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Unpublished Paper
Mr. Justice Blackstone: the Commentator on Common Pleas
ExpressO (2008)
  • EMILY KADENS, University of Texas at Austin

Although William Blackstone served longer as a judge on the English Court of Common Pleas than he had as the inaugural Vinerian Professor of English law at Oxford, his post-professorial legal life has been almost entirely ignored by scholars. Only one article, written almost fifty years ago and focused narrowly on legal doctrine, has offered any insight into Blackstone as a judge. And yet the subject is of great interest for two reasons. First, Blackstone was the first law professor to become a judge on an English common law court. Second, his judicial opinions provide an alternative, and arguably a more accurate, path into his legal thought. The lectures that became the Commentaries on the Laws of England were written when he was barely thirty years old and had spent fewer than seven unsuccessful years at the bar. By contrast, his judicial opinions are the work of a mature legal thinker. It is not possible accurately to assess how well the jurisprudence expressed in the Commentaries reflects his true legal thought without also studying his opinions and his other available practical legal writing. This article argues that Blackstone did, in fact, continue to view the law through the lens of the highly systematized and abstract rules that he presented in the Commentaries. Approaching the law with an academic mindset untempered by the realities of legal practice, he did not fully appreciate how the common law worked. Consequently, the man whose work is so admired in American law and who is so often cited as representing the state of the law at the time of the Founders, did not himself have a very good understanding of the legal mind of his age.

Publication Date
August 31, 2008
Citation Information
EMILY KADENS. "Mr. Justice Blackstone: the Commentator on Common Pleas" ExpressO (2008)
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