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A Belated Preface to Daniel J. Boorstin’s Essay on Blackstone’s Commentaries
Daniel J. Boorstin (1996). The Mysterious Science of the Law: An Essay on Blackstone’s
Commentaries (Chicago and London: University of Chicago Press), pp. 253.
Daniel J. Boorstin’s essay on the ‘mysterious science of the law’ is based on his
doctoral dissertation that was submitted to the Yale Law School and first published
when he was teaching at Harvard University in 1941.
Boorstin has taught both legal history and American history; he wrote a number of
essays on American politics before he ventured forth into the history of scientific
ideas in the latter part of his career as an intellectual historian.
Both his work on American history and the history of ideas is organized as ‘trilogies’
and were highly acclaimed by professional historians and by lay-readers.
Boorstin was educated at Harvard and Oxford and trained as a barrister in London
before commencing a career in teaching and research at Harvard and the University
of Chicago. He later became Director of the Smithsonian Institution and the
Librarian of Congress.
Most Americans would have at least encountered the introductory college textbook
that he wrote on American history with his wife Ruth Boorstin.
Boorstin won a number of accolades for his work in history including the Bancroft,
Parkman, and Pulitzer prizes and the National Book award.
This book should be of interest to those interested in legal theory and legal history.
I was attracted to this book mainly because I wanted to understand how much of
William Blackstone is of interest to contemporary legal theory and how much to
legal history.
As Boorstin explains, this book is an expanded version of his doctoral dissertation.
His attempt in the dissertation was to provide a close reading of William Blackstone

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where he pays attention to the basic assumptions, presuppositions, and forms of
figuration in Blackstone’s text (in a way that is reminiscent of literary critics rather
than conventional historians).
Since there is no dearth of introductory texts or learned commentaries on William
Blackstone in law school libraries, the main challenge for Daniel J. Boorstin must
have been to find a point of entry into the conceptual structure of William
Blackstone.
Boorstin also need a justification for doing this dissertation in a law school.
What then is Daniel Boorstin’s point of entry?
The answer cannot just be Blackstone’s popularity amongst American lawyers
because Blackstone is not as well read now as he was in colonial America.
Blackstone is mainly known to those working in legal history, the history of legal
education, and legal theory in contemporary law schools in the United States.
Boorstin’s point of entry is that the ubiquitous role played by lawyers in the United
States cannot be understood in the absence of William Blackstone’s Commentaries.
Blackstone was the first to provide a ‘do-it-yourself guide to becoming a lawyer.’
That however was not William Blackstone’s intent in writing his Commentaries on the
Laws of England.
Blackstone’s book was based on the annual lectures that he gave as the first Vinerian
Professor of Law at Oxford University from 1753.
It was these lectures at Oxford that provided a cohesive introduction to the common
law to whoever might be interested in England and subsequently in the United
States.
These lectures attempted to provide not only a cohesive picture of the entire legal
system but to justify its ways for newcomers. Blackstone went so far as stating that
the laws of England are modelled on natural law, and therefore, has a lot to teach us
about human nature.
Before Blackstone came along, only those who had exposure to the Inns of Court in
London would have any idea of what the over-all conceptual structure of English
law might look like or the forms of reasoning and justification needed to make sense
of it.
Blackstone’s career had a number of other achievements as well; so, for instance, he
served as a Member of Parliament and as a Judge of the Common Pleas.

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Blackstone is however remembered mainly for his commentaries which served as
not just an introduction to the common law in England and America, but as a
condensed law library in an era when books were few in number and finding the
law on any given matter excruciatingly difficult for those who lacked formal
training.
So, for all practical purposes, William Blackstone’s Commentaries was all that was
available by way of a legal education for most aspiring lawyers in the Anglo-
American world before legal training became available in law schools.
Needless to say, Blackstone’s influence is not reducible to the Anglo-American
world. It should be possible to study how his ideas diffused into the Commonwealth
of Nations, but that is beyond the scope of both Boorstin’s book and my review.
Boorstin’s intent in writing this book is to explain ‘to the lawyer, to the student of
history, and to people generally concerned with the problem of method in the social
sciences’ why it is still worth our while to engage with William Blackstone in a
world where is no lack of introductory books on every aspect of the law.
What exactly is this problem of method in the social sciences?
Is this merely something that Daniel J. Boorstin is wrestling with?
I would argue that though this book was written at the law schools at Yale and
Harvard, Boorstin partakes of the strong preoccupation with ‘ideas and methods’
that constitutes the approach to the history of ideas that is associated with the
humanities and the social sciences at the University of Chicago.
So, in that sense, there is enormous continuity of concerns between his early work in
legal theory and legal history and his later work on American and intellectual
history when he moved to the University of Chicago.
That is probably why this book was published by the University of Chicago Press.
The main problem in terms of method is the ‘function of reason’ in 18th century England.

