in these pages. See supra
    notes 29-31 and accompanying text.
214
    See BUTLER, supra note 188, at 93, 238.
215
    See id. at 26, 236, 271.
216
    See BUTLER, supra note 196, at 68.
217
    MOSSNER, supra note 167, at 100. So probabilism is the method for pursuing happiness. See
    BUTLER, supra note 188, at xxv-xxvii.
218
    See Butler, supra note 188, at xxx, 36, 56, 61, 72, 93, 112, 268-70; BUTLER, supra note 196, at
    240. At the same time, God has given us some power over the happiness of others. BUTLER,
    supra note 188, at 42.
219
    See supra notes 29-31 and accompanying text; see also BOORSTIN, supra note 1, at 92;
    Alschuler, supra note 1, at 52.
220
    Compare BUTLER, supra note 196, at 68 (for Butler) with BOORSTIN, supra note 1, at 53 (for
    Blackstone). Conklin also ﬁnds that the pursuit of happiness is a linchpin for Blackstone,
    Conklin, supra note 23, at 224, 260, but she places his approach also within the Common
    Sense school, id. at 215-17. She attributes the phrase “the pursuit of happiness” in the
    Declaration of Independence to Blackstone. Id. at 200-02. But see Craig A. Stern & Gregory
    M. Jones, The Coherence of Natural Inalienable Rights, 76 UMKC L. REV. 939, 973-74 (2008).



                                                351
                                                     University of Bologna Law Review
                                                                         [Vol.4:2 2019]
                                                         https://doi.org/10.6092/issn.2531-6133/10402



  audience. It was true to his own convictions. We have seen thus far
  particular elements of the Commentaries signaling Blackstone’s Anglican
  approach. The main topic of this article, however, is his use of natural
  law—the concept and body of transcendent law—and the degree to which
  Blackstone’s Anglican understanding shapes this use.




          5. THE ANGLICAN BLACKSTONE AND THE NATURAL LAW

  As we have seen, Blackstone’s Commentaries bears the impress of its
  author’s Anglican faith. This impress shapes the appearance of natural
  law in the Commentaries, but by no means minimizes the role of natural
  law. To be sure, if using natural law means using it as Aquinas used it,
  Blackstone does not use natural law.221                 In fact, Anglican Blackstone
  lodges criticism at the scholastic tradition.222 But the use of natural law, a
  transcendent norm that guides human law, may transcend Aquinas’s use.
  In fact, the Commentaries more than anything takes the common law back
  to natural law, to ﬁrst principles,223 portraying the common law as
  blended with the natural law into one body.224 Its use of natural law is not
221
    While Blackstone does subscribe to the notion that natural law bounds the validity of
    human law, see supra text accompanying notes 32, 41; Posner, supra note 45, at 605, his
    use of natural law embraces far more, Finnis, supra note 24, at 183.
222
    See BOORSTIN, supra note 1, at 78; see also 2 BLACKSTONE, supra note 23, at 58 (describing
    the “ingenuity” of the middle ages as one “which perplexed all theology with the subtilty
    of scholastic disquisitions, and bewildered philosophy in the mazes of metaphysical
    jargon”); 4 id. at 410-11 (bemoaning the scholastic intricacies of Norman jurisprudence).
    Blackstone’s approach avoided the complexities of the scholastics. See Conklin, supra
    note 23, at 224. At the same time, while some note Blackstone’s modern emphasis on
    individual rights rather than on the classic common good, Finnis, supra note 24, at 181,
    and on peace as the end of civil society, BOORSTIN, supra note 1, at 179, and his “social”
    rather than philosophical consistency, Brinton, supra note 204, at 704, Blackstone does
    hold that society has a “moral purpose,” BOORSTIN, supra note 1, at 190, and shares also
    with Aquinas, see, e.g., 2 AQUINAS, supra note 27, at 213-14 (I-II, 92, 1), 232-33 (I-II, 96,
    3), the belief that law has moral content, teaches right and wrong, and improves human
    beings. See 1 BLACKSTONE, supra note 23, at 27, 45; 2 id. at 8; 3 id. at 162.
223
    See Conklin, supra note 23, at 211.
224
    Cf. Helmholz, supra note 55, at 21-22 (noting that English lawyers traditionally assumed
    that the common law and natural law “complemented each other”). But see Allen, supra
    note 21, at 196-98 (questioning the impact of natural law upon the Commentaries).




