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Boswell Gets His Due

In Arts & Letters, Book Reviews, Books, British Literature, Christianity, History, Humanities, Literary Theory & Criticism, Literature, Scholarship, Western Civilization, Writing on August 19, 2015 at 8:45 am

Allen 2

This review originally appeared here in Liberty.

What is Enlightenment? The title of Immanuel Kant’s most famous essay asks that question. Kant suggests that the historical Enlightenment was mankind’s release from his self-incurred tutelage, an intellectual awakening that opened up new freedoms by challenging implanted prejudices and ingrained presuppositions. “Sapere aude!” Kant declared. “Dare to be wise!”

Tradition maintains that the Enlightenment was an 18th-century social and cultural phenomenon emanating from Paris salons, an Age of Reason that championed the primacy of the individual, the individual’s competence to pursue knowledge through rational and empirical methods, through skepticism and the scientific method. Discourse, debate, experimentation, and economic liberalism would liberate society from the shackles of superstition and dogma and enable unlimited progress and technological innovation, offering fresh insights into the universal laws that governed not only the natural world but also human relations. They would also enable individual people to attain fresh insights into themselves.

Boswell was a garrulous charmer with Bacchanalian tendencies, and a fussy hypochondriac raised Calvinist and forever anxious, perhaps obsessive, about the uncertain state of his eternal soul.

Robert Zaretsky, a history professor at the University of Houston and the author of Boswell’s Enlightenment, spares us tiresome critiques or defenses of the Enlightenment by Foucault and Habermas and their progeny. He begins his biography of James Boswell, the great 18th-century biographer, with a historiographical essay on the trends and trajectories of the pertinent scholarship. He points out that the Enlightenment may have begun earlier than people once believed, and in England rather than France. He mentions Jonathan Israel’s suggestion that we look to Spinoza and company, not Voltaire and company, to understand the Enlightenment, and that too much work has focused on the influence of affluent thinkers, excluding lower-class proselytizers who spread the message of liberty with a fearsome frankness and fervor. And he maintains that Scotland was the ideational epicenter of Enlightenment. Boswell was a Scot.

All of this is academic backdrop and illustrative posturing, a setting of the stage for Zaretsky’s subject, Boswell, a lawyer and man of letters with an impressive pedigree and a nervous disposition, a garrulous charmer with Bacchanalian tendencies, and a fussy hypochondriac raised Calvinist and forever anxious, perhaps obsessive, about the uncertain state of his eternal soul. He marveled at public executions, which he attended regularly. He also had daddy issues, always trying to please his unpleased father, Lord Auchinleck, who instructed his son to pursue the law rather than the theater and thespians. When word arrived that his son had been sharing his private journals with the public, Lord Auchinleck threatened to disown the young James.

Astounded by the beauty and splendor of Rome and entranced by Catholicism, Boswell was never able to untangle the disparate religious influences (all of them Christian) that he picked up during his travels. He was equally unable to suppress eros and consequently caught sexual diseases as a frog catches flies.

Although the Life of Johnson is always considered one of the most important books in the language, Boswell himself has been relegated to the second or third tier of the British literary canon.

Geography and culture shaped Boswell’s ideas and personality and frame Zaretsky’s narrative. “With the European continent to one side, Edinburgh to the other,” Zaretsky intones, “James Boswell stood above what seemed the one and the same phenomenon: the Enlightenment.” This remark is both figurative and literal, concluding Zaretsky’s account of Boswell’s climbing of Arthur’s Seat, a summit overlooking Edinburgh, and his triumphant shout, “Voltaire, Rousseau, immortal names!”

Immortal names indeed. But would Boswell himself achieve immortality? Boswell achieved fame for his biography of Samuel Johnson, the poet, critic, essayist, and wit — who except for one chapter is oddly ancillary to Zaretsky’s narrative. Although the Life of Johnson is always considered one of the most important books in the language, Boswell himself has been relegated to the second or third tier of the British literary canon and treated, poor chap, as a celebrity-seeking minor figure who specialized in the life of a major figure. If Dr. Johnson is Batman, Boswell is a hobnobbing, flattering Robin.

