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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 …
The Persistence Of Proximate Cause: How Legal Doctrine Thrives On Skepticism, Jessie Allen
The Persistence Of Proximate Cause: How Legal Doctrine Thrives On Skepticism, Jessie Allen
Articles
This Article starts with a puzzle: Why is the doctrinal approach to “proximate cause” so resilient despite longstanding criticism? Proximate cause is a particularly extreme example of doctrine that limps along despite near universal consensus that it cannot actually determine legal outcomes. Why doesn’t that widely recognized indeterminacy disable proximate cause as a decision-making device? To address this puzzle, I pick up a cue from the legal realists, a group of skeptical lawyers, law professors, and judges, who, in the 1920s and 1930s, compared legal doctrine to ritual magic. I take that comparison seriously, perhaps more seriously, and definitely in …
A Theory Of Adjudication: Law As Magic, Jessie Allen
A Theory Of Adjudication: Law As Magic, Jessie Allen
Articles
This article takes a new approach to the problem of legal rationality. In the 1920s and 1930s the Legal Realists criticized judicial decisions as "magic solving words" and "word ritual." Though the Realist critique continues to shape American jurisprudence, the legal magic they observed has never been seriously explored. Here, drawing on anthropological studies of magic and ritual, I reconsider the irrational legal techniques the Realists exposed. My thesis is that the Realists were right that law works like magic, but wrong about how magic works. That is, they were right that adjudication makes use of a particular combination of …