                                               352
                                                     University of Bologna Law Review
                                                                         [Vol.4:2 2019]
                                                         https://doi.org/10.6092/issn.2531-6133/10402



  muddled or unnecessary.225 After its conventional introductory treatment
  of natural law226 it frequently adverts to natural law principles when
  discussing the common law itself.227 Blackstone held that the natural law
  was the only sure guide to English law.228 Desiring not just to understand
  but also to admire,229 he sought beauty in the law, a beauty lent to English
  law by God’s design in natural law.230 The Commentaries continuously
  pursues this project and shapes its discussion from principles,231 being
  structured to align positive law with natural law232 and organized to
  demonstrate order in the English law from divine simplicity.233 While it
  melded law and equity together into one overall, integral system,234 it
  treated not the whole of the common law, but rather only what was
  susceptible of rational appreciation.235
          The integral connection in the Commentaries between English law
  and natural law constituted English law a handbook on natural law. As the
  spirit of law is a product of natural law,236 so natural law can be seen from
  the laws of England.237 At the same time, English common law contained
  a strong cultural component,238 adapted as it was “to the genius of the
225
    See LIEBERMAN, supra note 15, at 38-55.
226
    See Lobban, supra note 50, at 323.
227
    See LIEBERMAN, supra note 15, at 37; Finnis, supra note 24, at 175-76 (listing scores of
    references in note 94).
228
    See BOORSTIN, supra note 1, at 142.
229
    See id. at 30.
230
    See BOORSTIN, supra note 1, at 85. In like manner, Maine has remarked the importance of
    simplicity, harmony, and elegance as guides to Roman jurisconsults. MAINE, supra note
    24, at 65.
231
    See BOORSTIN, supra note 1, at 28.
232
    See Finnis, supra note 24, at 176.
233
    See BOORSTIN, supra note 1, at 92.
234
    See id. at 98.
235
    See Lobban, supra note 50, at 332-33. Emily Kadens has emphasized that Blackstone’s
    approach to the law differed in its systemization and generalization from that of the
    practitioner. Kadens, supra note 5, at 1559; see also id. 1563 (stating that the Commentaries
    was said to depart from the common law as practiced), 1575 (stating that even in practice
    Blackstone acted as if legal questions held one correct answer without doubt), 1605
    (stating that Blackstone even as judge knew the law, but not the “legal mind”).
236
    See BOORSTIN, supra note 1, at 58.
237
    See id. at 53, 60. Following Hale, Blackstone in the Commentaries treats the general
    phenomenon of law under the guise of the law of England as an example historically
    considered. Id. at 35-36. The experience of generations of wise men had rendered the
    common law the nearest human approach to the natural law. KIRK, supra note 106, at 371.
238
    See Watson, supra note 23, at 795.




                                               353
                                                      University of Bologna Law Review
                                                                          [Vol.4:2 2019]
                                                          https://doi.org/10.6092/issn.2531-6133/10402



  English nation.”239 Taking liberty as the signal English virtue led, as we
  shall see, only to emphasizing all the more the importance of natural law
  to the laws of England.240
          The Anglican context lent Blackstone’s natural law an empirical
  cast akin to Sir Isaac Newton’s physics.241 His approach was descriptive,
  not deductive.242 Blackstone was not unaware of the dangers of arguing
  from particular to general,243 but he nonetheless endorsed the scientiﬁc
  approach.244       The Commentaries is a quest for reasonableness, for the
  rational principles — the natural law — undergirding the positive
  particulars of English common law.245 Because law is a rational science,
  natural law suffuses the text.246 In this commitment to empirical science
  for ﬂeshing out the natural law embedded in English law, Blackstone
  treats law much as Butler treated theology.
          Hooker more than Butler animates Blackstone’s emphasis on
  history, but that emphasis likewise demonstrates an Anglican approach to
  natural law.247       It is in progressive human experience that Providence
  gradually works the natural law into human law.248 As with Burke’s view,
  natural law makes itself known in history.249                     But history is no sure
239
    1 BLACKSTONE, supra note 23, at 17; cf. 4 Id. at 256 (rooting a legal principle in “the genius
    and spirit of the law of England”).
240
    See infra notes 306-08 and accompanying text. Blackstone emphasized English civil
    freedom, LIEBERMAN, supra note 15, at 39-40, and liberty, BOORSTIN, supra note 1, at 154,
    giving rights a central position in his analysis, id. at 162; see also Allen, supra note 21, at
    196-97.
241
    See supra notes 173-74 and accompanying text; Berman & Reid, supra note 50, at 498-500,
    511.
242
    See Lobban, supra note 50, at 333.
243
    See 1 BLACKSTONE, supra note 23, at 59.
244
    See id. at 34; 2 id. at 2.
245
    See BOORSTIN, supra note 1, at 11-12, 20-23.
246
    See LIEBERMAN, supra note 15, at 37. Blackstone’s dedication to the scientiﬁc approach
    to the common law did not rule out what Boorstin calls “mystery” when needed to
    supplement science, much as Edmund Burke called upon mystery in aid of his arguments.
    BOORSTIN, supra note 1, at 25. Similarly, the Commentaries has been tagged as “formalistic,
    in the sense of describing the nominal power relationships, while failing to acknowledge
    what he and other lawyers of his day knew to be the actual division of power and
    inﬂuence.” Langbein, supra note 14, at 70.
247
    Hooker’s use of history is treated above at notes 138 to 145.
248
    See BOORSTIN, supra note 1, at 62-64, 78.
249
    See id. at 72-73; RICHARD TUCK, NATURAL RIGHTS THEORIES 84 (1979). One is reminded
    also of Maine’s characterization of the Roman law as aspiring to an “indeﬁnite
    approximation” to perfect law. See MAINE, supra note 24, at 63. Here again, Blackstone’s
    roots in Roman law complement his Anglicanism.


