However, good an 18th century university administrator and judge Sir William Blackstone may have been, and however personally well disposed he may have been to liberty and property, the rights of the latter being the essential foundation for the former, his doctrine of the Sovereignty of Parliament was radically subversive of the principles of liberty – leading, in the short term, to war with the American colonies, and, in the longer term, the undermining of liberty in Britain and elsewhere.
The central “Whig” principle is that there are some things that the ruler or rulers, Kings or Parliaments, may not do – that natural law – natural justice to-each-their-own-liberty, expressed in the Common Law and other traditions, forbids fundamental attacks on liberty and property, either by private criminals or by the government.
This was the position of Chief Justice Sir Edward Coke in “Dr Bonham’s case”, it was the position of Ralph Cudworth and others against the unlimited government doctrine of Thomas Hobbes (whose mentor was that servant of unlimited government “The New Atlantis” Francis Bacon – the great enemy of Sir Edward Coke) who held that humans were not moral agents, and it was the position of Chief Justice Sir John Holt and the other “Old Whigs” of the Glorious Revolution of 1688.
Sir William Blackstone’s doctrine of Parliamentary Sovereignty destroys this Whig foundation stone of liberty – destroys it utterly. Blackstone might pay lip service to the principles of natural law, the legal principles of Cicero and the view of humans as moral agents of Aristotle, but his doctrine of Parliamentary Sovereignty negates them. If the “legislature” can do anything it likes – then liberty is naught, and natural law is just an empty term. Things are reduced to the level of the Roman Empire – where no legal thinker denied, in theory, that liberty and natural law, natural justice – to each his own liberty, existed, but held that positive law, the will of the Emperor, trumped them – which was the same, in practice, as denying that the rights of liberty and property existed at all.
Blackstone may be held up as one of the great Common Law thinkers – but his fundamental conception of law was essentially Roman, and that of the Roman Empire, just with a Parliament in place of an Emperor.
Many Americans, holding to old Whig principles, were profoundly shocked and rejected the principle of Blackstone, and those who held the same view, – but in Britain it carried all before it.
The principle of Blackstone simplified law by holding that, at a fundamental level, law is whatever Parliament and Francis Bacon “lions UNDER the throne” style judges say it is – with no appeal to natural law, natural justice (to each his own – liberty) principles against them.
It also flattered Parliament (Thomas Hobbes had always said that the supreme unlimited ruler could be one person or a group of people – thus hedging his bets in terms of the Civil War by trying to flatter both sides, like Francis Bacon before him, he would be a lickspittle apologist for whoever was in power) – it gave them delusions of grandeur, indeed of infallibility, and made them unwilling to compromise with the American colonists. After all the law was whatever they, Parliament, said it was – they were Gods upon this Earth who could do no wrong. At least that is how his doctrine was, inevitably, interpreted. So war was made inevitable – and with war the division of the English speaking peoples, a division that continues to this day.
The tradition of the Bill of Rights, American or British, runs directly counter to this doctrine of Parliamentary Sovereignty – which is why the British Bill of Rights, oh yes it once existed, is not much talked about any more. What is the point of talking about the right to keep and bear arms – if Parliament can take away this right with a statute? It means that the right, for all practical purposes, is negated. Ditto freedom of speech or anything else. If Parliament wishes to, for example, “redistribute” the property of the Duke of Portland this may be sad – but he has no rights against the “legislature”. As Mark Twain was later to say, but not as PRAISE, that “no man’s life or property is safe when the legislature is in secession” the legislature being the only true “criminal class” in United States – the fact that British opinion would have been shocked by a statement like this in the 19th century shows how much damage the doctrine of Sir William Blackstone and others had done – spread by Victorian legal writers such as Maitland, who pretended (with breath taking dishonesty) that not a single Act of Parliament in history had ever been fundamentally unjust or irrational.
By the 19th century more and more people were starting to use the words “the State” in the same awe struck way that German philosophers had in the time of Frederick the Great and before. The State seen as some sort of God on Earth, with, in this case Parliament, being seen as at least semi divine – infallible.
