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Justinian Lane

Is it hypocritical for legal conservatives to complain about the citation of foreign law, when they often cite Blackstone?

That’s one of the questions posed at Findlaw by Steve Sanders. (Wikipedia has some brief background on Sir William Blackstone.)

Regardless of Blackstone's politics, aren't legal conservatives being a bit hypocritical when they scoff at the idea we could learn anything from modern-day foreign jurists, while at the same time consulting their well-thumbed copies of the Commentaries for the views of foreign jurists two-and-a-half centuries ago?

The answer is yes - and Scalia cheerfully admits it. "[T]he reality is I use foreign law more than anybody on the Court," he told an audience at American University in 2005. "But it's all old English law."

Conservatives justify this double standard because Blackstone, as the preeminent legal thinker of the Eighteenth Century, influenced our own framers. On this view, Blackstone was as important to our Constitution as James Madison or Alexander Hamilton. (Scalia has cited Madison - the Constitution's primary draftsman - less often than he cites the oracular Blackstone.) 

Source: FindLaw's Writ - Sanders: American Legal Conservatives Oppose the Citation of Foreign Law, But What About the Hallowed Practice of Citing to Blackstone?

I wonder from time to time just how long scholars from the 18th Century will have such a strong influence over our jurisprudence.  At some point, don’t we have to admit that individuals who have been dead for centuries can’t offer us relevant guidance on modern issues?  I’ll use the movie Minority Report as an example: In that movie, the police are able to see into the future.  Can anyone really suggest that Blackstone can offer guidance as to whether the visions of computer-enhances mutated humans should allow the police to arrest for committing a crime that hasn’t happened? 

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Posted at 11:09 AM, Oct 13, 2008 in
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Comments

Gladstone was a bewigged weasel. He voted for the Stamp Act that set off the Revolutionary War. He tried and convicted our beloved patriots in absentia. He is not only a foreigner, he is an enemy of our nation.

He was the one who claimed, better to set 10 guilty men free, than to convict one innocent man.

1) He lived in a low crime neighborhood.

2) The 10 guilty men are lawyer customers, generating fees. Their crime victims do not generate lawyer fees. Each will victimize 100's of people each year allowed to live. These victims do not generate lawyer fees, so do not merit any consideration by Gladstone.

3) His doctrines are a rent seeking, pro-criminal abomination.

Posted by: Supremacy Claus | October 14, 2008 12:17 AM

"He lived in a low crime neighborhood."

LOL!

Posted by: Justinian Lane | October 14, 2008 11:43 AM