Boswell’s friends have fared better — countrymen and mentors such as Adam Smith and David Hume, for instance, and the continental luminaries Voltaire and Rousseau. But there are many interesting relationships here. To cite only one: Thérèse Levasseur, Rousseau’s wife or mistress (a topic of debate), became Boswell’s lover as he accompanied her from Paris to England. The unsuspecting Rousseau, exiled in England, waited eagerly for her arrival, while a more astute Hume, who was Rousseau’s host, recognized matters for what they were.

Zaretsky believes Boswell was an exceptional talent, notwithstanding his weaknesses, and certainly worthy of our attention. Glossing several periods of Boswell’s life but closely examining his grand tour of the Continent (1763–1765), Zaretsky elevates Boswell’s station, repairs Boswell’s literary reputation, and corrects a longstanding underestimation, calling attention to his complicated and curious relationship to the Enlightenment, a movement or milieu that engulfed him without necessarily defining him.

The title of the book assumes plural meaning: Boswell attained a self-enlightenment that reflected the ethos and ethic of his era.

Zaretsky’s large claims for his subject might seem belied by the author’s professedly modest goal: “to place Boswell’s tour of the Continent, and situate the churn of his mind, against the intellectual and political backdrop of the Enlightenment.” To this end, Zaretsky remarks, “James Boswell and the Enlightenment are as complex as the coils of wynds and streets forming the old town of Edinburgh.” And so they are, as Zaretsky makes manifest in ten digestible chapters bristling with the animated, ambulatory prose of the old style of literary and historical criticism, the kind that English professors disdain but educated readers enjoy and appreciate.

Zaretsky marshals his evidence from Boswell’s meticulously detailed missives and journals, piecing together a fluid tale of adventure (meetings with the exiled libertine John Wilkes, evenings with prostitutes, debauchery across Europe, and lots of drinking) and resultant misadventure (aimlessness, dishonor, bouts of gonorrhea and depression, and religious angst). Zaretsky portrays Boswell as a habitual performer, a genteel, polite, and proud socialite who judged himself as he imagined others to have judged him. He suffered from melancholy and the clap, among other things, but he also cultivated a gentlemanly air and pursued knowledge for its own sake. The title of the book, Boswell’s Enlightenment, assumes plural meaning: Boswell attained a self-enlightenment that reflected the ethos and ethic of his era.

Zaretsky’s book matters because Boswell matters, and, in Zaretsky’s words, “Boswell matters not because his mind was as original or creative as the men and women he pursued, but because his struggle to make sense of his life, to bend his person to certain philosophical ends, appeals to our own needs and sensibilities.” We see ourselves in Boswell, in his alternating states of faith and doubt, devotion and reason. He, like so many of us, sought to improve himself daily but could never live up to his own expectations. He’s likeable because he’s fallible, a pious sinner who did right in the name of wrong and wrong in the name of right, but without any ill intent. A neurotic, rotten mess, he couldn’t control his libido and didn’t learn from his mistakes. But he could write like the wind, and we’re better off because he did. He knew all of us, strangely, without having known us. God help us, we’re all like him in some way.


Review of James Seaton’s “Literary Criticism from Plato to Postmodernism”

In Academia, Arts & Letters, Book Reviews, Books, Essays, Fiction, Historicism, History, Humanities, Literary Theory & Criticism, Literature, Pedagogy, Philosophy, Poetry, Politics, Postmodernism, Rhetoric, Scholarship, Western Civilization, Western Philosophy, Writing on December 31, 2014 at 8:45 am

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This review first appeared here in The University Bookman.

Back when I was a pimple-faced graduate student in English and law, I ordered a book from Amazon titled Cultural Conservatism, Political Liberalism: From Criticism to Cultural Studies. The book had been out awhile, but I had only recently come across an intriguing piece by its author, James Seaton, a professor of English at Michigan State University. I read my purchase in earnest and then dashed off a complimentary email to Seaton days later. He responded, and we struck up a dialogue that continued for several years. I once visited him at the Russell Kirk Center for Cultural Renewal, where he spoke to a small crowd about George Santayana. He had just edited two of Santayana’s seminal essays for Yale University Press and had recruited Wilfred M. McClay, John Lachs, and Roger Kimball to contribute to the edition. We got along swimmingly, and Annette Kirk ensured that he and I had time alone to discuss whether I should apply to a doctoral program in English or continue down the path of the law.

