Having considered laws generally and those universal precepts revealed by divine agency or discovered in the light of natural reason, we now take up the matter of merely human laws.
Since it is “impossible for the whole race of mankind to be united in one great society,” there exists above all kingdoms a “law of nations.” But we may doubt whether this is really law at all, for as Blackstone says, “a law always supposes some superior who is to make it.” He allows, according to the civil law maxim, quod naturalis ratio inter omnes homines constituit, vocatur ius gentium: that which natural reason has instituted among all men is called “the law of nations,” which depends upon the natural law, this being “the only [law] to which both communities are equally subject.”
The law of nations seems more a species of contract than of law generally. Sir William tries to rescue its status as “law” by subordinating it to “the law of nature,” but the laws of Parliament are also subordinate to the law of nature. They, however, are handed down by a superior – Parliament – to Englishmen. Natural law, although discovered by reason, is “laid down” by God, in Blackstone’s phraseology. (I avoid committing him to some particular interpretation of the Euthyphro dilemma.) The law of nations seems like a type of contract, and an unenforceable one at that.
“Municipal” law is a term reserved by Blackstone for the laws of a particular jurisdiction: a town or nation. It is what we regularly mean by inquiring, “Is that against the law?” It is “a rule; not a transient sudden order […] but something permanent, uniform, and universal.” By “universal,” Blackstone means that municipal laws are not directed to some specific person; so if Parliament should declare a man guilty of a crime (what was referred to as an “act of attainder,” a practice explicitly prohibited by the American Constitution) that is not a municipal law because it refers not to all persons in the jurisdiction.
The laws, although they are not counsels – “counsel acts only upon the willing, law upon the unwilling also” – are also not compacts or agreements, for “a compact is a promise proceeding from us, law is a command directed to us.” Blackstone rejects social contract theory. Quite refreshingly, he prefers not to toy with imaginary states of nature, in a departure from the usual habit of Enlightenment philosophers. He cannot believe “that there ever was a time when there was no such thing as society […it is a notion] too wild to be seriously admitted.” And “when society is once formed, government results of course.”
This last formulation is a good English translation of Aristotle’s much-quoted remark: ho anthropos physei politikon zoon; or, “The human being is, by its nature, a creature of the city-state.” Politikos refers to both society and government, being the adjectival form of polis, or city-state. By his very nature, then, man is both social and political. Although Blackstone will not take seriously any fables about primitive constitutional conventions, he does believe that there is some kernel of truth in the story: “though society had not it’s formal beginning from any convention of individuals […] yet it is the sense of their weakness and imperfection that keeps mankind together; that demonstrates the necessity of this union; and that therefore is the solid and natural foundation, as well as the cement, of society.”
Municipal laws, though they differ by jurisdiction, are generally defined thus:
A rule of civil conduct prescribed by the supreme power in a state, commanding what is right and prohibiting what is wrong.
It is, firstly, a rule, “not a transient sudden order.” But it is also a rule of “civil conduct,” which distinguishes it from the natural and revealed laws, “the former of which is the rule of moral conduct, and the latter not only the rule of moral conduct, but also the rule of faith.” These regard man “as a creature” and give his duty “to God, to himself, and to his neighbor.” But the municipal law considers man “also as a citizen.”
It is, moreover, a rule prescribed. Laws must be promulgated – and not in the manner of Caligula, “who (according to Dio Cassius) wrote his laws in a very small character, and hung them up upon high pillars, the more effectually to ensnare the people.” Yet if they are publicly promulgated, “it is then the subject’s business to be thoroughly acquainted therewith,” for if ignorance of the law were a valid excuse, “the laws would be of no effect.”
Municipal laws are issued by the supreme power. For this reason, “sovereignty and legislature are indeed convertible terms,” a matter which will be of some significance when we consider judicial review, a practice wholly rejected by Blackstone. And the laws must command what is right and prohibit what is wrong, so “it is first of all necessary that the boundaries of right and wrong be established and ascertained by law.”
It might seem natural to desire some expansion upon this point, but Blackstone seems to think he dispenses with it by an account of the declaratory, directory, remedial, and vindicatory aspects of law. This is, of course, inadequate. The magnitude of the task – to establish “the boundaries of right and wrong” – seems totally to escape Blackstone. Other than a rudimentary account of natural law theory – which is neither defence nor explication of method – he blithely assumes that there will be little difficulty in completing ethics and then enforcing them at law. The size of this gap in his account of municipal laws beggars belief. He doesn’t even make the half-hearted gesture of reassuring his readers, “The Church of England – or the common law – has already finished our project.” Did he really not think there might be some argument about “the boundaries of right and wrong”?
Rather than taking this problem further, he lists aspects of municipal laws: they are declaratory, in that they declare what is right and wrong (sometimes they make the thing wrong – do not import from France – sometimes they identify what is already wrong – i.e. do not murder). They are directory in that they command, “thou shalt not steal.” This seems redundant, and Blackstone admits as much: “this [aspect of the law] virtually includes the former.” They are remedial in that they offer remedies for wrongs, and vindicatory in that they punish malefactors. The remedial factor seems a matter of torts, vindicatory of criminal law.
