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

Published online by Cambridge University Press:  24 April 2015

William S. Brewbaker III
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Sir William Blackstone's Commentaries on the Laws of England is arguably the single most influential work of jurisprudence in American history. Written in the late eighteenth century, it regularly appeared in American law school classrooms up until the early part of the twentieth century, when ridiculing Blackstone and the Commentaries became a part of legal academic orthodoxy and the influence of the Commentaries waned. Blackstone eventually became the poster child for everything that the realists and their descendants thought was wrong with American law—formalism, natural rights and plutocracy.

Both Blackstone's admirers and his detractors have devoted significant attention to his famous account of judging, which holds that judges find (or declare) law rather than make law. In the introduction to the Commentaries, Blackstone states that the judge's job is to determine the law “not according to his own private judgment, but according to the known laws and customs of the land;” the judge is “not delegated to pronounce a new law, but to maintain and expound the old one.” One reason Blackstone's account has been attractive in some quarters is because it supplies apparent answers to a number of problems raised by the idea of judge-made law. If judges merely find and apply authoritative law, their decisions presumptively carry the authority of the law they are applying. Because the law pre-exists the decision, the specter of retroactive liability disappears.

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Articles
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Journal of Law and Religion , Volume 22 , Issue 1 , 2006 , pp. 255 - 286
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Copyright © Center for the Study of Law and Religion at Emory University 2006

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References

1. See e.g. Boorstin, Daniel J., The Mysterious Science of the Law 3–4 (U. Chi. Press 1941)Google Scholar (characterizing the Commentaries the “bible of American lawyers” during the days of the early Republic). Boorstin nevertheless does not think much of Blackstone: “Blackstone was not a rigorous thinker, and his work does not rank with the great books which demonstrate the nicest intricacies of the mind of man.” Id. at 189.

Nevertheless, Blackstone is not without his defenders, even in academically respectable circles. Albert Alschuler has argued persuasively that Blackstone's treatment at the hands of his critics has been less a critique than a caricature. See Alschuler, Albert W., Rediscovering Blackstone, 145 U. Pa. L. Rev. 1 (1996)CrossRefGoogle Scholar. There is other evidence that Blackstone's reputation may be recovering slightly. See e.g. Rose, Carol M., Canons of Property Talk, or Blackstone's Anxiety, 108 Yale L.J. 601 (1998)CrossRefGoogle Scholar; Cross, Rupert, Blackstone v. Bentham, 92 L. Q. Rev. 516 (1976)Google Scholar; Prest, Wilfrid, Blackstone as Architect: Constructing the Commentaries, 15 Yale J.L. & Humanities 103 (2003)Google Scholar; Berman, Harold J. & Reid, Charles J. Jr., The Transformation of English Legal Science: From Hale to Blackstone, 45 Emory L.J. 437, 489–497 (1996)Google Scholar; Storing, Herbert J., William Blackstone, in History of Political Philosophy 622–634 (Strauss, Leo & Cropsey, Joseph eds., 3d ed., U. Chi. Press 1987)Google Scholar; Milsom, S.F.C., The Nature of Blackstone's Achievement, 1 Oxford J. Leg. Stud. 1 (1981)CrossRefGoogle Scholar.

Blackstone did not subscribe to the “brooding omnipresence” theory of law or suggest that natural law provided a basis from which judges could deduce answers to complex legal questions. His accounts of property rights and the relationship between the individual and the community are also more complex than they are usually portrayed. Alschuler, supra at 19-36, 44-54. Alschuler also argues that Blackstone presented the declaratory theory “with a wink and a nod.” See id. at 37.

2. See e.g. Skinner, Stephen, Blackstone's Support for the Militia, 44 Am. J. Legal Hist. 1 (2000)CrossRefGoogle Scholar:

Blackstone himself has not been treated gently by posterity, being described as a failure at the bar at the outset of his career and an inadequate judge at the end. He has been described as “not a particularly successful politician” during his time in Parliament, while as a lecturer he has been said to have been “by no means a scientific jurist” having “only the vaguest possible grasp of elementary conceptions of law.” Moreover his Commentaries have been criticised for unoriginality and even plagiarism. However, attention has never wandered far from Blackstone's work, and various studies have focused on the Commentaries as both a legal source and an object of critical study, all the more so in recent analyses of eighteenth-century legal thought.

Id. at 1-2 (notes omitted). As early as 1840, the English humor magazine Punch published a series of satirical articles on the Commentaries later published (and recently republished) as the book A'Beckett, Gilbert, A'Beckett, Arthur & Furniss, Harry, The Comic Blackstone (new & rev. ed., Ashford 1985) (1998)Google Scholar. See Lockmiller, David A., Sir William Blackstone 158 (U. N.C. Press 1938) (P. Smith 1970)Google Scholar.

3. Blackstone was also attacked by the realists' forebears—most famously by Jeremy Bentham and John Austin. See generally Bentham, Jeremy, A Fragment on Government and an Introduction to the Principles of Morals and Legislation (Harrison, Wilfrid ed., 2d prtg., Basil Blackwell 1967)Google Scholar (critique of the Commentaries); Bentham, Jeremy, Anarchical Fallacies, in The Collected Works of Jeremy Bentham vol. 2, 501 (Oxford U. Press 1983)Google Scholar (characterizing natural rights as “nonsense upon stilts”); Austin, John, The Province of Jurisprudence Determined and the Uses of the Study of Jurisprudence 184–187 (1832) (Berlin, Isaiah, Hampshire, Stuart, Wollheim, Richard eds., Weidenfeld & Nicolson 1955)Google Scholar. It has been argued that the realists and crits are opposed to positivism, in which case it might be wrong to characterize Bentham as a forebear. See e.g. Standen, Jeffrey A., Critical Legal Studies as an Anti-Positivist Phenomenon, 72 Va. L. Rev. 983 (1986)CrossRefGoogle Scholar; but see Berman, Harold J., Toward an Integrative Jurisprudence: Politics, Morality, History, in Faith and Order: The Reconciliation of Law and Religion 289, 291, n. 2 (Scholars Press 1993)Google Scholar (arguing that the realists and the positivists share the same definition of law).

