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Found Law, Made Law and Creation: Reconsidering Blackstone's Declaratory Theory

William S. Brewbaker, University of Alabama

Abstract

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 account of judging remains popular in some circles– particularly among evangelicals. The patrician Oxford law professor seems an unlikely hero for American evangelicalism, which is a fundamentally a populist movement. Nevertheless, evangelicals have their reasons for admiring Blackstone. Historically, the assault on Blackstone in American law schools coincided with the academic movement to secularize American law. Philosophically, Blackstone’s moral realism and epistemic optimism sit well with evangelical habits of mind.

While Blackstone’s moral realism may be appealing to orthodox Christians (including evangelicals), his account of law ought to be unacceptable on the basis of their own theological presuppositions, because it represents a deficient understanding of traditional Christian teaching about creation. The traditional Christian theological understanding of creation emphasizes the world as a part of the larger story of God’s purposes. This understanding does not depend on any particular account of how the world came to be the way it is, but it has some surprising implications for how we understand the human activity of lawmaking. Indeed, it helps illuminate why accounts of law that treat law as either “merely found” or “merely made” have proven unsatisfactory.

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