The Blackstone Sermon

Sir William Blackstone (1723 – 1780) was an English jurist, whose Commentaries on the Laws of England (1765–69), are the best-known description of the doctrines of English law. The legal systems in the United States and Australia are based on the common law tradition, and Blackstone’s Commentaries are the bedrock upon which rests our understanding of common law.

In the first Commentary on the Nature of the Laws of England he provides an outstanding explanation of classical natural law, which is the basis for MLK’s writing from the Birmingham Jail that “there are two types of laws: there are just laws, and there are unjust laws. I would agree with St. Augustine that ‘an unjust law is no law at all.’” https://www.africa.upenn.edu/Articles_Gen/Letter_Birmingham.html

In the early 5th century B.C. E. the Greek playwright Sophocles raised a question in his play Antigone that would be forever a subject of legal philosophy – what is the relationship between law and morality; where is a person’s obligation when human law and God’s law conflict. In the play, the king orders that the body of Antigone’s brother – who had committed treason against the king – remain unburied. Antigone ignores the king’s command and buries her brother, risking her own death, saying that even the king “could not override the unwritten and unfailing law given to us by the gods.” Human law is subject to God’s law. A person is obligated to obey God’s law where it conflicts with human law.

Aristotle said that humans were political animals who organized themselves into communities, and that law is a sort of order that provides the framework for the rules and institutions through which society is constituted. He also articulated a concept which came to be seen as the ideal of the rule of law. He said that “law has a share in eternal, divine wisdom;” that “he who asks law to rule is asking God and intelligence to rule, and no others ….” Law was the means to restrain the power of tyrants who would pursue their own interests and not what was best for the community. (Consider the Trump impeachment articles, and the rule of law discussions going on today.)

The Romans had a more developed legal system than ancient Greece. The Roman jurist and philosopher Cicero (106 – 43 B.C.E.) gave us more structure, and perhaps the name “natural law,” to this theory about law. As a lawyer, he worked with the positive (human-written) law of Rome. His goal was to show the relationship between positive law and what he called “objective moral truths.” (Think Aristotle, eternal divine wisdom.) He wrote that “true law is right reason in agreement with nature,” and called the objective moral truths “laws.” To rephrase it, objective moral truths exist in nature, which we will call natural laws, and for a human law to be true law, it must conform to those natural laws. Cicero said that “those who formulated wicked and unjust statutes for nations, thereby breaking their promises and agreements, put into effect anything but ‘laws.’” I.e., there are moral criteria for determining the validity of laws. This idea took root, and 400 or so years later, Saint Augustine wrote the famous words that have become the slogan for classical natural law, that “an unjust law does not seem to be a law at all.”

The most famous treatment of classical natural law theory was Thomas Aquinas in the 13th century. Aquinas said that law has a distinctive purpose, which is to serve the common good of the political community; a way for society to realize goods which it cannot otherwise achieve (echoing Aristotle). Valid law is derived from objective moral principles (Cicero). The first way law is derived is by deduction from moral principles; a direct connection between a moral rule and a legal rule (e.g., murder). The second way law is derived is through making a determination of how a general moral principle will apply in a specific circumstance to facilitate human coordination. Traffic rules are derived from moral principles that prevent us from causing harm to others. Now Aquinas brings it home: if a law is not derived from moral principles in one of these two ways, it fails to be law. It is unjust, and an unjust law is no law at all. As a result, there is no obligation to obey the law. (Tell that to the judge and see how that works for you.)

So classical natural law claims that the content of law must be derived from objective moral principles that man can discover through reason in order to be valid and have the force of law. Classical natural law theorists believe (1) that there is a specific system of morality found in nature – a moral order; (2) this moral order is discoverable by reason; and (3) laws must conform to this moral order if they are to have the status of law.

But they claim more than just a connection between valid law and the moral order – they make a claim about the nature of the moral order. They posit a teleological view of nature. This is the idea that everything in nature, including man, is moving toward a telos; i.e., a specific end. The telos of an acorn is a full-fledged oak tree; the telos of man is biological maturity with excellent mind and character. Natural law must promote the achievement of this telos. Thus, classical natural law can be summarized as follows: (1) moral validity, being consistent with the moral order, is necessary for legal validity; and, (2) the moral order is part of the natural order; moral duties are fixed in nature, perhaps by God. Moral duty consists of acting in accord with these essential purposes. We are supposed to discover these essential purposes. Systems of social coercion were properly called “legal” only if consistent with those purposes.

Five centuries later, Sir William Blackstone gives us, in the first nine paragraphs of section 2 of the Introduction, Of the Nature of Laws in General, a wonderfully clear explanation of all of this. Blackstone’s argument is teleological. It is based on the proposition that God’s has a purpose for us. Just as God impressed upon matter the laws of physics, He impressed on human nature laws to govern human behavior; these laws are God’s will for us – our telos, our purpose. Our purpose is to be good, to do good. The laws exist in nature and are part of human nature because God put them there; they are natural law. They are based on concepts of justice that exist in nature before any human action. They are the eternal, unchangeable laws of good and evil. Some of these are to live honestly, hurt nobody, and render everyone their due. We use our God-given ability to reason to discover these rules of conduct, these natural laws that are part of our nature. How do we discover them? We use reason to determine if a course of human conduct leads to man’s real happiness. If so, it is part of the law of nature. If it tends to the destruction of man’s true happiness, the law of nature forbids it. He concludes, the law of nature, God’s will, is superior to any other law. No human law is valid if contrary to it.

Blackstone’s nine paragraphs are an excellent summary of the teleological-based classical natural law theory. But they also read to me like a sermon; they deliver in a logical manner a message of God’s will for His creation, humanity. Be good, do good. They provide an answer to the question, ‘what is the purpose of life?’

You can read them here, at pages 25 26. I will give you handout with them summarized when I make my presentation.

https://lonang.com/library/reference/blackstone-commentaries-law-england/

Discussion Questions: If, as Aquinas concludes, there is no obligation to obey an unjust law, does he mean there is no legal obligation as well as no moral obligation? Does morality have a place in evaluating law?

A thought: an essential function of law is to provide a justification for state coercion. Can an unjust law provide an adequate justification for the use of state coercive power if it fails to realize the moral ideals implicit in the concept of law? Can we say that it may be legally binding, but it is not fully law, true law?

Quiz Questions: (Hint: answers in bold type)

1. According to Cicero, true law is what?

2. According to Aquinas, what is the distinctive purpose of law?

3. According to Aquinas, how does a law fail to be a law?

4. Classical natural law theory claims that the content of law must be consistent with the moral order. What does it claim about the nature of the moral order?