4. See generally Kennedy, Duncan, The Structure of Blackstone's Commentaries, 28 Buff. L. Rev. 205 (1979)Google Scholar. Kennedy characterizes the Commentaries as:

quite patently attemp[ing] to “naturalize” purely social phenomena. They restate as “freedom” what we see as servitude. And they cast as rational order what we see as something like chaos …. [C]ritics have linked these traits … to Blackstone's desire to legitimate the legal status quo of the England of his day.

Id. at 211. But cf. Blackstone, William, Commentaries on the Laws of England vol. 2, 11 (U. Chi. Press 1979)Google Scholar (arguing that the right of inheritance is not a natural right but is a “political establishment” based on “long and inveterate custom”).

5. Blackstone, supra n. 5, at vol. 1, 69.

6. It may not be inconsistent with some conceptions of democracy, particularly if judges are elected or legislators are free to change judge-made rules.

7. Marbury v. Madison, 5 U.S. 137, 177 (1803). (“It is emphatically the province and duty of the judicial department to say what the law is.”).

8. See Hoadly, Benjamin, The Nature of the Kingdom, or Church, of Christ: A Sermon Preach'd before the King, at the Royal Chapel at St James, on Sunday March 31, 1717, at 12 (William Bradford 1717)Google Scholar (“[W]hoever hath an absolute authority to interpret any written, or spoken Laws; it is He, who is truly the Law-Giver, to all Intents and Purposes; and not the Person who first wrote, or spoke them.”). John Chipman Gray quotes Hoadly's sermon in the course of arguing that the law can be reduced to “the rules by which the courts decide cases.” Gray, John Chipman, The Nature and Sources of Law 102 (Gray, Roland ed., 2d ed., MacMillan Co. 1921)Google Scholar.

9. See e.g. Titus, Herbert W., God, Man and Law: The Biblical Principles 41-47, 53-56, 62 (Inst. Basic Life Principles 1994)Google Scholar; Whitehead, John W., The Second American Revolution 30-32, 47–49 (David C. Cook Publg. Co. 1982)Google Scholar; Stern, Craig A., The Common Law and the Religious Foundations of the Rule of Law Before Casey, 38 U.S.F. L. Rev. 499, 509–511 (2004)Google Scholar. A well-known contemporary exponent of Blackstone's declaratory theory is former Alabama Chief Justice Roy Moore. See generally Moore, Roy & Perry, John, So Help Me God: The Ten Commandments, Judicial Tyranny, and the Battle for Religious Freedom (Broadman & Holman 2005)Google Scholar.

10. See infra n. 64.

11. See Noll, Mark A., The Scandal of the Evangelical Mind 67–76 (William B. Eerdmans Publg. Co. 1994)Google Scholar (arguing that American evangelical political thought was influenced by a republican theory of politics, a democratic understanding of society, and a liberal view of the economy).

12. As Alschuler notes, American lawyers and politicians found much to criticize in the Commentaries. Alschuler, supra n. 1, at 8-14. Indeed, Robert Cover has observed that St. George Tucker's American edition of Blackstone “was not only a publication of the Blackstone text but also an engagement of it in combat.” Id. at 12.

13. This law of nature, being co-eval with mankind and dictated by God himself, is of course superior in obligation to any other. It is binding over all the globe, in all countries, and at all times: no human laws are of any validity, if contrary to this; and such of them as are valid derive all their force, and all their authority, mediately or immediately, from this original.

Blackstone, supra n. 4, at vol. 1, 41.

14. And if our reason were always, as in our first ancestor before his transgression, clear and perfect, unruffled by passions, unclouded by prejudice, unimpaired by disease or intemperance, the task would be pleasant and easy; we should need no other guide but this. But every man now finds the contrary in his own experience; that his reason is corrupt, and his understanding full of ignorance and error.

Id.

15. [D]ivine providence; … in compassion to the frailty, the imperfection, and the blindness of human reason, hath been pleased … to discover and enforce it's [sic] laws by an immediate and direct revelation. The doctrines thus delivered we call the revealed or divine law, and they are to be found only in the holy scriptures. These precepts, when revealed, are found upon comparison to be really a part of the original law of nature, as they tend in all their consequences to man's felicity. But we are not from thence to conclude that the knowledge of these truths was attainable by reason, in it's [sic] present corrupted state; since we find that, until they were revealed they were hid from the wisdom of ages …. Yet undoubtedly the revealed law is (humanly speaking) of infinitely more authority than what we generally call the natural law. Because one is the law of nature, expressly declared to be by God himself; the other is only what, by the assistance of human reason, we imagine to be that law. If we could be as certain of the latter as we are of the former, both would have an equal authority; but, till then, they can never be put in any competition together.

Id. at 41-42.