                                                354
                                                    University of Bologna Law Review
                                                                        [Vol.4:2 2019]
                                                        https://doi.org/10.6092/issn.2531-6133/10402



  guarantee that the human law has taken on its shape from natural law.
  Blackstone held that awkward complexity too comes from history,250 and
  history must bow to reason if found to contradict it.251                      Nevertheless,
  Blackstone held history both descriptive of the law and prescriptive,252
  obviating the need to distinguish “historical explanation” from “moral
  justiﬁcation.”253      The providential, historical development of the law
  enabled Blackstone to portray law as possessing both the appropriate
  degree of ﬁxity and the appropriate degree of change. On the one hand,
  common law and justice itself are ﬁxed and uniform.254 On the other
  hand, natural law leads to growth and change in the law,255 and it is
  susceptible of diverse interpretations.256                   Far from his being an
  uncompromising apologist for the status quo,257 Blackstone’s very
  commitment to history also committed him to progress.258 Correction
  and improvement — in continuity with historical development — are
  welcome.259 Accordingly, the Commentaries ends with this charge:

           We have taken occasion to admire at every turn the noble

           monuments of antient simplicity, and the more curious

           reﬁnements of modern art. Nor have it’s [sic; i.e., that of the

           body of English law] faults been concealed from view; for faults
250
    See BOORSTIN, supra note 1, at 104.
251
    See LIEBERMAN, supra note 15, at 45. Boorstin writes that Blackstone employs a ﬁction that
    English law expresses both “the perfection of reason” and “the fullness of experience,”
    BOORSTIN, supra note 1, at 135, but Blackstone asserts that legal customs, while often
    rooted in natural law, are not always reasonable and so may stand in need of correction.
    Compare, e.g., 1 BLACKSTONE, supra note 23, at 251 (suggesting that a custom “seems
    dictated by nature herself”) with id. at 280 (observing how an ancient rule of common law
    “was consonant neither to reason nor humanity” and so endorsing its later alteration).
252
    See BOORSTIN, supra note 1, at 63.
253
    LIEBERMAN, supra note 15, at 49. This approach was typical of English eighteenth-century
    treatment of the law. Berman & Reid, supra note 50, at 438.
254
    See 1 BLACKSTONE, supra note 23, at 137 (asserting that the law of England “is permanent,
    ﬁxed, and unchangeable, unless by authority of parliament”); 3 id. at 429 (observing
    that “truth and justice are always uniform”). Langbein suggests that Blackstone himself
    viewed the ﬁxed and settled character of the law as a myth. Langbein, supra note 14, at 68.
255
    See BOORSTIN, supra note 1, at 57.
256
    See 1 BLACKSTONE, supra note 23, at 226 (opining that the terms of the theoretical social
    contract are “only deducible by reason and the rules of natural law; in which deduction
    different understandings might very considerably differ”).
257
    See PREST, supra note 1, at 307-08. Elsewhere Prest notes Blackstone’s Tory opposition to
    the Whig establishment. Prest, supra note 58, at 154.
258
    See Alschuler, supra note 1, at 37-38.
259
    See BOORSTIN, supra note 1, at 81; LIEBERMAN, supra note 15, at 43-44.


                                              355
                                                    University of Bologna Law Review
                                                                        [Vol.4:2 2019]
                                                        https://doi.org/10.6092/issn.2531-6133/10402



            it has, lest we should be tempted to think it of more than

            human structure: defects, chieﬂy arising from the decays of

            time, or the rage of unskilful [sic] improvements in later ages.

