Thursday, August 11, 2011

SHOULD WE ABANDON WILLIAM BLACKSTONE

Several foundational principles are expressed in both the Judeo-Christian worldview and Blackstone’s Commentaries. These principles, summarized below, reveal the extent to which American law has repudiated Blackstone.

A. There are different types of law in the universe. Blackstone’s classification of law into six types is foundational to the rest of his philosophy and is consistent with the Judeo-Christian system of law:

1. Law as the order of the universe. “Thus 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. When he put the matter into motion, He established certain laws of motion, to which all movable bodies must conform . . . .”

2. Law as a rule of human action. “. . . the precepts by which man, the noblest of all sublunary beings, a creature endowed with both reason and free will, is commanded to make use of those faculties in the general regulation of his behavior.”

3. Law of nature. “These are the eternal, immutable laws of good and evil, to which the Creator Himself in all His dispensations conforms; and which He has enabled human reason to discover, so far as they are necessary for the conduct of human actions.”

4. Revealed law. “The doctrines . . . delivered [by an immediate and direct revelation] we call the revealed or divine law, and they are to be found only in the Holy Scriptures . . . . 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.”

5. Law of nations. [A]s it is impossible for the whole race of mankind to be united in one great society, they must necessarily divide into many . . . . [the regulation of their interaction] is the law of nations . . . [it] depends entirely upon the rules of natural law, or upon mutual compacts, treaties, leagues, and agreements . . . .”

6. Municipal law. “[This is] a rule of civil conduct, prescribed by the supreme power in a state, commanding what is right and prohibiting what is wrong. But no human authority can act without limits.”

B. God is the Creator of the universe, man, the very concept of law, and several universal laws; and his original Creation was ex nihilo (“out of nothing”). Blackstone was certainly not an evolutionist! But the evolutionistic fervor of later legal scholars was a major force in America’s abandonment of Judeo-Christian/Blackstonian jurisprudence in the Twentieth Century.

C. God has built into the universe fundamental laws that are fixed, immutable, and must be obeyed.

D. Man is a dependent creature who is not to disobey God’s fixed laws but is given free will and reason to discover and choose his actions within the limits of God’s laws.

E. Man’s reason is corrupt and cannot, by itself, discover and apply God’s law.

F. God is not only the Creator, but a Being of infinite power, wisdom, and goodness.

G. God created man and His fundamental laws in such a way that man can be happy only when he is obeying God’s law.

H. Revealed law, natural law, and human law exist in a clear and inseparable relationship to one another.

I. The purpose of human law is to “command what is right, prohibiting what is wrong.”

J. Human law is not to violate God’s law, but is to decide what are right and wrong in regard to “things in themselves indifferent” (i.e., actions that are not intrinsically right or wrong but are declared so by human lawmakers).

K. Human law’s most effectual tool for producing right conduct and preventing wrong conduct is sanctions – punishment.

L. At the time of Creation, God gave man dominion over all the earth, but changes in society ultimately necessitated the emergence of individual property ownership.

M. There are three primary personal rights:

- Personal security. The right …consists in a person’s legal and uninterrupted enjoyment of his life, his limbs, his body, his health, and his reputation.

- Personal liberty. This personal liberty consists in the power of locomotion, of changing situation, or removing one’s person to whatsoever place one’s own inclination may direct; without imprisonment or restraint, unless by due course of law.

- Right of private property: law of the land. [This right] consists in the free use, enjoyment, and disposal [by man] of all his acquisitions, without any control or diminution, save only by the laws of the land.

N. Human judges are empowered to interpret the will of the legislature by certain distinct standards, including:

- The usual meaning of words;

- Context of the words being interpreted;

- Subject matter of the law;

- Effect of the interpretation—absurd meanings must be avoided;

- The reason for the law—why it was promulgated

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