16. Cf. Gray, supra n. 8, at 219-232 (criticizing Blackstone in light of judicial lawmaking).

17. Not surprisingly, the Christian theology of creation has long been a point of engagement between scientists and theologians. See e.g. Augustine, , The City of God against the Pagans 449–497 (426) (Dyson, R.W. ed., Cambridge U. Press 1998) (originally published 426)Google Scholar.

18. Orthodox Christianity entails belief in a personal God who brought this world, and not another, into being. Nothing, however, in the account of creation set forth in this Article (so far as I am aware) turns on one's acceptance or rejection of evolutionary theory. But cf. Titus, supra n. 9, at 3-15; Whitehead, supra n. 9, at 46-48 (arguing that evolutionary theory has had a negative influence on law).

19. See e.g. Finnis, John, The Truth in Legal Positivism, in The Autonomy of Law: Essays on Legal Positivism 195–214 (George, Robert P. ed., Oxford U. Press 1996)Google Scholar (analyzing Aquinas' characterization of positive law as a human creation in key respects).

20. I use human law interchangeably with positive or municipal law, as distinguished from divine law or natural law.

21. I do not address statutory and constitutional interpretation, which present important, though not unrelated, additional questions.

22. A full theological account of judging, much less of law generally, would have to consider not only the theology of creation, but also other important features of Christian doctrine such as redemption, the human person, eschatology, the meaning of Israel's theocracy, hermeneutics, etc. For a recent full-orbed evangelical political theology, see generally O'Donovan, Oliver, The Desire of the Nations: Rediscovering the Roots of Political Theology (Cambridge U. Press 1996)Google Scholar; O'Donovan, Oliver, The Ways of Judgment: The Bampton Lectures, 2003 (William B. Eerdmans Publg. Co. 2005)Google Scholar.

23. The obvious question is where the prior judge(s) “found” the law that is merely “applied” in the case. Note, however, that this problem is not necessarily solved even where the judge is applying a democratically-enacted statute in an easy case. The question remains: What gives the statute authority? The latter question is not usually asked because our commitment to democracy is often uncritical (this is not to say unfounded). See O'Donovan, The Desire of the Nations, supra n. 22, at 20 (arguing that accounts of political authority should focus on political acts rather than institutional structure).

24. See e.g. Verna v. Links at Valleybrook Neighborhood Assn. Inc., 852 A.2d 202, 205 (N.J. Super. App. Div. 2004)Google Scholar (case involving three matters of first impression in New Jersey):

(a) whether a homeowners association, having previously ceded jurisdiction of its streets to a municipality, retains the authority to enforce its own parking regulations, (b) whether such an association's board of directors exceeds its authority to conduct elections when it issues a “candidate audit” advising unit owners which of the candidates were members in “good standing,” and (c) whether, when asserting a defamation claim, a candidate for election to an association's board of directors should be considered a “public figure.”

25. See e.g. DeGennaro v. Tandon, 873 A.2d 191 (Conn. App. 2005) (whether health care provider is obligated to disclose provider-specific risks in addition to the ordinary risks accompanying a given procedure).

26. These are strengths which, as I have suggested, need not be entirely absent in a Made Law theory. See Finnis, supra n. 19, and accompanying text.

27. “The common law is not a brooding omnipresence in the sky, but the articulate voice of some sovereign or quasi sovereign that can be identified …” S.P. Co. v. Jensen, 244 U.S. 205, 222 (1917) (Holmes, J., dissenting); see also Linkletter v. Walker, 381 U.S. 618, 622-624 (1965) (contrasting Blackstone's declaratory theory with John Austin's account of interstitial judge-made law).

28. Blackstone, supra n. 4, at vol. 1, 67.

29. Id. at 69.

30. Id. at 69.

31. Id.

32. Matters that are “indifferent” are neither good nor bad in themselves. The Oxford English Dictionary Online indifferent, a.1, def 17, http://dictionary.oed.com/cgi/entry/501153087query_type=word&queryword=indifferent&first=1&max_to_show=10&sort_type=alpha&result_place=1&search_id=EvzV-EIDFAO-7557&hilite=50115308 (Oxford U. Press 2006) (1989)Google Scholar.

33. Blackstone, supra n. 4, at vol. 1, 69.

34. Id. at 69-70.

35. Id. at 70.

36. Id. at 38-62.

37. Id. at 63-92.

38. But cf. § 2:

Upon these two foundations, the law of nature and the law of revelation, depend all human laws; that is to say, no human laws should be suffered to contradict these. There is, it is true, a great number of indifferent points, in which both the divine law and the natural leave a man at his own liberty; but which are found necessary for the benefit of society to be restrained within certain limits. And herein it is that human laws have their greatest force and efficacy; for, with regard to such points as are not indifferent, human laws are only declaratory of, and act in subordination to, the former. To instance in the case of murder: this is expressly forbidden by the divine, and demonstrably by the natural law; and from these prohibitions arises the true unlawfulness of this crime. Those human laws, that annex a punishment to it, do not at all increase it's [sic] moral guilt, or superadd any fresh obligation in foro conscientiae to abstain from it's [sic] perpetration …. But with respect to matters that are in themselves indifferent, and are not commanded or forbidden by those superior laws; … here the inferior legislature has scope and opportunity to interpose, and to make that action unlawful which before was not so.

Id. at 42-43. See also id. at 54-55, where Blackstone argues that in the case of legislation prohibiting crimes mala in se,

the legislature … acts only … in subordination to the great lawgiver, transcribing and publishing his precepts. So that, upon the whole, the declaratory part of the municipal law has no force or operation at all, with regard to actions that are naturally and intrinsically right or wrong.