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Boorstin therefore begins by wondering whether it is too late to ponder on the
‘function of reason’ given that contemporary approaches to intellectual history are
suspicious of the Age of Reason.
That is because our best psychologists, sociologists, and psychoanalysts are
preoccupied not with the function of reason, but with the function of unconscious
rationalization (i.e. with the ‘hermeneutics of suspicion’).
So it is not easy to excite them about Blackstone’s contention that the legal system
should be based on reason, and that reason in turn is a formal representation of
natural law (given that this line of argument might well culminate in the ‘divine
right of Kings’ to rule England as absolute monarchs).
So what does it mean to dwell in a world where reason was the ultimate criterion of
evaluation and locus of justification?
What does it mean to invoke reason in the age of rationalization?
Is Boorstin asking us to adopt the 18th century approach in the here-and-now?
Would this not be a form of intellectual nostalgia that will attract the
deconstructionists?
Or is it rather a case of trying to figure why we are the way we are - rather than a
plea to return to a simpler way of life and thought that was characterized by faith in
Reason and Providence?
I think that what excites Daniel Boorstin like any historian of ideas is the primacy
accorded to the life of the mind, to reason, in the 18th century.
Unlike now, there was no split between philosophy and the history of ideas in the
intellectual pursuit of the function reason which served as the necessary form of
explanation rather than as the object to be explained.
The contemporary historian of ideas however has to remind himself that there is no
‘transcendental signified,’ as Jacques Derrida might put it, and that the unabashed
pursuit of reason has nothing to do with legal philosophy or legal history as such.
It could well be the antiquarian pursuit of those who prefer legal philosophy or legal history
to the vigorous practice of the law.
In other words, Daniel Boorstin is haunted by the possibility that what he wants to
do will require less by way of justification in the 18th century than might be the case
in the here-and-now (even within the elite schools of law and history that can afford
to fund his research).

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Boorstin’s interest in William Blackstone’s Commentaries then is both practical and
historical.
It is practical in the sense that Blackstone still serves as a useful manual for lawyers;
it is however historical to the extent that lawyers have lost the habit of reading
Blackstone and the classical commentators on the common law.
Daniel Boorstin’s anxieties are not only relevant in the context of Englishmen like
William Blackstone, but might encompass any number of legal theorists in the
United States itself like Joseph Story or Chancellor Kent (who are only known to
legal historians).
In other words, what is really at stake here is whether from a pragmatic point of
view, it is possible, necessary, or even desirable to weave in legal history into the
fabric of contemporary legal education.
Or, is it rather the case that the legal pragmatist is neither interested in legal
philosophy nor legal history for that matter and leaves it to the inclination of
individual lawyers to educate themselves in these areas should they feel inclined to
do so?
That is why we must think-through Daniel Boorstin’s intent in doing this doctoral
dissertation and in re-writing it into a book given that he wavers between pragmatic
and historical forms of justification for his essay on William Blackstone’s
Commentaries.
The pragmatic justification can only be that reading William Blackstone was not just
a matter of learning the law in colonial America, but is well worth the effort even
now.
The historical justification however is a way of saying that legal history is worth
pursuing in its own right and its usefulness is not to be measured on whether it will
make a law student into a better lawyer.
Instead, it might help law students to imbibe the ‘sense of majesty’ that characterises
the symbolic invocation of the law. It is really a matter of dipping into the legal canon like
the literary canon.
I emphasize this point because the publication of this book propelled Daniel Boorstin
not into a career as a lawyer, or even as a legal historian, but as a historian with a
specialization in American history in a department of history rather than a law
school.
Why did Daniel J. Boorstin squander his legal training in England and Yale Law School?

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Why did he move into areas totally unrelated to the law?
I think the answer to this question relates to his sense of ambivalence about the function
of reason in the legal system.
Boorstin gives up not only on the practice of law, but also on a career as a legal
historian because he could not find the justification that he sought in William Blackstone’s
Commentaries for the ‘function of reason.’
While Daniel Boorstin finds that William Blackstone is a compelling read in terms of
textuality, he is not convinced that he can assume the locus of reason in an ‘age of
rationalization’ as a consequence of reading the Commentaries.
That is why neither the theoretical nor the practical aspects of the law addressed
Boorstin’s intellectual needs adequately.
When Daniel Boorstin became an eminent historian at the University of Chicago,
and began to publish his trilogy on American history, and a number of essays on
American politics, he is supposed to have said that he was only interested in facts
and not in theories.
This trajectory of disillusionment with the pursuit of reason (or theoretical work in
general) is what eventually propelled him to the history of ideas in science (as
opposed to the history of ideas in legal philosophy).
Science, Boorstin believed, was successful and progressive in a way that law and
legal philosophy were not.
Or, to put it simply, though Daniel Boorstin does not cite Justice Oliver Wendell
Holmes Jr., he encountered the same truth that we associate with Holmes’s maxims
on the common law which associates the history of the law with experience rather
than with logic.
This is the truth that Daniel Boorstin was not emotionally or intellectually prepared
for; hence his disillusionment with reason in the strong sense as the main cognitive
instrument of the Age of Reason.
That then is what this book really represents.
It is not about William Blackstone-made-easy for law students or an attempt to tease
out the conceptual contradictions in a legal text like Duncan Kennedy is given to
doing in the context of critical legal studies.

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Instead, I argue that Boorstin’s early foray in legal theory will remain elusive if we
do not read it as symptomatic of what he thought the law should be and what in fact
it turned out to be.
So unlike the critical legal theorists whose insights he anticipates to some extent,
Daniel Boorstin is not harsh on either William Blackstone or on the Commentaries; he
notes the contradictions and moves on.
Just as it was not possible for Daniel Boorstin to read or write the history of reason –
as embodied in the Commentaries - without being implicated in the methodology of
rationalization; likewise, the main difficulty for a contemporary reader is to make
sense of Boorstin’s nostalgia for reason in the strong sense (without finding himself
implicated in the applications of the deconstructive method or critical legal studies).
That however may not necessarily be the case if Daniel Boorstin had persisted in
legal theory or at least Anglo-American legal history.
Boorstin understood only too well that his justification for this study was inadequate
and that his approach was neither pragmatic nor rational.
But, at the same time, Daniel J. Boorstin was too early to be a part of either
deconstructionist approaches to the law or partake of the radical thrust of critical
legal studies.
That is why despite claiming that William Blackstone’s Commentaries bring out the
‘uncanny coherence’ of the common law, and the role that it ought into play in the
education of the contemporary lawyer, Daniel J. Boorstin’s eventually found himself
pursuing the history of ideas rather than the history of law.
SHIVA KUMAR SRINIVASAN