The article begins with a broad overview of the theoretical background underlying Blackstone's views. It then discusses Blackstone's theory of the validity of property rights and the influence these views had on American views of property rights. The consent of the individual was so binding that it justified (or authorized) the rule of the sovereign.
The orders of the sovereign, in the form of laws, derived their binding force from the original agreement. The second states that the members of the community bound together by a contract also conclude a contract with an inchoate sovereign by means of a pactum subjectionis (John Locke). Natural law theory has been relied upon in an attempt to "outside" the power of the sovereign and to identify a source of law that existed prior to the origin of the sovereign, which makes the social contract binding and from which the sovereign obtain the authority to legislate.
For Blackstone, it is a maxim of English law that protection and submission are a reciprocal act arising from the original contract establishing civil status.11 The king's primary duty under the original contract is to rule according to law. The laws of nature are essentially principles of divine law, which reflect the fundamental duties to which human beings are subject for their own good.21 Because the principles of natural law are instilled in the minds of human beings in the form of duty-based moral precepts , they have the character of maxims to which one must adhere.22 The precepts of natural law are fundamental to legal systems to the extent that they should also be the primary rules of international law. For the several articles into which it is divided in our systems, amount to no more than showing that this or that action contributes to the real happiness of man, and therefore very justly concluding that its performance is part of the law of nature; or, on the other hand, that this or that action destroys the real happiness of man, and that therefore the law of nature forbids it” (Bl.
Human reason is the means by which man must consider the methods that will tend "most effectively to our own essential happiness".26 Because of the fragility, imperfection and blindness of human reason, God revealed the laws to men in the sacred. scriptures, which divine laws "are found by comparison to be really a part of the original law of nature, like them.
The natural rights of man
Absolute rights, based on divine and natural law, also form the basis for a spectrum of subsidiary rights of the subject, such as the right to bear arms for defense "suitable to their condition and degree and as permitted by law" to the natural right to rebel and self-preservation, "when social sanctions and laws prove insufficient to curb the violence of oppression".35 The absolute nature of natural rights provides the holder of such rights not only with the right in abstracto, but also with mechanisms in concreto to enforce these rights. If, for example, the commentator writes, the legislator should forget his duty and the natural rights of the individual, and should take the private property of an individual and transfer it to another, "where there was no basis for pre- because it was supposed to benefit the public, he would not hesitate to declare, that such abuse of the right to possessory domain was a violation of the spirit of the constitution and therefore not within the scope of the general powers delegated by the people to the legislature. .36. The natural rights of the subject bring with them the duties of the supreme authority in the country to protect these rights.
The nature of society and government requires that the sovereign power use its authority to make and enforce laws to protect the natural rights of the subject. The reciprocal nature of the respective rights and duties of rulers and subjects means that the individual has a duty of obedience to the sovereign authority as a manifestation of the will of the whole; on its part, the community should protect the rights of each individual member and that in exchange for this protection, each individual should submit to the laws of the community, "without which submission it was impossible for the protection to certainly extend to".37. The state should make clear to the subjects their absolute and relative duties in order to promote and ensure public peace: “As far as the right of the supreme authority to make laws is concerned; but furthermore, it is also his duty.
For, since the respective members are obliged to conform to the will of the state, it is necessary that they receive instructions from the state which declares its will. Blackstone makes it clear that the natural rights of subjects need no sanction by human beings, nor can they be abridged or destroyed by human legislators: “Those rights which God and nature have then established, and therefore are called rights natural, such as life. and liberty, need not the aid of human laws to be more effectually invested in every man than they are; nor do they receive any additional force when declared by municipal laws to be inviolable. Nor do divine or natural duties (such as, for example, the worship of God, the bearing of children, and the like) receive any stronger sanction from their being declared duties on their part.
So that, on the whole, the declaratory part of the municipal law has no force or effect whatsoever, with respect to conduct which is naturally and intrinsically right or wrong. It becomes either right or wrong, just or unjust, duties or misconduct, as the municipal legislature sees fit, to promote the welfare of society, and carry out more effectively the purpose of civic life.”40. Regardless of their nature, all natural rights flow from and are based on fundamental moral duties.
The state has a fundamental duty to protect duty-based rights stemming from the moral law. Two aspects need clarification: firstly, rights do not originate from the same subject as the person who bears the duty and secondly, natural rights are not based on the bearer of the right, but on the moral duty that transcends both the subjects of duties and rights. Thus, for example, fidelity is commonly considered, and therefore easier, the duty of men, and protection the duty of the judge; and yet they are mutual rights and duties of each other.
Blackstone’s view of property rights
Blackstone takes his analysis of the foundations of private property a step further when he suggests that these civil institutions, e.g. Blackstone summarizes his position in the first volume of the Commentaries when he writes: “The origin[] of private property is probably derived from nature. Nathaniel Greene was also one of the leading voices in calling for a declaration of independence from England.
The scope of the government's power to exercise eminent domain is one of the prevailing property law issues in 21st century America. For decades, the meaning of the term "public use" has been a point of contention among scholars, lawyers, and judges. This amendment was applied to the states through the Due Process Clause of the Fourteenth Amendment in Chicago, B.
Eminent domain is an example of where the natural law of the right to private property, “a claim to the total exclusion of the right of any other individual in the universe,” is limited by the social contract. As early as 1641, American lawmakers used language similar to Blackstone's in formulating the New Republic's eminent domain laws. In formulating the Fifth Amendment's revenue clause, the framers appear to have adopted the concept of eminent domain promulgated by Grotius, Blackstone, and the early American colonists.
The transition in the American legal system from a traditional understanding of public use to a broad interpretation of the term has evolved over several centuries. Over time, the "old-fashioned" meaning of the term public use was ignored as a more liberal, modern interpretation of the term became popular. One of the first Supreme Court cases to articulate the broader interpretation was in Fallbrook Irrigation Dist.
Midkiff (which held that the redistribution of land constituted a “public use”), which were used by the Court to justify the outcome in one of the most recent controversial eminent domain cases, Kelo v. City of New London.90 Kelo is an example of the consequence of the shift from the original meaning of public usage to the new, broad definition of the phrase. The second debate surrounding the issue of the government's Fifth Amendment power to exercise eminent domain is what constitutes a "taking" and therefore requires compensation to be paid to the owner.
First, as noted earlier, Blackstone influenced the legal education and understanding of the men who originally wrote the Fifth Amendment. By studying his works, judges, legislators and academics can gain better insight into the original intent. Second, Blackstone's view of the natural legal foundations of property rights may be useful in determining the scope of the Fifth Amendment.
Third, by studying Blackstone's view of property as a whole, the reader will gain a better understanding of the history and purpose of private property rights.
Conclusion
