{"id":2860,"date":"2019-11-20T15:57:13","date_gmt":"2019-11-20T20:57:13","guid":{"rendered":"https:\/\/hedgehogsandfoxes.org\/?p=2860"},"modified":"2020-09-24T00:34:01","modified_gmt":"2020-09-24T04:34:01","slug":"the-king-is-dead-long-live-the-law","status":"publish","type":"post","link":"https:\/\/hedgehogsandfoxes.org\/index.php\/2019\/11\/20\/the-king-is-dead-long-live-the-law\/","title":{"rendered":"The King Is Dead, Long Live the Law"},"content":{"rendered":"

Jessie Allen, School of Law, University of Pittsburgh<\/a><\/p>\n

Book the First. \u00a0Of the RIGHTS of PERSONS. \u00a0Chapter the Third. \u00a0Of the King, and his Title.<\/strong><\/em><\/a><\/p>\n

In\u00a0this chapter\u00a0<\/a>you really see how Blackstone both inspired and pissed off the American founders. \u00a0It\u2019s a hymn to the hereditary right of kings whose main theme is that the representative legislature gets to decide everything \u2014 including who gets to be king. \u00a0Of course, in Blackstone\u2019s world that legislature included not only the unelected lords but the king, who had veto power, but still . . . . It\u2019s a long way from the kind of divine right of \u00a0royalty that often gets opposed to the idea of elected democracy. \u00a0Is there anything that isn\u2019t more complicated than we think it is?<\/p>\n

Blackstone\u2019s England is all about compromise. The British ship of state steers between the extremes of an elected sovereign, which \u201cmay sound like the perfection of liberty, and look well enough when delineated on paper, but in practice will be ever productive of tumult, contention, and anarchy\u201d and a monarch with a \u201cdivine indefeasible hereditary right,\u201d which \u201cis surely of all constitutions the most thoroughly slavish and dreadful\u201d (p. 211). \u00a0In the government the\u00a0Commentaries<\/em>\u00a0celebrates (and to some extent instantiates), the sovereign\u2019s hereditary right is limited by the absolute individual rights that every Englishman inherits.\u00a0Id.<\/em><\/p>\n

This stuff must have driven Jefferson insane. \u00a0On the one hand, here\u2019s the blueprint for representative government, based on \u201cthe natural liberty of mankind\u201d (p. 121), in which legislators \u2014 and legislation \u2014 reign supreme. \u00a0That\u2019s good. \u00a0On the other hand here is an equally well-articulated condemnation of elected sovereignty. \u00a0That\u2019s bad. \u00a0Plus, Blackstone\u2019s got some serious rhetorical skill. \u00a0 Making the British monarchy look like the modest middle ground between two wacko polarities is a strategy known to every good negotiator: \u00a0The more persuasively you can situate that bailout plan, brand of panty hose, political ideology you\u2019re trying to sell as a compromise between risky extremes, the more likely you are to make that sale. And then there\u2019s the part where Blackstone claims elections are a primitive survival of our less civilized past: \u00a0\u201cin the infancy and first rudiments of almost every state, the leader, chief magistrate, or prince, hath usually been elective\u201d (p. 186). \u00a0Finally there\u2019s the argument from experience: \u00a0as \u201chistory and observation will inform us\u201d only hereditary monarchy \u00a0prevents \u201cperiodic bloodshed and misery.\u201d \u00a0Id<\/em>.<\/p>\n

The funny thing is, though, after all those canny rhetorical moves, the chapter\u2019s argument that hereditary succession is necessary to stabilize society fails. \u00a0At least for this reader. \u00a0And I have to think it probably misfired for a number of 18th century readers, too, which may be part of how Blackstone wound up more revered in the new world he reviled than in the old one he celebrated. What\u2019s more, the defense of sovereignty by birthright falls apart so slowly and obviously that I actually wonder if it wasn\u2019t part of Blackstone\u2019s plan all along to sacrifice this point in order to shore up another idea that was way more important to him: \u00a0that it\u2019s laws that ultimately secure successful societies.<\/p>\n

