The Age of Blackstone and Kames

Abstract

Selden and Hale presented a reorientated vision of the common law, which focused on law as the product of positive imposition. They saw custom as a set of positive rules originating in the past, which had been developed by judicial argument in court. In their vision, the law of nature played a muted role, as a premise of the system rather than as a working tool. This vision proved a particularly influential one on common lawyers, as can be seen from an examination of the most important English jurist of the eighteenth century, Sir William Blackstone. Blackstone’s principal work, Commentaries on the Laws of England (1765–1969), was the fruit of his lectures at Oxford, and were designed to give an introduction to the law to the gentleman (see Lieberman 1989, chaps. 1–2). They were the best and most elegant overview yet written, and one which aimed to examine all aspects of law. Blackstone was more an expositor and summariser than a deep thinker, and his theoretical positions were often inconsistent. Nevertheless, the prevailing idiom of his work was that of Selden and Hale, both in his understanding of the nature of the constitution and in his views on the foundations and workings of the common law. At the same time that Blackstone was working, a different and less positivist view of law was being developed to the north of the border. There, the most important published jurist of the Scottish Enlightenment, Lord Kames, developed a theory which sought to answer questions left unanswered by Blackstone’s vision, on different premises.