            To sustain, to repair, to beautify this noble pile, is a charge

            intrusted principally to the nobility, and such gentlemen of the

            kingdom, as are 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.260

  As the common law embodies and expresses the natural law, it is to be
  reformed when lapses from that transcendent standard appear.
  Blackstone      calls    English     law    of    “human       structure.”             Though
  eighteenth-century English lawyers may have called their law “the
  perfection of reason,”261 Blackstone acknowledges it to be a somewhat
  faulty human application of natural law,262 sometimes more honored in
  the breach.263
          One means of developing the law with both Anglican continuity
  and an eye to the principles of natural law is by legal ﬁction.264
  Blackstone held that legal ﬁctions permit the law to do justice in changed
  circumstances,265         as   in   bypassing       Norman        errors.266           In    the
  Commentaries, ﬁctions, along with history, ground the law.267                             Legal
260
    4 BLACKSTONE, supra note 23, at 436. Other passages urging modiﬁcation of English law
    include id. at 3-5, 88-89, 165-66, 175, 239, 278-79, 349, 353, 381-82, and 409.
261
    MAINE, supra note 24, at 64.
262
    See BOORSTIN, supra note 1, at 111, 145.
263
    See id. at 146-50.
264
    The classic discussion is to be found in MAINE, supra note 24, at 17-36.
265
    See LIEBERMAN, supra note 15, at 47.
266
    See BOORSTIN, supra note 1, at 69.
267
    Allen, supra note 21, at 202-05. Allen would have this use of ﬁctions establish that the
    Commentaries sees the law as a fabrication that does not reﬂect the way things really are.
    Id. at 205. Fabrication the law may be, see supra text accompanying note 260, but the
    point of ﬁctions is to shape this fabric more accurately to reﬂect the way things really are
    notwithstanding formulations of the positive law that otherwise would depart from the
    way things really are. After all, that is the driving force behind ﬁctions. See MAINE, supra
    note 24, at 17-36.


                                              356
                                                    University of Bologna Law Review
                                                                        [Vol.4:2 2019]
                                                        https://doi.org/10.6092/issn.2531-6133/10402



  ﬁctions enable the common law to embody the principles of the natural
  law.268
          Of course, statutes also might help the law embody the principles
  of natural law.269 To some degree, the Commentaries portrays statutes as
  declaring the natural law,270 lending necessary correction to the common
  law while simultaneously rooted in the common law.271                           But statutes
  present a danger:

                  THE mischiefs that have arisen to the public from

            inconsiderate alterations in our laws, are too obvious to be

            called in question; and how far they have been owing to the

            defective education of our senators, is a point well worthy of

            the public attention. The common law of England has fared like

            other venerable ediﬁces of antiquity,                which rash and

            unexperienced workmen have ventured to new-dress and

            reﬁne, with all the rage of modern improvement.                     Hence

            frequently it’s [sic] symmetry has been destroyed, it’s [sic]

            proportions distorted,       and it’s [sic] majestic simplicity

            exchanged       for   specious    embellishments         and     fantastic

            novelties.272

  Architecture was important to Blackstone.273 As a “rule-bound art,” it
  attracted his keen interest.274 He used architectural metaphors in the
  Commentaries,275 and elsewhere portrayed the old common law as a
  well-designed building.276             Damning accusation it was, then, for
268
    See, e.g., Stretton, supra note 205, at 119-20, 122, 126-27 (casting Blackstone’s (?) “one
    person” theory of marriage as a legal ﬁction to serve his “scientiﬁc organizing principle”
    though, according to Stretton, not directly dictated by natural law).
269
    Again, the classic discussion is to be found in MAINE, supra note 24, at 17-36.
270
    See Lobban, supra note 50, at 325.
271
    See 1 BLACKSTONE, supra note 23, at 86, 353; 3 Id. at 328, 410; 4 Id. at 431-33. Blackstone
    presupposed and endorsed ameliorative legislation in his charge quoted above at note 260.
272
    1 BLACKSTONE, supra note 23, at 10.
273
    See Conklin, supra note 23, at 220-24.
274
    Prest, supra note 3, at 115-18.
275
    See id. at 118-21.




                                              357
                                                     University of Bologna Law Review
                                                                         [Vol.4:2 2019]
                                                         https://doi.org/10.6092/issn.2531-6133/10402



  Blackstone to picture some statutes as monstrous add-ons.277 But the
  fault of such statutes is that they are in a sense ahistorical — they reﬂect
  “visionary schemes” and “have not the foundation of the common law to
  build on.”278 Statutes that bring the law closer to the natural law will ﬁnd
  their basis not in imagined exploits but rather in the principles already to
  be found in the common law itself, the generally trustworthy, if
  imperfect, presentation of the natural law.
          Blackstone’s commitment to the common law as holding within it
  immanent natural law reﬂects both the Roman law and also the Roman
  notion that the jus gentium, the law of nations, is a sound guide to the
  content of the natural law.279 While the common law may embody the
  natural law more perfectly than do other systems of human law, those
  other systems may shed light on the natural law to be found within the
  common law. Blackstone subscribed to the uniformity of human nature
  and God’s purpose, to the consequent uniformity of natural law, and to
  the expectation that the laws of all nations, past and present, would
  reﬂect these truths.280 Comparative law illuminates the universality of
  English legal principles, the deposit of natural law.281 The Age of Reason
  looked for the natural law in the jus gentium,282 and the Commentaries
  looks to other legal systems to help ﬁnd reason in the English law.283 In
  the spirit of Hooker, Blackstone found natural law principles behind the
  diversity of laws even on aspects indifferent under the natural law. And in
  the spirit of Butler, he found marks of reasonableness in the similarity of
  English law to the law of other nations.                       (The dominant role of
  reasonableness in the Commentaries occupies our attention soon.)
276
    See id. at 104.
277
    See Cook, supra note 12, at 175-76 (noting Blackstone’s preference for the common law
    over statutes); Kadens, supra note 5, at 1561 (discussing Blackstone’s imagery of the law
    as a house deformed by statutes).
278
    1 BLACKSTONE, supra note 23, at 353.
279
    See supra text accompanying notes 63-65; MAINE, supra note 24, at 41-43.
280
    See BOORSTIN, supra note 1, at 47.
281
    See generally Alschuler, supra note 1, at 27; McKnight, supra note 2, at 404.
282
    See MOSSNER, supra note 167, at 26.
283
    See BOORSTIN, supra note 1, at 43. Blackstone reﬂects upon comparative law several times
    in the Commentaries. See 1 BLACKSTONE, supra note 23, at 5, 21, 35-36; 2 id. at 258; 3 id. at
    108; 4 id. at 181, 237, 241.