The whole long middle portion of\u00a0the chapter<\/a>\u00a0is devoted to a blow by blow chronology of the passage of the English crown down from King Egbert in 800 to \u201cour present gracious sovereign, king George the third,\u201d and it is just really hard to see how anyone confronting this twisted saga of intrigue, accident, insurrection and compromise could come away with the idea that hereditary succession is a good way to decide who gets to govern. \u00a0It\u2019s just one royal mishap after another. \u00a0Queens die \u201cwithout issue,\u201d princes get deposed by interloping uncles who \u201cusurp[] the royal dignity,\u201d and every time you turn around there\u2019s another exception being made to an already incredibly complex (but still apparently hopelessly indeterminate) set of rules for sorting out where the crown lands when the music stops. The one constant, really, is the legitimating authority of parliament \u2014 which is always having to step in and declare that the current reigning monarch is actually the right one. \u00a0Which is what makes me just a little bit suspicious that Blackstone, who I must say I am really starting to think of as someone with a rather subtle sense of humor, may have wanted his readers to have this reaction.<\/p>\n

If there is an institution here that looks solid and dependable it is \u2014 surprise, surprise \u2014 the law. \u00a0In the monarchy Blackstone describes, laws don\u2019t come from the king \u2014 the king comes from the laws. Hereditary succession to the English crown is a choice that \u201claws have created and vested in the royal stock\u201d (p. 211). \u00a0And these aren\u2019t natural \u2014 or divine \u2014 laws, either. \u00a0Blackstone mocks the idea that \u201cthe finger of providence was visible\u201d in the king\u2019s title, insisting that \u201cit was clearly a human institution\u201d and \u201cno natural, but a positive right\u201d (p. 202). \u00a0What makes this all the more remarkable is the fact that, to the contrary, Blackstone contends that the basic rights of human beings\u00a0do<\/em>\u00a0come from God. (See, e.g.,\u00a0<\/em>pp. 119-123). \u00a0\u00a0So we wind up with a complete flip of the regal appeal to divine intervention with god on the side of the monarch\u2019s subjects who are ultimately in charge \u2014 through the laws their representatives enact \u2014 of who gets to be king. \u00a0In the end, it seems a very short distance, if any, from Blackstone\u2019s vision of the government that \u201cit is is the duty of every good Englishman to understand, to revere, to defend\u201d (p. 211) and Thomas Paine\u2019s avowal, in\u00a0the tract\u00a0<\/a>that urged rebellion against that very government, that \u201cso far as we approve of monarchy, . . . in America the law is king.\u201d<\/p>\n

 <\/p>\n\n

Tweet<\/a><\/div>\n","protected":false},"excerpt":{"rendered":"

Jessie Allen, School of Law, University of Pittsburgh Book the First. \u00a0Of the RIGHTS of PERSONS. \u00a0Chapter the Third. \u00a0Of the King, and his Title. In\u00a0this chapter\u00a0you really see how Blackstone both inspired and...<\/p>\n","protected":false},"author":3,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_monsterinsights_skip_tracking":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[268,255,492],"tags":[132,200],"class_list":["post-2860","post","type-post","status-publish","format-standard","hentry","category-jurisprudence","category-law-and-philosophy","category-william-blackstone","tag-news","tag-william-blackstone"],"jetpack_featured_media_url":"","jetpack_shortlink":"https:\/\/wp.me\/pasVL2-K8","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/posts\/2860","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/comments?post=2860"}],"version-history":[{"count":2,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/posts\/2860\/revisions"}],"predecessor-version":[{"id":3013,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/posts\/2860\/revisions\/3013"}],"wp:attachment":[{"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/media?parent=2860"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/categories?post=2860"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/tags?post=2860"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}