Monday, August 15, 2011

The Nature of Crime, According to Blackstone

Again, the following is from Blackstone's Commentaries on the Laws of England.  It is still generally true as a description of crimes, but if Blackstone meant that it must be true of crimes, then I think that we have moved away from this idea; a crime is now whatever a legislature makes a crime, provided that an applicable constitution does not forbid its doing so.

“In all cases the crime includes an injury: every public offence is also a private wrong, and somewhat more; it affects the individual, and it likewise affects the community. Thus treason is in imagining the king’s death involves in it conspiracy against an individual, which is also a civil injury: but as this species of treason in its consequences principally tends to the dissolution of government, and the destruction thereby of the order and peace of society, this denominates it a crime of the highest magnitude.”

I am not yet certain that it would be wise (or defensible, on legal grounds) to encourage or allow courts to impose this kind of limitation on a legislature, independent of any constitutional provision, but many well-established rules of this kind can be found in the works of Blackstone and other authors on the law, from our founding era and times preceding it.  It was unnecessary to include most of them in a bill of rights or elsewhere in a constitution because they were recognized even without such inclusion.  To the extent that these rules actually do make sense, wouldn't it make sense to collect and re-establish them, using methods to re-establish them that we would admit are legitimate and binding?

No comments:

Post a Comment