Sir William Blackstone may not have shared some of the “new”, there are actually ancient precedents for its errors, philosophy that was bubbling up like a witch’s brew in his time – but he opened the door for it. David Hume had made his name by being “sceptical” about everything (whether he really was, or whether it was a performance, to wake people from their dogmatic slumbers, is something I will not try to answer here), even the most obvious self evident things such as the existence of the self (the “I”) as a moral agent. If nothing was secure, if there were no principles that one could “prove”, if even the existence of oneself, as a moral agent free to choose to do otherwise than we do was in doubt, what would step into the chaos? Why the state of course – “the euthanasia of the Constitution” the end of “Whig”, Old Whig, principles. This philosophy horrified some Tories – such as Dr Johnson, who expressed his horror when someone said to him that both he and David Hume were Tories. Dr Johnson believed in the principles of Church and King because he believed they were true, objectively true, not because he believed that nothing was objectively true – that is why the Tory Dr Johnson was more of a friend of the Old Whig Edmund Burke than he was of political “allies” such as David Hume.
Jeremy Bentham, and the rest of the “Bowood Circle” of Lord Shelborne (Lord Shelborne, Sir William Petty kinsman of that other Sir William Petty – the friend of Thomas Hobbes, who wanted to mathematically “plan” Ireland in totalitarian fashion) had nothing but contempt for the principles of the Old Whigs – which were “nonsense on stilts”.
13 departments of State should control most aspects of life, according to Bentham – in this way the “greatest happiness of the greatest number” would be achieved, and pleasure and pain (not traditional right and wrong) should be the only guides to policy. If wickedness produced more “pleasure” than “pain” then it was not evil it was good – so if, according to Bentham, control of most aspects of life via 13 departments of State produced more pleasure than pain then it was to be done – and no silly “old rights” allowed to stand against it. The interests of “the people” trumped the silly (indeed “nonsense on stilts”) old rights of individual persons. The fact that this is a “category mistake” that, for example, one does not work out whether rape or gang rape is morally wrong by sitting down with a “calculator of pleasure and pain” to try and work out if the pleasure of the rapist or rapists was greater or lesser than the pain of the victim, escaped Jeremy Bentham. He made the elementary mistake, which would be shameful even in a young child, of mistaking “good” as in pleasure, with “good” as in moral (as they are the same word they must mean the same thing – NO THEY DO NOT). Just because it may be pleasant to torture someone to death it does not mean that it is morally good to torture someone to death – and this has nothing to do with the pain of the victim being greater than the pleasure of the murderer.
This is the principle of the French Revolution, of Rousseau – not of the Old Whig American Revolution. It is why the French Revolutionaries did not believe that their murdering, plundering, rape and other crimes were crimes at all – as the “welfare of the people” trumped, negated, everything else.
And the belief of Bentham and others in intellectual government administrators taking control of various aspects of Civil Society harks back to Sir William Petty and Francis “The New Atlantis” Bacon, and may even have been foreshadowed by Thomas Cromwell in the reign of Henry VIII – although his schemes, on education and so on, came to naught.
The “liberals” who followed Bentham, there were other factions of liberals of course, included people such as James and John Stuart Mill who endorsed the views on land of David Ricardo, which led to people attacking the rights of property – down with the Duke of Portland and other “Old Whigs” I bet he did not “justly acquire” his property, and he expects rent and rent is evil. This view was refuted by Frank Fetter a century ago, but one still hears it – just as one still hears demands that the state expand the money supply to maintain a “stable price level” as if Frank Fetter had never refuted Irving Fisher (let alone the absurd Lord Keynes).
And there was the Labour Theory of Value, also an interpretation of Ricardo, that holds that factory workers and so on are “exploited” – if private landed estates are, somehow, wrong and large scale non-landed property (factories and so on) are also, somehow, wrong – then the old Whig principles have been utterly destroyed there is nothing left, apart from empty chanting of the words “freedom” and “liberty” (as “liberals” still do today) based on no foundations, philosophical or other.