In Britain, the legislature – the body that generates new laws – is the Crown-in-Parliament, or King, Lords, and Commons acting in unison. Blackstone’s treatment of the British constitution is deeply conventional. He takes it as the perfect mixed state. The Greek philosophers thought all governments were monarchical, oligarchic or democratic. The British constitution involves all three elements: the King, the House of Lords, and the House of Commons. The executive power is strong, the judicial power is wise (the Lords, until 2009, had an appellate judicial function) and no legislation can be enacted without the approval of all branches, guaranteeing support from all elements of society. In practice, by the mid-1700s it must have been obvious that the royal veto was a reserve power, to be invoked only in crisis or as a defence against the further erosion of royal power. It had not been invoked since 1708, under Queen Anne. The King still chose the Prime Minister, which was the real source of his effective control. Today, of course, all practical authority – and most theoretic strength – resides in the House of Commons, a development that Blackstone would have mourned.
Somewhere, Augustine writes (more or less) that it is inconceivable that there should be a body of publicly revealed truth without an equally public body – the Church – competent to interpret that revelation. It would seem cruel to give a book delineating right from wrong without a corresponding voice to answer further questions. Somebody has to interpret the law. Under the common law, interpretation is the province of judges. But it may seem more natural to repose it in the legislature.
In ancient Rome, “the usage was to state the case to the emperor in writing, and take his opinion upon it.” But this, Blackstone baldly says, “was certainly a bad method of interpretation. To interrogate the legislature to decide particular disputes, is not only endless, but affords great room for partiality and oppression [and] contrary to all true forms of reasoning, they argue from particulars to generals.”
Blackstone did not need to look so far afield for an example of reposing judicial functions in the legislature. When the Commentaries were written, the House of Lords was the final court of appeal in the United Kingdom, actively exercising both judicial and legislative functions. (During the Victorian Era, the judicial appellate function was restricted to a committee of the House of Lords, the Lords of Appeal in Ordinary, who were qualified jurists. The Lords of Appeal retained this authority until 2009, when the Supreme Court of the United Kingdom was created.)
It is the habit of the natural sciences to argue from particulars to generals and they have enjoyed some spectacular successes by inductive reasoning. It is also the habit of moral philosophy: all those thought experiments about manslaughtering trolley cars are meant to illuminate general principles by way of particular examples. I do not see why this should defeat the idea of appealing to the legislature to interpret its own muddied laws. As for “partiality and oppression,” this follows easily from Blackstone’s preferred example about the rescripts of the Roman Emperors (“rescripts” were their answers to legal questions, “edicts” their general, unprompted pronouncements) but it does not seem to apply to contemporary, democratic legislatures. If we trust the British Parliament to make the laws it seems only logical to refer back to them for explanation when those laws are confusing. The entire problem of judicial review would be neatly resolved by making the legislature itself the apex of the judicial branch. The only serious objection I can see is the magnitude of the time involved, superadded to their usual duties.
Blackstone thinks that “the fairest and most rational method to interpret the will of the legislator, is by exploring his intentions at the time when the law was made.” On Blackstone’s view, a judge in 1769 trying to interpret a statue from 1692 must interpret the will of the Parliament of 1692, which is collectively the author of the Act. But since the Parliament of 1769 could just as easily repeal or modify the original statute, then why must the judge go through the laborious process of imagining himself back into the previous century? Why not merely refer the statute to the legislative body, which can just as easily amend as interpret its meaning?
We might observe that this would open the laws to frequent fluctuation, which would be an undesirable outcome; but the legislature may, at any time, repeal any statute it has previously made. It is not even bound by prudential habits like stare decisis. In America, laws are generally harder to modify than to enact – once a law has leaped the three hurdles of House, Senate and Presidential veto, it is very, very difficult to reopen the matter – but in Britain, the House of Commons rules without any serious checks and few constraints. I do not find any of Blackstone’s counter-arguments convincing upon this point.
Having forced the judge to go through with this imaginative exercise, it seems only fair that our author should offer some interpretative advice, which he does.
“Words are generally to be understood in their usual and most known signification [according to] general and popular use.” Blackstone says nothing about archaic legislation – of which England, even in the 1760s, had ample supply – in which the meaning of the words may be not only unclear but forgotten. He does at least allow for “terms of art,” which must be interpreted according to their rarified and technical use.
Failing this first test – and it is, for Blackstone, the primary method of interpretation – we look to context. He prefers consulting the preamble, or comparing the “law with other laws, that are made by the same legislator, that have some affinity with the subject, or that expressly relate to the same point.”
Words must next be taken according to their subject matter: there was a law of King Edward III forbidding all ecclesiastics from purchasing “provisions” at Rome, which did not bar them from buying “grain and other victual” but rather nominations to vacant benefices.
Considering “effects and consequences” allows much wider scope for interpretation, and is the next method. For “the rule is, where words bear either none, or a very absurd signification, if literally understood, we must a little deviate from the received sense of them.” Blackstone cites Pufendorf who recounts a Bolognese law which enacted “that whoever drew blood in the streets should be punished with the utmost severity.” This was held not to apply to a surgeon who, on a public road, offered medieval medical assistance to a man suffering from seizures. (They probably would have done better to censure the surgeon.)
Lastly of all, Blackstone would have us consider “the reason and spirit” of the law “or the cause which moved the legislator to enact it.” He even suggests that “when this reason ceases, the law itself ought likewise to cease with it.” He recounts a story told by Cicero, of a law which provided that any man who forsook a ship in a storm relinquished all claim to any property he left behind. It so happened that there was a ship in a storm, abandoned by all its sailors, but for one very ill passenger who had not the strength to escape. The ship survived the storm and the passenger his disease, after which he claimed all the cargo by the terms of the law. But since the purpose of the law was to encourage sailors to risk their lives to save their ships, the ill man was thought to be outside the meaning of the law, and his suit was denied.
Thus much for municipal laws and their interpretation: now we may consider the laws of England.