                                               358
                                                   University of Bologna Law Review
                                                                       [Vol.4:2 2019]
                                                       https://doi.org/10.6092/issn.2531-6133/10402



  The Bible itself often found its way into the Commentaries under the
  aspect of comparative law — again, this was similar to the approach of
  Hooker.284      Blackstone kept the Bible close to him while writing the
  Commentaries,285 and he considered the divine law to be found therein the
  authoritative source on what he called the “law of nature”286 and on the
  development of legal rules and doctrine.287 Most typically, however, he
  used the Bible as a source of comparative law, a source presenting a body
  of law perfectly devised to embrace the natural law for a speciﬁc people at
  a speciﬁc time.288 Natural law then was to be found within biblical law
  and not to be identiﬁed with it in its particulars.289
          In these diverse ways — from ﬁnding natural law embedded within
  the common law, to the use of science, history, and comparative law —
  the Commentaries takes account of natural law in its treatment of English
  law, all in keeping with an Anglican understanding of natural law and its
  application to human affairs. But the most distinctively Anglican feature
  of how the Commentaries treats the natural law has escaped for the most
  part our attention until now. That feature is the testing and justiﬁcation
  of the law of England by its reasonableness. Hooker, and especially Butler
  and the Latitudinarians, lent to Anglican theology its distinct emphasis
  on reasonableness. It is in this aspect of his jurisprudence that Blackstone
  most shows himself an Anglican.
          For Blackstone, natural law does not dictate the content of most
  human law.290 It supplies a few core principles, and those few do not
284
    See supra notes 116-18 and accompanying text.
285
    See Cook, supra note 12, at 175.
286
    See supra text accompanying note 39. Again, this paper uses the term “natural law” for
    what Blackstone usually called “the law of nature.” He himself deﬁned “natural law” to
    be human theorizing about the law of nature, see id., though his actual usage seems not to
    be uniform on this point, see supra note 7.
287
    See Wilfrid Prest, William Blackstone’s Anglicanism, in GREAT CHRISTIAN JURISTS IN ENGLISH
    HISTORY 213, 231-32 (Mark Hill & R. H. Helmholz eds., 2017).
288
    See DAVIES, supra note 151, at 16, 21.
289
    In keeping with its comparatist approach, the Commentaries with seeming approval notes
    within or alongside the common law itself a diversity of sources and even of rules of law.
    See 1 BLACKSTONE, supra note 23, at 63-64, 74-78; 4 Id. at 403.




                                             359
                                                     University of Bologna Law Review
                                                                         [Vol.4:2 2019]
                                                         https://doi.org/10.6092/issn.2531-6133/10402



  fundamentally overbear human law.291 Furthermore, the state of civil
  society itself modiﬁes primordial natural law, introducing a context
  where natural law principles take on a different cast or a subservient
  role.292 For Blackstone, the application of natural law is not so much a
  matter of tracing speciﬁc precepts in human law. Rather, it is more like
  the practice of Roman lawyers, ﬁnding reasonable and appropriate legal
  norms suited to the situation at hand — the nature of the thing. The
  Commentaries presents the common law as a “rational, integrated”
  system, but also consistently traces its reasonableness, the reasons
  behind its details.293
          The quest for life in accordance with nature, and therefore with
  reason, was a mark of the Age of Reason.294                      But Blackstone sought
  reasons for the law as a mark of God’s own perfection, to be discerned
  through human experience.295                  Blackstone derived his passion for
  “reasonableness” in the law, and the consequent searching out of reasons
  for the law, from his Anglican theology.296                       The very core of the
  Commentaries is this essential use of natural law, this examination of
  reasonableness in light of the way things are. Reasons for the law, reasons
  resting upon on fundamental principles, animate the Commentaries.297
290
    See Alschuler, supra note 1, at 2, 24-27.
291
    See id. at 26.
292
    See 1 BLACKSTONE, supra note 23, at 410, 423; 2 id. at 8-13, 258, 293; 3 id. at 145, 168, 208,
    327; 4 id. at 3, 9-12, 42, 375.
293
    Posner, supra note 45, at 579, 590. The Commentaries is so dedicated to this tracing of
    reasons that at least one commentator tags the reasons as “often shallow, formalistic,
    indeed sometimes plain dishonest.” Langbein, supra note 14, at 77.
294
    See MOSSNER, supra note 167, at 25.
295
    BOORSTIN, supra note 1, at 121.
296
    See Berman & Reid, supra note 50, at 502. Although reasonableness became a hallmark of
    Butler and the Latitudinarians, reasonableness ﬁgures in Hooker’s work also. See VOAK,
    supra note 118, at 137. Perhaps in some distinction from “reasonableness,” “reason” had
    longed served as a touchstone of English law. See NORMAN DOE, FUNDAMENTAL AUTHORITY
    IN LATE MEDIEVAL ENGLISH LAW 83, 106-31, 153, 176-77 (1990). Blackstone no doubt draws
    upon this tradition as well as upon post-Reformation Anglicanism.
297
    See Lobban, supra note 50, at 334; Posner, supra note 45, at 572. Posner discovers the
    maximization of welfare in Blackstone’s approach, Posner 573-74, much as Maine found
    “utilitarianism” in the Roman law, McKnight, supra note 2, at 406 n.67. Finnis notes
    that Blackstone in some respects bases even the human institution of rights upon reason.
    Finnis, supra note 24, at 166.