39. See e.g. Blackstone's treatment of inheritance rights and marital property. In both cases, he says that English custom, while permissible, is not based on natural right. Indeed, in connection with inheritance law, he notes that “we often mistake for nature what we find established by long and inveterate custom.” Id. at vol. 2, 11. See also id. at vol. 1, 55 (marital property laws and offense of monopolization not grounded in nature). See also Alschuler, supra n. 1, at 37-43 (noting Blackstone's emphasis on the historical origins of legal doctrines and his openness to legal reform).

40. Blackstone, supra n. 4, at vol. 1, 69.

41. Id.

42. See Berman, Harold J., Law and Revolution, II 299 (Belknap Press 2003)CrossRefGoogle Scholar. Berman describes the methodology of Newtonian science as follows:

Newton stated that his method of investigation of the laws governing gravity and other active forces in nature involved three major steps: (1) the derivation of general principles (“laws”) from empirical evidence, (2) the extension of those principles by mathematical procedures, and (3) the deduction of as yet unaccounted for facts from the general statement of the theory.

See also Boorstin, supra n. 1, at 12 (“Blackstone was, in a sense, doing for the English legal system what Newton had done for the physical world, and what Locke had done for the world of the mind.”). There is only a little textual support for this view. In § 1 of the Introduction to the Commentaries, Blackstone's inaugural lecture as Vinerian professor is reproduced. In it, he speaks of “the science … committed to his [Blackstone's] charge, to be cultivated, methodized, and explained …,” Blackstone, supra n. 4, at vol. 4, and urges students to “lay the foundation of his future labours in a solid scientifical method,” id. at 34. In discussing the law of property, he notes that while society is better off if the “mass of mankind” abstains from “scrutinizing too nicely” into the origins of private property, “when law is to be considered not only as matter of practice, but also as a rational science, it cannot be improper or useless to examine more deeply the rudiments and grounds of these positive constitutions of society.” Id. at vol. 2, 2. There is no explicit indication of a scientific approach in the general discussion of the common law of England that occupies § 3 of the Introduction. Implicitly, however, one might glean an attempt to provide an orderly, “scientific” understanding from the taxonomical organization of § 3. On the organization of the Commentaries, see generally Watson, Alan, The Structure of Blackstone's Commentaries, 97 Yale L.J. 795 (1988)CrossRefGoogle Scholar (explaining the historical roots of the Commentaries' organizational structure).

43. Id.

44. Sir Matthew Hale provides an additional reason the decisions of the courts cannot be the law, although it does not square so well with Newtonian science:

The decisions of courts of justice … do not make a law properly so-called (for that only the King and Parliament can do); yet they have a great weight and authority in expounding, declaring, and publishing what the law of this kingdom is, especially when such decisions hold a consonancy and congruity with resolutions and decisions of former times, and though such decisions are less than a law, yet they are a greater evidence thereof than the opinion of any private persons, as such, whatsoever.

Hale, Matthew, History of English Law 56 (London 1739)Google Scholar, quoted in Berman, supra n. 42, at 274.

45. Id. at vol. 1, 64 (legal customs “receive their binding power, and the force of laws, by long and immemorial usage, and by their universal reception throughout the kingdom.”); see also id. at 67:

[I]n our law the goodness of a custom depends on it's [sic] having been used time out of mind; or, in the solemnity of our legal phrase, time whereof the memory of man runneth not to the contrary. This is it that gives it it's [sic] weight and authority; and of this nature are the maxims and customs which compose the common law … of this kingdom.

46. Id. at vol. 1, 69.

47. Id. at 70.

48. Id. at 54-55. Blackstone also draws an analogy between the decisions of English judges and rescripts issued by the emperor in doubtful cases under the civil law system. See id. at 71. Rescripts, once issued, became part of the law applied in future cases, see id. at 58-59. Blackstone disapproved of both the procedure of issuing rescripts and of their status as authority in subsequent cases. Id.

49. Id. at 71.

50. Id. at 69-70. The passage is worth quoting in full:

For it is an established rule to abide by former precedents, where the same points come again in litigation; …. Yet this rule admits of exception, where the former determination is most evidently contrary to reason; much more if it be contrary to the divine law. But even in such cases the subsequent judges do not pretend to make a new law, but to vindicate the old one from misrepresentation. For if it be found that the former decision is manifestly absurd or unjust, it is declared, not that such a sentence was bad law, but that it was not law; that is, that it is not the established custom of the realm, as has been erroneously determined.

Id. (emphasis in original). Alschuler suggests that Blackstone is presenting the declaratory theory “with a wink and a nod.” Alschuler, supra n. 1, at 37. See also id. at 37 n. 197 (noting Blackstone's use of “pretend” and suggesting that Blackstone could be read to suggest that the common law judges pretended not to change the law even when they did so); cf. Storing, supra n. 1 (Straussian reading of Blackstone).

51. Cf. Blackstone, supra n. 4, at vol. 1, 69 (referring to the resolution of “uncertain and perhaps indifferent” cases by courts); cf. id. at 55: “[T]hings in themselves indifferent … become either right or wrong, just or unjust, duties or misdemeanors, according as the municipal legislator sees proper, for promoting the welfare of the society, and more effectually carrying on the purposes of civil life.”

52. In the absence of precedent, the judge's decision is entitled to deference as long as it is not “contrary to reason … [or] the divine law,” id. at 69-70, as long as it is “not flatly contradictory to reason,” id. at 70, “not manifestly absurd or unjust,” id., and not “repugnant to natural justice,” id. at 71.

