Blackstone - Cold Calls

What is law in its broadest sense?

A rule of action prescribed by a superior that an inferior is bound to obey.

Natural law?

Immutable law governing human conduct, discoverable by reason.

Revealed law?

Divine law expressly revealed in Scripture.

Relationship between natural and human law?

Human law is subordinate to natural and revealed law in Blackstone's hierarchy.

What is law of nations?

Law regulating interaction among independent states, based on natural law and agreements.

Municipal law?

“A rule of civil conduct prescribed by the supreme power in a state, commanding what is right and prohibiting what is wrong.”

Why “rule”?

It is permanent, uniform, and general rather than a one-person order.

Why “prescribed”?

People must receive notice of the law.

Why are ex post facto laws objectionable?

They punish someone for conduct that was not unlawful when done.

What are the three government qualities?

Wisdom, goodness, power.

Three forms?

Democracy, aristocracy, monarchy.

Why does Blackstone admire Britain's mixed constitution?

It combines the supposed strengths of all three and enables the branches to resist one another.

Four parts of a law?

Declaratory, directory, remedial, sanction/vindicatory.

Mala in se?

Wrong in itself.

Mala prohibita?

Wrong because prohibited.

Law — Blackstone →

“a rule of action” prescribed by a superior and binding upon the inferior.

Law of Nature →

The Creator's immutable law governing human conduct, discoverable through reason.

Three General Natural-Law Precepts →

Live honestly; hurt nobody; render to everyone his due.

Revealed/Divine Law →

Divine law directly revealed by God and found in Scripture.

Human Law →

Law made by human political authority, which Blackstone views as subordinate to natural and revealed law.

Indifferent Matter →

Conduct neither commanded nor prohibited by natural/revealed law and therefore especially open to municipal regulation.

Law of Nations →

Law regulating relations among independent states through natural law and compacts, treaties, leagues, and agreements.

Municipal Law →

“a rule of civil conduct prescribed by the supreme power in a state, commanding what is right and prohibiting what is wrong.”

Rule — Municipal Law →

A permanent, uniform, general command rather than a temporary order against a particular person.

Law vs. Counsel →

Counsel persuades and may be rejected; law commands and binds even the unwilling.

Law vs. Compact →

A compact is a promise proceeding from the parties; law is a command directed to them.

Prescribed Law →

Law that has been communicated/promulgated to those expected to obey it.

Ex Post Facto Law — Blackstone →

 A law that makes previously innocent conduct criminal after it occurred; Blackstone condemns such retroactive punishment.

In Futuro →

Operating prospectively, in the future.

Original Contract →

Implied reciprocal relationship in which society protects its members and members submit to society's laws.

Wisdom — Government →

Ability to discern the real interests of the community.

Goodness — Government →

Commitment to pursue the community's real interests.

Power — Government →

Capacity to carry the government's judgment into action.

Democracy →

Government in which sovereign authority is lodged in the free members of the community.

Aristocracy →

Government in which sovereign authority is lodged in a selected council.

Monarchy →

Government in which sovereign authority is entrusted to one person.

Mixed British Constitution →

 King's monarchical element + Lords' aristocratic element + Commons' democratic element.

Declaratory Part of Law →

 Defines rights and wrongs.

Directory Part of Law →

 Directs people to observe rights and refrain from wrongs.

Remedial Part of Law →

Provides a means to recover private rights or redress private wrongs.

Sanction/Vindicatory Part →

Specifies punishment for violation of public duties.

Mala in Se →

 Conduct wrong in itself under superior moral/natural law.

Mala Prohibita →

 Conduct made legally wrong because positive human law prohibits it.

What are Blackstone's four main divisions?

Rights of persons; rights of things; private wrongs; public wrongs.

Natural vs. artificial person?

Human being vs. legal entity created by law.

Absolute vs. relative rights?

Rights held as an individual vs. rights arising from social relationships.

Why does human law protect absolute rights if they already exist naturally?

Because individuals cannot reliably preserve those rights without organized social protection.

Natural liberty?

Freedom to act as one thinks fit subject only to natural law.

Civil liberty?

Natural liberty restrained only as necessary for public advantage.

Does Blackstone see law and liberty as opposites?

No. Proper law can increase civil liberty by securing people against one another.

Rights of Persons / Jura Personarum →

 Rights concerning and attached to persons.

Rights of Things / Jura Rerum →

 Rights acquired over external things or property.