Literary Criticism from Plato to Postmodernism has all the themes and qualities that first drew me to Seaton. It is a collection of Seaton’s latest essays and reviews revised and synthesized into a comprehensive case for humanistic inquiry. Amplifying his arguments from Cultural Conservatism, Political Liberalism and reformulating his principles about the value of literature to society, Seaton continues to undercut the discipline of cultural studies, which he decries for its “obligatory leftism.” His leading contribution—the subject about which he stands to forge new directions in the field of literary criticism—is to revitalize old contributions, namely, the humanistic tradition as defined by Irving Babbitt and as represented by Aristotle, Alexander Pope, Samuel Johnson, Matthew Arnold, Henry James, Edmund Wilson, Lionel Trilling, and Ralph Ellison. Chapters Two and Four are profitable beginnings of this project because they explain which critics (William Wordsworth and Samuel Taylor Coleridge) and which schools of criticism (Romanticism, Marxism, and the New Criticism) fall outside the humanistic tradition. These chapters, Four especially, are exciting, provocative, and significant. They supply the basis and much of the substance for the rest of the book and suggest that literature is not an agent of ideology, nor literary theory a master key that unlocks the door to grand solutions for political, scientific, and economic problems.

For those who are uninterested or unversed in literary criticism, however, reading Seaton will be like watching strategic athletic maneuvers—swing! parry! dive!—without a sense of what’s at stake in a sporting match whose tactics and rules are unknown. From the start he frames his argument with Plato and Aristotle, but today’s graduate students in English will be unclear what these men mean for the larger project of humanism or why they matter to contemporary audiences. With the exception of the Norton anthologies, most accounts of literary criticism in popular anthologies begin with Nietzsche in the late nineteenth century or with the New Critics in the early twentieth. The pinnacle of influence for these late critics roughly coincides with the development of English departments as institutions. To begin at the beginning—with the Greeks—will disorient those trained to look back at the literary canon through the prism of “contemporary” theories.

This remark is not a reproach of Seaton but of current literary studies; the chief merit of Seaton’s methodology is to demystify literary studies and to affirm there’s nothing new under the sun: the latest theories have definite antecedents (not necessarily good ones) and can be mapped by their continuity with other methodologies. Marxists of the Frankfurt School such as Herbert Marcuse, for example, follow in the wake of Plato: “Just as Plato had insisted on the necessity of censorship in his ideal Republic, Marcuse argued that suppression of free speech was required in the twentieth century for the establishment of what he considered true freedom.”

Seaton’s knack for classification emerges forcefully in the opening chapter. Here he arranges under three heads the whole history of literary criticism: the Platonic, the Neoplatonic, and the Aristotelian. He defines literary criticism as “a continuing conversation” among these three traditions inspired by just two Greek men. Adhering to the third category, the Aristotelian, which he calls humanistic, Seaton rejects the first because it questions the aesthetic value of literature, distrusts the sensory effects of literature, and treats great works as mere symptoms of ideological structures or institutions. “The philosophy of the Republic,” Seaton explains, “leaves no room for judging poetry according to literary excellence; all that counts is its political and social impact.” Seaton rejects the second, the Neoplatonic, for defending literature and poetry on the narrow and quixotic “basis of the moral and spiritual elevation it made possible.”

By contrast, Seaton submits, the “humanistic view of literature” might be “a middle way between the Platonic condemnation of art and literature and the Neoplatonic elevation.” The humanistic view “remains Aristotelian” because it considers “literature as a source of insight about human life” and is willing “to judge grand theory by the norms of common sense.” While Plato would expel poetry and theater from his ideal Republic, segregate poetry from philosophy, and train his Guardians to submit their virtues to the service of the State, Aristotle calls for “individual judgment about the literary merit and relevance to human life of particular works from audiences and certainly from would-be critics.” Neoplatonist overstatement about the manner in which “poetry brings us closer to the divine” also finds no place in Aristotelian humanism, which modestly maintains that literature “can tell us important things about human life but little about the universe.” Humanists write of the person as the person: they turn to literature to learn and to teach how to live well and wisely without fancying transcendental essences or utopian abstraction. The very crux of Aristotelian humanism is that “the importance of literature is linked to the significance of human life itself,” not to the political, ideological, or religious convictions that a work of literature implicates.