In an earlier discussion having more direct application to legislation, Blackstone has said that all human laws depend upon the “foundation [of] the law of nature and the law of revelation …; that is to say, no human laws should be suffered to contradict these.” Id. at 42. He affirms that laws are merely declaratory when they deal with matters covered by the law of nature and the Bible (which he equates elsewhere to natural rights and duties, see id. at 55), but have “their greatest force and efficacy” when they regulate the “great number of indifferent points, in which both the divine law and the natural leave a man at his own liberty; but which are found necessary for the benefit of society to be restrained within certain limits.” Id. at 42. With respect to these indifferent points, the sovereign is free to legislate as it “sees proper, for promoting the welfare of the society, and more effectually carrying on the purposes of civil life.” Id. at 55. The sovereign is, however, required to respect natural rights, which “no human legislature has the power to abridge or destroy.” Id. at 54.

There is, then, a striking parallel between the rights and duties of the legislator and those of the judge. With respect to matters covered by natural and divine law (natural rights and duties), the sovereign's power is limited to the declaration of law, and positive enactments cannot alter these preexisting rights and duties: the legislature “acts … in subordination to the great lawgiver, transcribing and publishing his precepts.” Id. at 54. The legislature's acts only have any real effect when they operate in the realm of “indifferent” matters, in which case they must be made with a view to the welfare of the society and not contradict natural rights and duties—i.e., they must not be contrary to reason or the divine law. Otherwise, the sovereign is free to do as it sees best. Even though Blackstone denies that judges make law, judges operating in a precedent-free zone have the same lawmaking authority legislators do.

53. One suspects Blackstone is aware of the incoherence. He notes that when courts make decisions in uncharted territory, the precedent is to be followed “because the law in that case being solemnly declared and determined, what before was uncertain, and perhaps indifferent, is now become a permanent rule.” Id. at 69 (emphasis added).

54. See id. at 55.

55. A nineteenth-century parody of the Commentaries that appeared in Punch was not so reluctant:

The judges decide what is a custom and what is not. They, in fact, make the law, by saying what it means; which, as it is scarcely ever means what it says, opens the door to much variety. “Variety is charming,” according to the proverb; and the study of law must, on this authority, be regarded as one of the most fascinating of occupations. “Law is the perfection of reason,” say the lawyers; and so it is, when you get it; but if a judge makes a decision that is manifestly absurd or unjust, it is declared not to be law—for “what is not reason,” say the lawyers, “is not law:” a maxim which, if acted upon, would have the effect of condensing the law most materially, or perhaps exterminating it altogether.

A'Beckett, supra n. 2, at 25.

56. On the respective places of Scripture, reason, and tradition in evangelical theology, see generally Mathison, Keith A., The Shape of Sola Scriptura (Canon Press 2001)Google Scholar.

57. One can also imagine a version of the declaratory theory holding that legal reasoning may admit of more than one answer, even as it rules others out-of-bounds. See infra Part IV.

58. Blackstone actually seems skeptical about placing too much reliance on the judge's moral sense. In the realm of moral knowledge he holds that “undoubtedly the revealed law is (humanly speaking) of infinitely more authority than what we generally call the natural law. Because one is the law of nature, expressly declared to be so by God himself; the other is only what, by the assistance of human reason, we imagine to be that law.” Blackstone, supra n. 4, at vol. 1, 42. He also emphasizes precedent and custom, both of which are “facts” that exist outside the realm of the judge's opinion. See id. at 69.

59. Blackstone's connection of the theory with English law rather than law in general suggests as much.

60. Interestingly, Blackstone's argument is double-edged. The legitimacy of judicial decisions is made to depend on their objectivity—the law's originating outside the judge. Accordingly, there is an assumption that the decisions of the judicial “oracles” represent the discovery of the law. The emphasis on precedent is entirely consistent with this approach, but it also rests on other grounds—the need for stability and the restraint of future judges. See id. On the other hand, the idea that the decisions are not law but merely evidence of the law preserves the flexibility necessary to make needed corrections, even as it implicitly casts doubt on the legitimacy of the judge-made law. If we obey the judges not because of what they decide but because they are “oracles” of law that is outside themselves, their capacity for error is a disturbing development.

61. Blackstone, supra n. 4, at vol. 1, 41-42.

62. See e.g. Exod 20:1-17; Mouw, Richard J., The God Who Commands (U. Notre Dame Press 1990)Google Scholar.

63. See Noll, supra n. 11, at 149-177 (presenting a brief history of American evangelical reflection on politics). Noll also argues that evangelicals have been influenced by the Scottish Enlightenment's assumptions that “all humans possess[], by nature, a common set of capacities— both epistemological and ethical—through which they [can] grasp the basic realities of nature and morality.” Id. at 85; see id. at 83-107 (tracing the development of evangelical thought).

64. See Siegel, Stephen A., John Chipman Gray and the Moral Basis of Classical Legal Thought, 86 Iowa L. Rev. 1513, 1515 (2001)Google Scholar (describing movement at Harvard to secularize law and Langdell's leadership).