Private Wrong / Civil Injury →

Infringement of an individual's particular right.

Public Wrong →

Breach of public/general rights affecting the community; includes crimes and misdemeanors.

Civil Duty →

 Duty owed by a citizen within civil society.

Natural Person →

Human person.

Artificial Person →

 Legal entity created by human law, such as a corporation or body politic.

Absolute Right →

Right belonging to a person as an individual and, in Blackstone's theory, existing even in a state of nature.

Relative Right →

Right arising from one's social or legal relationship with others.

Absolute Duty →

 Individual moral duty not necessarily enforceable through municipal law.

Relative/Social Duty →

Duty arising from membership in society and therefore properly regulable by municipal law.

Principal Aim of Society →

Protection of individuals in the enjoyment of their absolute natural rights.

Natural Liberty →

Freedom to act as one thinks fit without restraint except natural law.

Civil/Political Liberty →

Natural liberty restrained by human law only as necessary and expedient for the general public advantage.

Tyranny — Blackstone →

Wanton or causeless restraint on individual will lacking sufficient public purpose.

Law and Liberty →

Proper restraints on harmful conduct can diminish raw natural freedom while increasing secure civil liberty.

Three primary absolute rights?

Personal security, personal liberty, private property.

Personal security includes what five things?

Life, limbs, body, health, reputation.

Personal liberty?

Freedom of locomotion and freedom from imprisonment/restraint except by due course of law.

Property?

Free use, enjoyment, and disposal of one's acquisitions subject to the law of the land.

Habeas corpus?

Judicial mechanism for testing whether detention is lawful.

Why is arbitrary imprisonment especially dangerous?

It may occur secretly and quietly, making tyranny harder for the public to observe.

What is imprisonment?

Any substantial confinement against one's will—not merely placement in a jail.

What makes imprisonment lawful in Blackstone's discussion?

Lawful court process or authorized legal warrant/cause.

What if government needs private land for a public road?

The legislature may compel transfer, but Blackstone requires full indemnification/equivalent compensation.

Where do these rights come from in Blackstone's theory?

Fundamentally from natural law/natural liberty; positive law declares, protects, and regulates them.

Magna Carta / Great Charter — Blackstone →

Fundamental charter Blackstone treats primarily as declaratory of ancient English liberties and protections under the law of the land.

Confirmatio Cartarum →

Statutory confirmation of Magna Carta and its legal authority.

Petition of Right →

Parliamentary declaration reaffirming liberties against unlawful royal action.

Habeas Corpus Act →

Statutory reinforcement of judicial protection against unlawful detention.

Bill/Declaration of Rights →

1688–89 declaration and enactment recognizing asserted liberties as ancient and indubitable rights.

Act of Settlement →

 Later settlement that again secured religion, law, and liberties.

Three Primary Absolute Rights →

Personal security, personal liberty, private property.

Personal Security →

Legal and uninterrupted enjoyment of life, limbs, body, health, and reputation.

Mayhem — Historical Blackstone Usage →

Serious disabling injury to bodily members important for self-defense.

Se Defendendo →

 In self-defense.

Duress →

Coercion that can undermine the legal voluntariness or validity of an act.

Duress of Imprisonment →

Coercion resulting from unlawful restraint of liberty.

Duress Per Minas →

Duress by serious threats; Blackstone's historical treatment emphasizes threatened loss of life or limb.

Law of the Land →

Requirement that deprivations of fundamental interests occur through established lawful authority rather than arbitrary power.

Due Process of Law — Blackstone Passage →

 Requirement that a person be lawfully brought to answer before punishment affecting life or limb.

Personal Liberty →

Power of locomotion and freedom from imprisonment or restraint except by due course of law.

Power of Locomotion →

Ability to move one's person and change location according to one's own choice.

Habeas Corpus →

Judicial process testing the legal cause and authority for a person's detention.

Imprisonment — Blackstone →

 Any confinement against the person's will, including restraint in a house, stocks, street, or jail.

Lawful Imprisonment →

Restraint based upon lawful judicial process or valid authority sufficient to justify commitment.

Private Property →

Free use, enjoyment, and disposal of one's acquisitions except as controlled by the law of the land.

Public Taking — Blackstone →

Legislature may require property for public purposes but should provide the owner full indemnification/equivalent or a reasonable price.

Taxation and Consent →

Blackstone links lawful taxation to the consent of the person or his representatives.