The triadic paradigm (Aristotelian, Platonist, Neoplatonist) may seem reductive, and indeed it is, but such reduction establishes recognizable classifications that encompass a diversity of interests and approaches while shaping a vocabulary for arranging distinctive properties into taxonomies to set apart certain authors and texts. Despite his skill for categorizing and simplifying schools of literary criticism, Seaton is steadfast that literary criticism is distinct in function and form from science: the former is as much an art as the art it explicates, whereas the latter is an empirical discipline that ascertains the natural rules of the phenomenal world by gathering and testing concrete data, building consensus among experts, and denominating general propositions to describe observable events. The contrast is not as sharp or essentialist as I have portrayed it—the pragmatic tradition of Peirce, James, and Santayana falls somewhere between art and science—but the fact that literary criticism has splintered into innumerable, contradictory schools suggests that the disparate methods and judgments of literary critics are not derived from shared conditions or by recourse to the same techniques.

Criticism of the humanistic variety championed by Seaton is found today not in academic journals but in popular literary reviews and journals such as this one. It has the important civic function of educating and inspiring mass audiences. Humanism rejects the “implicit promise” of cultural studies “that adepts gain the ability to make authoritative pronouncements about all aspects of human life without going to the trouble of learning the rudiments of any particular discipline.” Humanism, instead, engages in public debate without resorting to naked polemics; its practitioners understand or at least appreciate the complexity of the cultural norms and standards of readers outside the ivory tower. Professors in the academy, on the other hand, disconnected from the lifestyles and manners and conventions of the general public, tend to write themselves into little corners, retreating from the potential scrutiny of educated laypeople and insisting that true scholarship “requires specialization on topics specific enough to allow for the production of new knowledge, not open-ended conversation about questions to which no definitive answer is possible.” Seaton’s model of humanism advocates a different errand: “to make available to the larger culture the testimony of literature on human life … by accurately assessing the literary merit of the witness.”

They waste it that do state it with no style. Seaton, accordingly, makes short work of the “dominant theorizing” that lacks “literary distinction,” and he does so with his own unique style that remains as accessible to the educated layperson as it is to professional scholars of literature. His is not the delightfully repetitious, grandstanding prose of a Harold Bloom or Richard Poirier—the type of prose that, in its very makeup, shouts down the technical writing of hyper-professionalized humanities scholarship. Yet Seaton can turn a phrase with the best of them. Although it is a subsidiary point, the notion that a critic should write in a mode many people will enjoy is the literary equivalent to popular sovereignty: the common reader, not the expert, ought to determine which works continue to be read and therefore which become canonized. Like his guides Ralph Ellison and Dwight Macdonald, Seaton, mindful of his audience, takes pains to avoid jargon even as he discusses such theorists as Max Horkheimer and Theodor Adorno whose writing is riddled with esoterica.

Seaton ends with a hopeful note: “Although the task of addressing the arguments of the dominant contemporary theories is important, the decisive answer [to the question what to do now that the dominant theories dismiss the importance of literature to life and thought] will come from the literary criticism of the twenty-first century that conveys to the general public the pleasures and insights that poems, plays, and fiction continue to make available to all those willing to attend.” Let’s hope the coming decades yield critics like Edmund Wilson and Lionel Trilling, who were “members of a humanistic tradition capacious enough to study the connections between literature and society while also insisting that poems, plays, and novels should be judged on their own merits as works of art.”

It isn’t that the political and social sphere should be off-limits to critics, only that critics should, as Seaton does, subordinate their political and social presuppositions to aesthetic judgments, the most discerning of which account for the value of imaginative literature to plain living and high thinking. The best criticism helps us to understand how literature makes life better, more meaningful, and more fulfilling. Simple as it sounds, this proposition is tremendously complex because of the tremendous complexity of life itself. Held to his own high standards, Seaton succeeds: his chapters force you to consider what role literature has played in your own development, and how that role might play out in the lives of others. Good literature is more than a material object; it’s a way of living, a crucial check on those who purport to know it all with utter certainty.

