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Articles 1 - 7 of 7
Full-Text Articles in Legal History
Blackstone, Expositor And Censor Of Law Both Made And Found, Jessie Allen
Blackstone, Expositor And Censor Of Law Both Made And Found, Jessie Allen
Book Chapters
Jeremy Bentham famously insisted on the separation of law as it is and law as it should be, and criticized his contemporary William Blackstone for mixing up the two. According to Bentham, Blackstone costumes judicial invention as discovery, obscuring the way judges make new law while pretending to uncover preexisting legal meaning. Bentham’s critique of judicial phoniness persists to this day in claims that judges are “politicians in robes” who pick the outcome they desire and rationalize it with doctrinal sophistry. Such skeptical attacks are usually met with attempts to defend doctrinal interpretation as a partial or occasional limit on …
Reading Blackstone In The Twenty-First Century And The Twenty-First Century Through Blackstone, Jessie Allen
Reading Blackstone In The Twenty-First Century And The Twenty-First Century Through Blackstone, Jessie Allen
Book Chapters
If the Supreme Court mythologizes Blackstone, it is equally true that Blackstone himself was engaged in something of a mythmaking project. Far from a neutral reporter, Blackstone has some stories to tell, in particular the story of the hero law. The problems associated with using the Commentaries as a transparent window on eighteenth-century American legal norms, however, do not make Blackstone’s text irrelevant today. The chapter concludes with my brief reading of the Commentaries as a critical mirror of some twenty-first-century legal and social structures. That analysis draws on a long-term project, in which I am making my way through …
Beccaria's On Crimes And Punishments: A Mirror On The History Of The Foundations Of Modern Criminal Law, Bernard E. Harcourt
Beccaria's On Crimes And Punishments: A Mirror On The History Of The Foundations Of Modern Criminal Law, Bernard E. Harcourt
Faculty Scholarship
Beccaria’s treatise On Crimes and Punishments (1764) has become a placeholder for the classical school of thought in criminology, for deterrence-based public policy, for death penalty abolitionism, and for liberal ideals of legality and the rule of law. A source of inspiration for Bentham and Blackstone, an object of praise for Voltaire and the Philosophes, a target of pointed critiques by Kant and Hegel, the subject of a genealogy by Foucault, the object of derision by the Physiocrats, rehabilitated and appropriated by the Chicago School of law and economics — these ricochets and reflections on Beccaria’s treatise reveal multiple dimensions …
Law And Artifice In Blackstone's Commentaries, Jessie Allen
Law And Artifice In Blackstone's Commentaries, Jessie Allen
Articles
William Blackstone is often identified as a natural law thinker for whom property rights were preeminent, but reading the Commentaries complicates that description. I propose that Blackstone’s concept of law is more concerned with human invention and artifice than with human nature. At the start of his treatise, Blackstone identifies security, liberty and property as “absolute” rights that form the foundation of English law. But while security and liberty are “inherent by nature in every individual” and “strictly natural,” Blackstone is only willing to say that “private property is probably founded in nature.” Moreover, Blackstone is clear that there is …
A New Image Of The Slave Auction: An Empirical Look At The Role Of Law In Slave Sales And A Conceptual Reevaluation Of Slave Property, Thomas D. Russell
A New Image Of The Slave Auction: An Empirical Look At The Role Of Law In Slave Sales And A Conceptual Reevaluation Of Slave Property, Thomas D. Russell
Sturm College of Law: Faculty Scholarship
This legal history article presents a new understanding of the nature of slave property. Slave property was divided and fragmented into many different interests including those with application to real property such life estates, remainders, shifting and spring interests, and leasehold interests. With regard to these interests, the article overlays the first-year, law-school property course onto slaves as property. Property interests in slaves were also divided by credit mechanisms including mortgages and secured credit transactions. Warranties are another example of divided property interests in slaves.
The fragmented, Hohfeldian nature of slave property distributed the stake that southerners had in the …
Review Of The Province Of Legislation Determined: Legal Theory In Eighteenth-Century Britain, Thomas A. Green
Review Of The Province Of Legislation Determined: Legal Theory In Eighteenth-Century Britain, Thomas A. Green
Reviews
David Lieberman's lucid and sure-footed reinterpretationof late-eighteenth and early-nineteenth-century jurisprudence is original, thoughtful, analytically acute, and a pleasure to read. Lieberman argues that Bentham's law reform ideas must be viewed in relation to earlier (and contemporary) reform traditions. Bentham's views were more complex than the long-held myth would have it, partly because they were more derivative, at least in his early enterprises, combining as they did a reception of earlier notions with the novelty for which he is usually credited. Blackstone and Mansfield, on this account, were not the match stick figures they are sometimes made out to be; the …
English Common Law In Virgina, William Hamilton Bryson
English Common Law In Virgina, William Hamilton Bryson
Law Faculty Publications
By statute the common law of England is the basis of the common law of modern Virginia. This reception statute refers to the customary, unwritten law of the kingdom of England, but only that part which was general and common to all parts of England. That the English common law is the foundation of the law of Virginia is a matter not merely of a modern statute but also of history and reason.