Of course there is a good side to both James Mill and to John Stewart Mill – but there is also a bad side, a very bad side. And it must not be hidden away – because it did great damage.
A liberal of the 19th century “Westminster Review” type (not other types) may have hoped if nothing is objectively true then there is no justification for state attacks on liberty, and may have held that denying everything, including selfhood, is the ultimate freedom – but, in reality, someone who believes that nothing is objectively true is likely to seek the STATE to fill the void (the “myth” of William James, Sorel or Mussolini). Besides the state NATURALLY expands (those who have power seek to use it – the “Dark Side” tempts them) – and if there are no principles to oppose them with……….
And Sir William Blackstone, whatever his intentions were, has in practice helped get rid of the principles limiting the state – by getting rid of all principles limiting Parliament.
“Ah but Paul – Blackstone trusted Parliament to limit the state” – then he was profoundly foolish and also ignorant, not understanding the typical nature of such statutes as the one that Sir Edward Coke struck down in “Dr Bonham’s Case” – where it was held that someone practicing a trade without a piece of paper called a “license” could not be a crime, because it was not aggression against anyone. The fact that the “Royal College” had both King and Parliament backing it, being irrelevant. If this is a crime whose person or possessions has Mr Bonham attacked? He has attacked no one – so him not buying a “license” CAN NOT be a crime.
Ditto the “Stature of Labourers”, seeking to enforce serfdom, and a thousand other wicked, and unlawful, statutes of Parliament.
But it is more than this – the decline of the respect for Parliament, and there has been such a decline, has not led to the restoration of the principles of the Old Whigs – far from it.
The worship, and “worship” is the right word, has been transferred from Parliament and Congress, Prime Ministers and Presidents – to an ideal state, the public power, “the people” which will impose “Social Justice” (the opposite of real justice – to each their own). Modern “political philosophers” say that they DO believe in liberty, in freedom against elected politicians – but, it turns out, that their “rights” are like the “rights” of the French Revolution, under the mask of “freedom” terrible tyranny, plundering and murder. The words “freedom” and “liberty” chanted endlessly – but divorced from their foundations.
When American judges, and the university class generally- the Harvard Law School, the Imperial German loving Johns Hopkins, the Frankfurt School of Marxism Columbia and on and on, first started to turn against the Old Whig principles of the Founding Fathers they first held that rights and natural law were nonsense (perhaps nonsense “on stilts”) – beasts such as “Justice” O.W. Holmes jr were open friends of Harold Laski and other totalitarians, they held (Buck V Bell) that a screaming woman, who had committed no crime, could be held down and cut up by the servants of the state – because they judged her to be “inferior”. But at least such beasts did not pretend to serve “freedom” “liberty” – they were open followers of Thomas Hobbes and other such creatures.
This sort of “judge” did not, for example, in the gold confiscation and voiding of contracts cases of 1935, hold that they were serving “liberty” and “freedom” when they tore up the Constitution of the United States.
Today Blackstone may be discredited – few would pretend that Parliament, or any other institution of government can do anything it likes. But the Old Whig principles that he helped to undermine have not returned – instead the forces of evil (for that is what they are) have taken the words “freedom” and “liberty” for themselves, and use them to force politicians to expand statism (tyranny) even when they do not wish to do so.
The book shelves groan with books on legal thought that seek to twist the concept of liberty 180 degrees – using it as a justification to destroy liberty, to expand the size and scope of government. The “intellectuals” can get away with this because the old principles have been forgotten – even the very word “right” is no longer understood to be a limitation on government power (under the natural law principle of to each their own – as the late Ayn Rand put it “hands off”), rather a “right” is now seen as an invitation for government to intervene – to enforce “anti discrimination” doctrine (that to “discriminate” is another way of describing freedom of choice, the right to associate or refuse association, is forgotten) and to give people their “rights” to goods and services at the FORCED expense of others.
This is because the old principles are out of sight and forgotten – and, however good his intentions may have been, Sir William Blackstone was one of the people who started to bury them.