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Issue 73 - July 2015
Book Review: Re-Interpreting Blackstone’s Commentaries Print E-mail

BlackstoneAuthor: Wilfred Prest 

Publisher: Hart Publishing 

Reviewer: David Marks 

My previous book review for this journal was of Mr Seddon’s “Government Contracts”

The first line of that review was: “The Queen could do no wrong”.

The phrase is Blackstonian. (Book 3 Chapter 17) It is impossible to avoid his influence.

Anyone will gain by reading the Commentaries. This is recognised by their resurgence in the United States. As Ms Allen shows in her essay, in Re-interpreting Blackstone’s Commentaries, the Commentaries are “undergoing a renaissance at the Supreme Court”, being “cited … at rates not seen since the early 19th Century”.

The Commentaries themselves are freely available online. I have the facsimile first edition from Chicago University Press (USD 280).

When do you use the Commentaries? I used it last fortnight on a question concerning the law of mental disorder. It is particularly valuable on obscure and “obvious” points. Blackstone was unafraid to state the obvious. He often is the last word on the obvious.

The essays under review have the usual mix of interest from any learned symposium. I will simply notice three. The final chapter by Ms Allen on “Reading Blackstone in the Twenty-First Century and the Twenty-First Century through Blackstone” shows the marked increase in recent years in citations from the Commentaries. In this case a bar graph and a table of statistics make the case well. Her qualitative analysis of how Blackstone is being used is ground breaking. Sceptical of the way in which the Commentaries are being deployed, Ms Allen describes Blackstone’s celebration of the “common law as a quintessentially social creation with great potential for liberal political development”. Whether Ms Allen’s closing observations, concerning the influence of Blackstone on evolution of the Internet, comes to pass, is something that might be picked up in a conference in another 100 years.

The second essay of particular interest is by Professor Prest, “Antipodean Blackstone”. He points to the celebration of Blackstone in stained glass at the University of Sydney, and in bold lettering at the entrance to the University of Queensland Law School. This indicates a reverence in Australia for a work first published in 1760. (That date of first publication is perhaps particularly significant, in terms of American constitutional law, as described in the previously mentioned essay by Ms Allen.)

Wilfred PrestProfessor Prest convincingly shows the presence of the Commentaries on the First Fleet, something supported by a letter he mentions of 1795. Anyone who knows the Commentaries will understand that the four volumes might well have been a ready substitute, in a fledgling colonial outpost, for more voluminous law books.

And then Mr Prest speaks of the influence of Blackstone on the reception of English law in Australia, the Commentaries being cited in 1833 by Forbes CJ.

The third essay to which I give attention in this review is by Mr Halliday, “Blackstone’s King”. He puts Blackstone’s Commentaries in their historical context. He gives particular attention to Blackstone’s treatment of the gradual loss of royal prerogatives in the 17th Century, which Blackstone gingerly pointed out seemed to have been “gradually and imperceptibly” balanced by gains in wealth by the Crown. Mr Halliday says: “Nonetheless, the binding of influence, just as the binding of the prerogative, required speech and pen. Blackstone used each, unabashedly, attempting to bind the crown just as he had bound the king.” Nevertheless Mr Halliday’s treatment shows Blackstone not to have been overly heroic, but rather measured in making these political observations.

Trends in America often become trends in Australia. The time of founding of the United States of America, 16 years after publication of the Commentaries, doubtless has given rise to the increase in interest in that nation. With Professor Prest’s essay on the early influences of the Commentaries in Australia and New Zealnd, there is cause for a reappraisal here.

I do not see this as being particularly a practitioners’ book. It is a book to read beside the Commentaries, so we keep Blackstone’s influence and influences in mind. It is a necessary, modern and scholarly work, so the Commentaries remain useful.

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