65. I have argued here that although Blackstone endorses natural law and divine law and connects law's authority to them, he does not view the task of the judge deciding a case as to search for an unwritten “law behind the law.” See supra text accompanying nn. 36-39. Other proponents of the declaratory theory, such as Justice Story, however, are often read to characterize the judge's task as searching for the true unwritten principles of this law:

In the ordinary use of language, it will hardly be contended, that the decisions of courts constitute laws. They are, at most, only evidence of what the laws are, and are not, of themselves, laws …. In all the various cases, which have hitherto come before us for decision, this court have uniformly supposed, that the true interpretation of the 34th section [of the Judiciary Act of 1789] limited its application to state laws, strictly local, that is to say, to the positive statutes of the state, and the construction thereof adopted by the local tribunals, and to rights and titles to things having a permanent locality, such as the rights and titles to real estate, and other matters immovable and intra-territorial in their nature and character. It never has been supposed by us, that the section did apply, or was designed to apply, to questions of a more general nature, not at all dependent upon local statutes or local usages of a fixed and permanent operation, as, for example, to the construction of ordinary contracts or other written instruments, and especially to questions of general commercial law, where the state tribunals are called upon to perform the like functions as ourselves, that is, to ascertain, upon general reasoning and legal analogies, what is the true exposition of the contract or instrument, or what is the just rule furnished by the principles of commercial law to govern the case. And we have not now the slightest difficulty in holding, that this section, upon its true intendment and construction, is strictly limited to local statutes and local usages of the character before stated, and does not extend to contracts and other instruments of a commercial nature, the true interpretation and effect whereof are to be sought, not in the decisions of the local tribunals, but in the general principles and doctrines of commercial jurisprudence. Undoubtedly, the decisions of the local tribunals upon such subjects are entitled to, and will receive, the most deliberate attention and respect of this court; but they cannot furnish positive rules, or conclusive authority, by which our own judgments are to be bound up and governed. The law respecting negotiable instruments may be truly declared in the languages of Cicero, adopted by Lord MANSFIELD in Luke v. Lyde, 2 Burr. 883, 887, to be in a great measure, not the law of a single country only, but of the commercial world. Non erit alia lex Romae, alia Athenis; alia nunc, alia posthac; sed el apud omnes gentes, et omni tempore una eademque lex obtinebit.

Swift v. Tyson, 41 U.S. 1, 18-19 (1842). This passage is a good bit more complex than Story's later critics tend to acknowledge. Cf. Guaranty Trust Co. v. York, 326 U.S. 99, 102 (1945):

Law was conceived as a ‘brooding omnipresence’ of Reason, of which decisions were merely evidence and not themselves the controlling formulations. Accordingly, federal courts deemed themselves free to ascertain what Reason, and therefore Law, required wholly independent of authoritatively declared State law ….

(Frankfurter, J.).

66. See for example John Chipman Gray's famous attack on the declaratory theory. See Gray, supra n. 8, at 96-104, 219-232.

67. The Westminster Confession of Faith IV, 1 (1646) (available at http://www.pcanet.org/general/cof_contents.htm)Google Scholar. The Reformers and the Catholic Church were in substantial agreement with respect to the doctrine of creation. See Muller, Richard A., The Unaccommodated Calvin: Studies in the Foundation of a Theological Tradition 39 (Oxford U. Press 2000)Google Scholar:

[T]he Reformation altered comparatively few of the major loci of theology: the doctrines of justification, the sacraments, and the church received the greatest emphasis, while the doctrines of God, the trinity, creation, providence, predestination, and the last things were taken over by the magisterial Reformation virtually without alteration.

Within Christian circles, the most controversial feature of this paper's discussion of creation may be its emphasis on a particular understanding of creation's contingency. See infra Part III. A.

68. The doctrine of creation ex nihilo “affirms that God in creating the world relied on nothing outside himself.” Gunton, Colin E., The Triune Creator 9 (William B. Eerdmans Publg. Co. 1998)Google Scholar.

69. This refers to “the continuing action of God in upholding and directing the world he has made, and his action in completing that which was once begun.” Id. at 88. More simply put, the creation of the world, once begun, took time.

70. These elements continued to be emphasized in both Protestant and Catholic teaching. See e.g. The Catechism of the Catholic Church (pt. 1, § 2, ch. 1, art. 1,¶ 4, subpara. 290–292 (2d ed., Libreria Editrice Vaticana 1994)Google Scholar (creation is the work of the Trinity); id. at subpara. 293-294 (purpose of creation is the manifestation of God's glory); id. at subpara. 296-298 (creation ex nihilo); id. at subpara. 279 (creator of all things, visible and invisible); id. at subpara. 299 (goodness of creation). Interestingly, the temporal extension of creation does not appear to be emphasized in the Catholic Catechism.

71. Gunton, supra n. 68, at 9.

72. Id.

73. Id.

74. Id.

75. Id. at 10. According to Gunton:

“Contingent” has a number of distinct but related meanings. In the first, we say that the created order is contingent because it is dependent on God for its being. In that sense, there is little disagreement between different versions of the theology of creation. In the second, it is contingent because it happens to be the world that there is, but might not have been created, or might be otherwise than it is. This is an implication of voluntarism and an encouragement to [modern] science because it focuses questions on what is actually there rather than on what is ideally true. The third sense, which is closely related, is … that because the structures of reality happen to be what they are …—in order to understand the workings of the world one is bound to explore its actual material regularities rather than enquire into its underlying rational structures, as is the tendency of all Greek thought, Aristotle's included.

Id. at 113.

76. “Make yourself thoroughly, intuitively, master of the exceeding difficulties of admitting a one Ground of the Universe (which, however, must be admitted) and yet finding room for anything else.” Samuel Taylor Coleridge, Letter dated April 1818, quoted in Gunton, Colin E., The One, The Three and The Many: God, Creation and the Culture of Modernity 21 (Cambridge U. Press 1993)CrossRefGoogle Scholar.

