Rationality·Rights·Liberty—Research On Blackstone's Legal Thought

Sir William Blackstone(1723~1780),as the key and famous scholar in the development of the history of the England Common Law, wrote the four volumes of The Commentaries on the Laws of England. After the Glorious Revolution, the Common Law, which occupies an important position in the history of England, has been caught up in the development of the bottleneck. In England, which had a fairly high degree of economic rationality, the rationality of the Common Law was at a relatively low level. The Common Law is consisted of old and complicated judicial techniques. Because the Common Law was incompatible with economic rationality, it was rejected by England university education, which was represented by Oxford university and Cambridge university. At the life or death moment of the Common Law, Blackstone set up a lecture at Oxford University to taught the Common Law. With his own exquisite language skills and rich judicial practice experience in the Common Law, the cumbersome and complex Common Law has been introduced into the university classroom. On this basis, he published the four volumes of the Common Law, which has been classical works of law in England and even the whole western world. In order to completely clear Blackstone's legal thought, returned to Blackstone's period and the specific historical circumstance will be a practical way. If we want to understand the legal thought of the Blackstone's,we should read The Commentaries, the representative text of Blackstone's. On this basis, the basic features of the Common Law and realistic significance will be proved by analyzing the origin, formation, development and influence of the Blackstone's legal thought. The specific structures and arrangements regarding of the whole dissertation are following:Chapter 1 is to show that it is a challenging work to interpret the theoretical origin and structure of The Commentaries. By referring to external form and structure of the ancient Rome law works, The Institutes of Justinian, Blackstone constructed a more perfect system of the Common Law, which avoided criticism and interrogation due to the lack of a complete system and structure. The reference of external structure was deeply loved by the young students of University of Oxford, because it accorded with representative characteristics of modern social science. It becomes a great boost for his success in the Common Law. But here it is necessary to illustrate, Blackstone just adopted its external form, rather than internal essence. Blackstone stuck to the traditional, which reflects the unique stubborn and conservative temperament of the English. In fact, The Commentaries is still insisting that the Common Law has all the qualities to adapt to the development of modern society. From the source of thought, The Commentaries has a great relationship with The Institutes on the surface. And Blackstone himself admit that he adopted Montesquieu's theory, such as the theory about separation of powers,and he also very respected Montesquieu. But People should trace back to the source of Blackstone's legal thought by following the path of Matthew Hale, and Coke's thought, and along the historical path of the Common Law.On the second chapter,in order to let everyone believe that the Common Law has been ready for the upcoming rapid development of England, Blackstone extracted the three matched elements: rationality(scientific), rights and freedom, from The Commentaries. In addition to adding the external legal system form of the Common Law, Blackstone added other elements such as the natural rationality, and natural law into the Common Law, the so-called technique rationality, to establish a legal system of the Common Law. In addition, he introduced the popular social contract theory as well as the decentralization theory, to improve the theoretical system of the Common Law. Blackstone not only attempt to find the way to integrate the traditional apprenticeship system and the modern university system, but also try to find the living space of the Common Law between technique rationality and natural rationality.On the third chapter, adding the element of rights in the Common Law is the very crucial attempt for Blackstone to reform the tradition of the Common Law. Blackstone tried to build a complete system of rights, to balance technique rationality and natural rationality. Through the construction of the right system, people would see that the Common Law can not be replaced in the maintenance of personal rights and the value of freedom. In particular, Blackstone predicted the important value and prominent position of the property right in the modern society. Therefore, it is particularly important to figure out the source and essence of the right to property. At the moment that the commercial civilization was about to dominate the England, Blackstone pointed out the inseparable relationship between property right and business. What's more important, Blackstone directly pointed out the relationship among property right, business and freedom, and insisted that, the three were inseparable from the Common Law.The fourth & fifth chapters are to show that freedom is the tradition of the Common Law, and the various stages of the development of the Common Law have proved this conclusion. The history of the Common Law is also the struggle history of freedom for the English. The freedom was protected by the Common Law. The freedom is the result of a long struggle between the Common Law and the kingship, the tradition of which is what Blackstone emphasized and insisted on. While Blackstone defended and insisted the traditional Common Law, he dug into other elements such as rationality, rights and freedom to build the Common Law which adapted to the need of social development in the new era, thus to resolve crisis of the Common Law in modern society and remould gloriousness of the Common Law in England. Under the precondition of adhering to the traditional legal civilization, he transformed and improved the traditional legal system. The way is worth of our thinking and learning.The Common Law becomes more systematic and scientific after improved by Blacktone, more adaptive to the need of England which will changes from tiny country to world empire.