Simon Stern, ‘Blackstone’s Legal Actors: The Passions of a Rational Jurist’

Abstract:
The success of Blackstone’s Commentaries is usually attributed to the ambition of his project: to give a synthetic and integrated overview of the common law. Blackstone’s effort, however strained, to display the law’s coherence, helps to explain why the Commentaries were taken up by so many generations of avid readers, but the book’s success also owes something to Blackstone’s method of showcasing this coherence and soliciting the reader’s enthusiasm for it. Blackstone does not simply methodize the law; he also personifies the law as an active force that produces consistency, and he similarly casts the reader as someone who partakes of the same sensibility and appreciates the same virtues. Blackstone places both the law and the law student in an affective relation to the rationalizing aims promoted in the Commentaries. By positing, within the text, a reader who attaches to the law in this fashion, Blackstone encourages his reader to take it for granted that this sense of attachment is part and parcel of the study of law.

The chapter begins by examining Blackstone’s figuration of the law and its passions, and the pattern in which he attributes the same dispositions to the reader. Next, the chapter considers Blackstone’s treatment of emotion in the criminal law, which describes the violent impulses of passionate actors – now presented as objects rather than subjects of legal thought – whose feelings are distinguished from the emotions that inform the law’s operations and that animate the law’s human exponent. Finally, the discussion turns to the place of emotion in Blackstone’s often-quoted paean to the imaginative power of the property right – a tribute that also positions the property-owner and his “affections” as the objects of legal thought. When this passage is considered in relation to Blackstone’s other accounts of legal passion, the property-owner emerges as a figure whose feelings might themselves be the product of a Blackstonian legal education.

Stern, Simon, Blackstone’s Legal Actors: The Passions of a Rational Jurist (March 24, 2014). Nancy Johnson, ed., Impassioned Jurisprudence: Law, Literature and Emotion, 1660-1800 (Bucknell University Press, Aperçus series, 2014), forthcoming.

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