77. Cf. Leff, Arthur Allen, Unspeakable Ethics, Unnatural Law, 1979 Duke L.J. 1229, 1229:CrossRefGoogle Scholar “What we want, Heaven help us, is to be perfectly ruled and perfectly free, that is, at the same time to discover the right and the good and to create it.”

78. See generally Fuller, Lon L., The Morality of Law 33–94 (rev. ed., Yale U. Press 1969)Google Scholar.

79. See e.g. Hart, H.L., The Concept of Law 50–78 (2d ed., Oxford U. Press 1994)Google Scholar.

80. Made Law theories arguably enhance the freedom of the ruled because they facilitate scrutiny of existing laws by displaying them as human artifacts that are often suboptimal or unjust. On the other hand, the tendency of Made Law accounts to treat justice and individual rights as merely conventional concepts can weaken resistance to oppressive rule. See Blackstone, supra n. 4, at vol. 1, 70; cf. Aquinas, Thomas, Summa Theologia Iallae, Q. 96, art. 4 (trans., Fathers of the English Dominican Province, rev. ed. 1920) (Christian Classics 1981)Google Scholar. (“[A]s Augustine says, a law that is not just, seems to be no law at all.”).

81. See Blackstone, supra n. 4, at vol. 1, 70; cf. Thomas Aquinas, Summa Theologia lallae, Q. 96, art. 4 (“[A]s Augustine says, a law that is not just, seems to be no law at all.”).

82. See e.g. Frank, Jerome, Law and the Modern Mind ch. XII (Coward-McCann, Inc. 1930)Google Scholar (discussing the judging process and urging judges to engage in ventures of self-discovery).

83. See e.g. Llewellyn, Karl N., A Realistic Jurisprudence—The Next Step, 30 Colum. L. Rev. 431 (1930)CrossRefGoogle Scholar (urging a focus on sought-after behaviors and social interests rather than legal rules and remedies).

84. See generally Gen 1:26-28.

85. Gunton, supra n. 75, at 174 (“[S]ide by side have developed a view of the person as essentially indistinguishable from, identical in being with, the non-personal universe, and a view of the person as so discontinuous with the matter of the world as to be an alien within it.”).

86. Cf. O'Donovan, Oliver, Resurrection and Moral Order 52 (2d ed., Wm. B. Eerdmans Publg. Co. 1994)Google Scholar (“Man's monarchy over nature can be healthy only if he recognizes it as something itself given in the nature of things, and therefore limited by the nature of things. For if it were true that he imposes his rule upon nature from without, there would be no limit to it.”).

87. See e.g. White, Lynn Jr., The Historic Roots ofour Ecologie Crisis, 155 Sci. 1203 (1967)CrossRefGoogle Scholar. White's article sparked an enormous and still continuing debate about the relationship between Christianity and our ecological problems. See Bauckham, Richard, God and the Crisis of Freedom 128–133 (Westminster John Knox Press 2002) (citing sources)Google Scholar. Bauckham argues that the Christian tradition may have paved the way for an excessively anthropocentric view of nature but would not have produced it by itself:

The dominant theological interpretation of the dominion in patristic and medieval times in some respects prepared the way for the modern scientific and technological project of conquering nature for human benefit, but it could not itself have provided the ideological support and motivation for that project. Only the significantly new interpretations given to the human dominion in Renaissance humanism and English Baconianism accomplished that. The crucial new elements were the understanding of the human dominion as a historical task, not a static condition of things but a mandate for progressive achievement of mastery over nature, to be accomplished by scientific discovery and technological innovation; the loss of an effective doctrine of creation, such that the human relationship to other creatures as fellow creatures gave way to an exclusively vertical relationship of humans to nature; and the reduction of the value of nature to the purely utilitarian, orientated only to practical human benefit.

Id. at 165. See also Derr, Thomas Sieger, The Challenge of Biocentrism, in Creation at Risk? Religion, Science and Environmentalism 85–116 (Cromartie, Michael ed., William B. Eerdmans Publg. Co. 1995)Google Scholar (defending stewardship as the appropriate metaphor for the relationship between the human person and the created order); but see Bauckham at 168-171 (arguing that stewardship is an excessively anthropocentric concept).

88. O'Donovan, Oliver, Resurrection and Moral Order 52 (2d ed. 1994)Google Scholar. Interestingly, one can detect some similarity between O'Donovan's late-twentieth-century account of dominion and that offered by Sir Matthew Hale.

Hale presupposes that nature left to itself would be chaotic: fierce animals would render the gentler and more useful animals extinct, the earth would be submerged in marsh and overgrown with trees and weeds. The earth needs a superior creature to keep it in order. Humanity's duty is therefore to keep things in balance, to prevent the wilder aspects of nature from creating chaos. Human beings are to control the earth for the earth's sake as well as for their own sake.

Bauckham, supra n. 86, at 170.

89. See Gen 1:26-28.

90. Ps 8:6-8.

91. See Nagle, John Copeland, Christianity and Environmental Law, in Christian Perspectives on Legal Thought 435, 439–440 (McConnell, Michael W., Cochran, Robert F. Jr. & Cannella, Angela C. eds., Yale U. Press 2001)Google Scholar. Images of just political rule and those of appropriate human rule over the environment are reinforcing to some degree. The example of God's own rule over humanity “beliefs] any suggestion that dominion [in the environmental context] equals exploitation.” Id. at 439. Nagle emphasizes Jesus' equation of greatness with servanthood in Matt 20:26-28. See also Young, Richard A., Healing the Earth: A Theocentric Perspective on Environmental Problems and Their Solutions 170–177 (Broadman & Holman 1994)Google Scholar (describing dominion in terms of kingship, servanthood and stewardship). Similarly, seeing the environment through the lens of divine creation arguably creates an emphasis on the continuity between human beings and the rest of the created order. Human beings are no doubt special in the Christian understanding of the world, but humans, plants and animals are together on the same side of the most fundamental theological distinction—that between the self-existent Creator and the world he has made. See infra Part III. C.