                                               360
                                                     University of Bologna Law Review
                                                                         [Vol.4:2 2019]
                                                         https://doi.org/10.6092/issn.2531-6133/10402



  Throughout the Commentaries, Blackstone weighs law against the standard
  of reasonableness.298 The weighing is not rigorous. Fallen humans cannot
  understand all by reason, and the reason for some law may now evade our
  discovery.299 It is enough that the law not be contrary to reason:300

            [W]hat is not reason is not law. Not that the particular reason

            of every rule in the law can at this distance of time be always

            precisely assigned; but it is sufficient that there be nothing in

            the rule ﬂatly contradictory to reason, and then the law will

            presume it to be well founded.301

  Most often, however, the Commentaries highlights the place of reason in
  the formulation of the law and supports the reasonableness of its rules.302
  Furthermore, the Commentaries endorses reasonableness in interpreting
  laws according to their equity, reason, and justice.303                          This overall
  emphasis on reasonableness in the law, seeking sound reasons for rules
  and for their proper application, largely shapes the Commentaries.304
          Blackstone thought human law most signiﬁcant on matters
  indifferent, taking full advantage of the Anglican tradition regarding such
  matters, an essential contribution of Hooker.305 But though “indifferent”
  may describe a matter not dictated by a precept of natural law, it does not
  describe a matter to be determined by human will undirected by reason.
  Support for this proposition derives from Blackstone’s theory of natural
  rights. We already have noticed the emphasis Blackstone placed upon
298
    Lobban describes this as supplying a natural law “external test of reasonableness of the
    law.” Lobban, supra note 50, at 333.
299
    See BOORSTIN, supra note 1, at 27.
300
    See id.
301
    1 BLACKSTONE, supra note 23, at 70 (footnote omitted); see also id. at 77-78, 91.
302
    See id. at 47, 146, 148, 150, 163, 165, 185-86, 211, 226-27, 238, 246, 280, 287, 411, 443,
    446, 449-50, 464; 2 id. at 4, 8, 10-15, 68, 128, 162, 210-11, 228, 230, 385, 390, 401, 411-
    12, 453-54, 486; 3 id. at 31, 158, 161, 176-77, 188, 219, 226, 241, 244, 271, 379-80, 385,
    430, 434; 4 id. at 14-16, 32, 51, 103, 105, 186, 216, 237, 248, 280, 364, 382-81, 409-12, 416,
    425, 428-29.
303
    See 1 id. at 61; 3 id. at 192, 207, 226, 392, 429; 4 id. at 423.
304
    This search for sound reasons is not for Blackstone an individual affair; he distrusted
    individual reason. See BOORSTIN, supra note 1, at 50, 103, 117; Posner, supra note 45, at
    603.
305
    See supra notes 147-56 and accompanying text.




                                               361
                                                         University of Bologna Law Review
                                                                             [Vol.4:2 2019]
                                                             https://doi.org/10.6092/issn.2531-6133/10402



