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Found Law, Made Law And Creation: Reconsidering Blackstone's Declaratory Theory, William Brewbaker

William S. Brewbaker III

The subject of this paper is Blackstone's famous declaratory theory of law - the claim that judges find the law, rather than make it. Blackstone's claim is widely rejected in the legal academy, often because Blackstone is (wrongly) associated with the brooding omnipresence view of law rejected in cases like Erie, Guaranty Trust and Southern Pacific Co. v. Jensen. I argue that Blackstone's theory fails for other reasons - namely, because his account does not square well with law practice as it exists and because his distinction between legislative lawmaking and judicial declaration is ultimately unsustainable. Despite its faults, Blackstone's …