92. Id.

93. Deut 17:14-20.

94. Bauckham, supra n. 86, at 174.

95. Admittedly, this is only an analogy, for human rule over other human beings is not committed to human beings generically but rather to those whom God has appointed as “God's servant to do you good.” See Rom 13:4.

96. See O' Donovan, supra n. 22, at 19-22 (arguing that the reign of God should be the starting point for political discourse).

97. Of course, such laws may be particular and mutable and may also be unjust or unwise.

98. Gen 1:31.

99. But cf. Planned Parenthood v. Casey, 505 U.S. 833, 868 (1992), where the Court notes: Like the character of an individual, the legitimacy of the Court must be earned over time. So, indeed, must be the character of a Nation of people who aspire to live according to the rule of law. Their belief in themselves as such a people is not readily separable from their understanding of the Court invested with the authority to decide their constitutional cases and speak before all others for their constitutional ideals. If the Court's legitimacy should be undermined, then, so would the country be in its very ability to see itself through its constitutional ideals. The Court's concern with legitimacy is not for the sake of the Court, but for the sake of the Nation to which it is responsible.

100. See e.g. Exod 31:3-4. I am not suggesting that law can be reduced to technological considerations.

101. See Gunton. supra n. 68, at 41-64 (discussing various theoiogical accounts of mediation).

102. See e.g. Aquinas, Thomas, Summa Theologiae Iallae Q. 93Google Scholar.

103. See Gunton, supra n. 68, at 99-102 (criticizing Aquinas' account of mediation).

104. See e.g. Aquinas, , ST Iallae Q. 90, art. 1Google Scholar (arguing that law is primarily a matter of reason). Recall that for Blackstone, judge-made law depends for its legitimacy on being based on longstanding custom or precedent. It is illegitimate only if it is “most evidently contrary to reason” or contrary to the divine law, Blackstone, supra n. 4, vol. 1, 69-70; otherwise judges and legislators have wide latitude.

105. Matt 28:18.

106. Matt 22:21.

107. 1 Pet 2:17.

108. Acts 5:29.

109. Rom 13:1-4.

110. See supra text accompanying nn. 101 -103.

111. See e.g. O'Donovan, supra n. 22, at 46:

That any regime should actually come to hold authority, and continue to hold it, is a work of divine providence in history, not a mere accomplishment of the human task of political service …. Behind every historically successful regime, there is the divine regime of history. The continuity achieved by the one presupposes the operation of the other, because it does not lie within the power of political orders to secure the social conditions for their own indefinite prolongation ….

(emphasis omitted).

112. For a regretful account of the emphasis the Christian right has placed on politics, see Thomas, Cal & Dobson, Ed, Blinded by Might: Can the Religious Right Save America? (Zondervan Publg. House 1999)Google Scholar.

113. See VanDrunen, David, The Two Kingdoms: A Reassessment of the Transformationist Calvin, 40 Calvin Theol. J. 248 (2005)Google Scholar; Dawn, Marva J., Powers, Weakness and the Tabernacling of God 1–34 (William B. Eerdmans Publg. Co. 2001)Google Scholar; Stringfellow, William, An Ethic for Christians and Other Aliens in a Strange Land 77–94 (Word Books 1973)Google Scholar.

114. Cf. O'Donovan, The Desire of the Nations, supra n. 22, at 12-21 (arguing that political theology requires “true political concepts”).

115. Similarly, the idea that decisions are not the law might be taken as evidence of humility in the face of our question for justice. Nevertheless, as argued earlier, this view seems to understate an appropriate human role in the construction of human law.

116. Matt 10:29-31.

117. Cf. Gray, supra n. 8, at 97 (positing the legal opinion of “an all-wise and all-good intelligence” as a standard against which positive law can be measured).

118. Luke 12:13-15.

119. On the wisdom of withholding theological warrant for such matters, see generally Smolin, David M., Church, State, and International Human Rights: a Theological Appraisal, 73 Notre Dame L. Rev. 1515 (1998)Google Scholar.

120. Assuming such political and cultural diversity is part of God's will, God could be assumed to know the best legal answer under the circumstances, even if the answers to similar questions are not uniform across legal systems and cultures. Definition of Leaf by Niggle, http://www.wordiq.com/definition/Leaf_by_Niggle (accessed Dec. 1, 2006).

121. Id. See generally Tolkien, J.R.R., Tree and Leaf (Houghton Mifflin Co. 1965) (explaining and illustrating Tolkien's account of subcreation)Google Scholar.

122. Definition of Leaf by Niggle, http://www.wordiq.com/definition/Leaf_by_Niggle (accessed Mar. 28, 2007). See generally Tolkien, J.R.R., Tree and Leaf (Houghton Mifflin Co. 1965)Google Scholar (explaining and illustrating Tolkien's account of subcreation).

123. Tolkien, J.R.R., The Silmarillion 43–50 (Tolkien, Christopher ed., Houghton Mifflin Co. 1977)Google Scholar.