  liberty as a mark of English culture.306 Liberty — personal freedom — is
  so important that only reasonable constraint upon it is licit.307 “[L]aws
  themselves, whether made with or without our consent, if they regulate
  and constrain our conduct in matters of mere indifference, without any
  good end in view, are laws destructive of our liberty.”308 Rights therefore
  play a fundamental role in the Commentaries, and help support the natural
  law test of reason even in matters indifferent according to the more
  limited reach of explicit natural law precepts.
           And Blackstone does make much of the notion of matters
  indifferent, a mark of Hooker’s theology and the Anglican tradition.309
  His frequent use of the test of reasonableness supplies a natural law
  standard in the absence of precise precepts themselves drawn from
  nature.310 In a sense then, the Commentaries presents most human law as
  prescribing rules for matters indifferent.311 In another sense, however,
  Blackstone’s insistence upon the reasonableness of human law supplies a
  standard and justiﬁcation much like that of the Roman law, a standard
  and justiﬁcation from natural law assuring that human law is suited to
  the reality of things.312
           The reality of things can become clouded by human artiﬁce, so the
  primitive state — and primitive law — offer a useful corrective.313 For
  Blackstone, Saxon law stood for law based upon reason, not authority,314
306
     See supra note 240 and accompanying text.
307
     Social contract theory plays a role in Blackstone’s development of natural law, see Finnis,
     supra note 24, at 178-79, and even property rights are contingent, developed in the context
     of society, see supra note 152 and accompanying text; Allen, supra note 21, at 197. Natural
     liberty yields to social convention, but only for good reasons.
308
     1 BLACKSTONE, supra note 23, at 122.
309
     See, e.g., id. at 54-55, 185; 2 id. at 2, 211, 491; 3 id. at 87; 4 id. at 238; see also supra notes
     147-56 and accompanying text.
310
     See Finnis, supra note 24, at 181; David Lemmings, Editor’s Introduction to Book I of 1
     BLACKSTONE, supra note 2, at xvii, xxxi. H.L.A. Hart has suggested that Blackstone’s
     presentation of natural law is expressly to provide gaps to be ﬁlled by human law settling
     matters indifferent, Hart, supra note 52, at 174, but Finnis has demonstrated the difficulty
     with Hart’s view. See Finnis, supra note 24, at 171-74.
 311
     See Lobban, supra note 50, at 324; McKnight, supra note 2, at 404-06.
312
     Again, it bears repeating that “the reality of things” speaks not only of mere physicality
     but also of the norms appropriate to the situation at hand. The reality of things holds as
     much ought as is. See supra notes 66-76 and accompanying text.
 313
     See BOORSTIN, supra note 1, at 65, 68.
314
     See Posner, supra note 45, at 604.



                                                  362
                                                     University of Bologna Law Review
                                                                         [Vol.4:2 2019]
                                                         https://doi.org/10.6092/issn.2531-6133/10402



  he himself esteeming primitive law the most rational and therefore most
  true to nature.315 The corruption of Saxon law by “Norman subtlety”316
  left it an ideal to be recovered by progress under the hand of
  Providence.317 The law is to conform to reason, and Saxon law points the
  way to reasonable law untainted by later human error.
          Likewise, Blackstone’s emphasis on the reasonableness of the law
  helps make sense of his theory of judging. A judge is “sworn to determine,
  not according to his own private judgment, but according to the known
  laws and customs of the land; not delegated to pronounce a new law, but
  to maintain and expound the old one.”318                   This declaratory theory of
  judging has come under wide-ranging attack,319 and some doubt has been
  cast on whether Blackstone himself really subscribed to it.320 Though
  judges even now may pay lip service to the theory,321 it may seem unlikely
  that the development of the common law and the decision of difficult
  questions proceed simply from the declaration of pre-existing principles
  and rules, and not from judicial invention.322 But the matter might be less
  puzzling if, rather than thinking that the theory entails some preexistent
  code of natural-law rules ready to ﬁll gaps in the previously declared
315
    See BOORSTIN, supra note 1, at 70.
316
    Id. at 69.
317
    See id. at 83-84; McKnight, supra note 2, at 403; Posner, supra note 45, at 583; cf. MAINE,
    supra note 24, at 60 (noting that Roman lawyers respected the natural law within their own
    law for its “descent from the aboriginal reign of nature”). Presumably, Blackstone melds
    his endorsement of both Saxon primitivism and historical development in the notion of
    sound development upon Saxon principle.
318
    1 BLACKSTONE, supra note 23, at 69; see also 3 id. at 327 (“For though in many other
    countries every thing is left in the breast of the judge to determine, yet with us he is only
    to declare and pronounce, not to make or new-model, the law”). This understanding of
    the work of the judge is in keeping with Blackstone’s view of the use of reason in law to
    discover, not to invent. See BOORSTIN, supra note 1, at 51, 123. So law apparently created by
    human beings has also a divine quality. Id. at 59.
319
    See, e.g., JOHN CHIPMAN GRAY, THE NATURE AND SOURCES OF THE LAW 59-64 (David Campbell
    & Philip Thomas eds., Dartmouth Publ’g 1997) (1921); William S. Brewbaker III, Found
    Law, Made Law and Creation: Reconsidering Blackstone’s Declaratory Theory, 22 J.L. &
    RELIGION 255 (2006).
320
    See Alschuler, supra note 1, at 4, 37, 42.
321
    See, e.g., Frankland & Moore v. Regina [1987] 1 AC 576, 585, 594 (PC) (appeals taken from
    Isle of Man).
322
    At the same time, however, Helmholz has noted the traditional role for natural law in
    adjudging cases, Helmholz, supra note 55, at 18, and one may wonder how the rule of law
    could be respected were judges to invent rules to apply to cases before them but arising
    from facts long past. See STEVEN D. SMITH, LAW’S QUANDARY 61-64 (2004).



                                               363
                                                  University of Bologna Law Review
                                                                      [Vol.4:2 2019]
                                                     https://doi.org/10.6092/issn.2531-6133/10402



  common law, one could see instead that the question in any case is
  governed either by principles marked in precedent or by whichever of the
  rules proposed by the parties is the more reasonable in the light of
  precedent and the facts of the instant case.323 The judicial resolution of
  otherwise uncertain questions of law demands the application of reason
  and not ex post legislative will.
         As we have seen, Blackstone does take natural law seriously, but in
  an Anglican sense. The common law reﬂects the natural law, understood
  as the rule of reasonableness, a norm that aligns the law with the realities
  of the situation at hand, much as the Roman law is celebrated for doing so
  well. That is the natural law as the Commentaries most often applies it.




         6. CONCLUSION

            After the spread of the Benthamite positivism, the sense of the

           natural law enterprise was forgotten and (despite the eclipse of

           Bentham’s epistemology) it has remained usual to believe that

           the heart of any theory of natural law is, not the problem of the

           varying derivation of positive from natural law, but the thesis

           that positive law is “for all purposes” void if it contradicts

           natural law.    Thus Blackstone’s introductory discourse and

           deﬁnition of municipal law have standardly been interpreted

           on the assumption that any discussion of the relation between

           natural and positive law must be headed for an assertion or

           denial of that crude slogan, lex iniusta non est lex.324
323
    Apparently, on the bench Blackstone himself adhered to the declaratory theory and
    faithfully applied precedent. See Kadens, supra note 5, at 1556-58, 1578, 1580, 1583,
    1586, 1590, 1598, 1600-01. That Blackstone does not subscribe to judicial review, see 1
    BLACKSTONE, supra note 23, at 91; Helmholz, supra note 55, at 14, in no way compromises
    his commitment to natural law. Finnis, supra note 24, at 169-70.
324
    Finnis, supra note 24, at 182-83 (footnote omitted).




                                            364
                                                    University of Bologna Law Review
                                                                        [Vol.4:2 2019]
                                                        https://doi.org/10.6092/issn.2531-6133/10402



  Readers of the Commentaries committed to a narrow understanding of
  natural law — often so committed only to reject the concept of natural law
  altogether — ﬁnd Blackstone at best an epigone of natural law thinkers.
  He pays his natural-law lip service and then goes about his merry (and
  disguised) positivist way.325 Ignoring the relation of law to morals as well
  as historical normativity,326 we lack eyes to see Blackstone’s use of
  natural law in explaining, justifying, and criticizing English law.
          At the same time, how strange to think that human law somehow
  exists apart from reasons for its existence, reasons that connect it to the
  world it is to govern. Holmes supplies such reasons.327 Posner supplies
  such reasons.328 Blackstone does too. His reasons, his general recursion
  to reasonableness, is not simply a platitudinous reference. Within his
  Anglican context, reason and reasonableness are notes of God’s order and
  providence. They are notes of natural law.
          The concept of law without values is incoherent. The “reason” and
  “reasonableness” peppering the Commentaries are meant to supply the
  link between the laws of England and the values that developed and
  undergird them. Blackstone’s Anglican approach to systematizing and
  explaining English law — the systematizing and explaining that made his
  Commentaries such a success — renders this link a natural-law
  enterprise.329 And this enterprise should strike lawyers, and especially
  law students, as something familiar. They may not share Blackstone’s
  theological commitments, but when they strive to make sense of the rules
  of law, to see the rules as reasonable, to ﬁnd reasons for the rules, they
325
    See Alschuler, supra note 1, at 54; cf. Allen, supra note 21, at 198 (stating that “the
    Commentaries is a checkerboard of natural law and positivist perspectives”).
326
    See Berman & Reid, supra note 50, at 521.
327
    See OLIVER WENDELL HOLMES, JR., THE COMMON LAW (1881).
328
    See RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW (9th ed. 2014).
329
    This approach bears a resemblance to the natural law of Roman law, “smuggling” into
    the law values under the guise of a merely “technological” approach. See D’ENTRÈVES,supra
    note 61, at 151. Also, Lon Fuller’s explanation of the development of the common law case-
    by-case comes to mind: he described each case presenting to the court the opportunity to
    discern the necessary implications of the enterprise the law at issue is to govern. See Lon
    L. Fuller, The Forms and Limits of Adjudication, 92 HARV. L. REV. 353, 357-77 (1978).




                                              365
                                        University of Bologna Law Review
                                                            [Vol.4:2 2019]
                                           https://doi.org/10.6092/issn.2531-6133/10402



follow a course not unlike the course Blackstone famously set for his
celebrated Commentaries, a course marked by natural law.




                                  366