The American Founders and Natural Law Jurisprudence

In America, American History, American Literature, Arts & Letters, Books, Britain, Christianity, Historicism, History, Humanities, Jurisprudence, Law, Laws of Slavery, Liberalism, Literature, Philosophy, Slavery, Southern History, Thomas Jefferson, Western Civilization, Western Philosophy on April 9, 2014 at 8:45 am

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The American founders, many of them, validated their political cause and secession from Britain by resorting to natural law theories and paradigms.[i] Thomas Jefferson memorialized these theories and paradigms in the Declaration of Independence.[ii] While studying nature and the physical world, Jefferson extended natural law jurisprudence while revising it to fit the needs and settings of the New World.[iii] Rather than looking to divine or moral prescription to ground his natural law theories, Jefferson looked to nature. He borrowed from Newtonian ideas about the laws of the universe and applied them to the laws of man.[iv] A human law was, by this logic, akin to the law of gravity.

The American insistence on natural law was a reaction to the analytical positivism gaining credence in Britain.[v] This school of jurisprudence found its fullest expression in the utilitarianism of Jeremy Bentham and John Austin. These men treated laws as linguistic constructs: commands that attained the status of law because people followed them, not because they reflected a priori or transcendent rules of the cosmos. American founders such as Jefferson saw natural law as a way to distinguish themselves from their British counterparts and to define what it meant to be American. William Blackstone, one of the few British jurists still clinging to natural law principles,[vi] enjoyed vast success from American purchases of Commentaries on the Laws of England.[vii] The popularity of this treatise in America had to do with Blackstone’s support for ideals that, from the colonials’ perspective, affirmed Revolutionary rhetoric and philosophical principles.[viii] Blackstone died in 1780. His death ushered in the age of positive law jurisprudence in England.[ix]

In America, however, natural law picked up momentum in the wake of the Revolution and American independence.[x] That ideas of natural law flourished during the Enlightenment, especially in America where institutions were supposed to reflect—indeed embody—Enlightenment principles, is curious because the Enlightenment glorified reason and humanism: progressive concepts seemingly incongruous with a moral theory derived from ancient church teachings and philosophical orthodoxies. This disjuncture reveals the extent to which colonials sought to divorce their culture and communities from the British. Á la Blackstone, colonials would go great lengths to “prove” their natural law theories through application of the scientific method and appeals to reason.[xi] Natural law jurisprudence did, in fact, fit within a scientific and rational framework in many important respects. For instance, natural law, like laws of the natural world putatively discoverable by reason, logic, and experiment, were by definition universal. Just as truths about the external world allegedly were deduced through sustained study of specimens and species, so truths about the human condition were, natural theorists argued, deduced through sustained study of human behavior and the history of the races.[xii] In this sense, colonial jurists viewed natural law not as retrograde, superstitious, or religious, but as cutting-edge and scientific. Americans were not alone in their attention to the scientific elements of law. In Western and Central Europe during the mid-to-late eighteenth century, rulers and leaders “sought to rationalize their legal systems, to make law scientific, to extend it in a vernacular language evenly over their territories, and to put an end to the earlier jumble of customs, privileges, and local rights.”[xiii] Save for Blackstone’s efforts, however, this scientific trend did not gain much traction in England.[xiv]

Early Americans, particularly northerners[xv] but also Virginians such as Jefferson and George Mason, celebrated the ideals of natural law and natural rights appearing in the Declaration, but they found those ideals difficult to implement in everyday practice. Although staunchly committed to the principles of natural law, the colonials, at least those with representation or voice in the political sphere, discovered that abstract philosophy did not readily translate into workaday rules and regulations.[xvi] “It was one thing,” submits David Brion Davis, “to state abstract propositions, and quite another to decide how the law applied to a particular case.”[xvii] Above all, the “peculiar institution” of American slavery called into question the Enlightenment values upon which American natural law jurisprudence depended. Cries of freedom and liberty rang hollow once Americans were no longer up against an oppressive British Empire. These cries began to sound hypocritical—if they did not seem so already—as the institution of slavery became a mainstay of the economy of the fledgling nation.[xviii] How could colonists extol freedom, liberty, and equality yet enslave masses of people? This American philosophical “inconsistency pinched harder when slaves began to speak the language of natural rights.”[xix] As Samuel Johnson, the eminent British Tory and man of letters, quipped, “How is it that we hear the loudest yelps for liberty among the drivers of negroes?”[xx]



[i] “The American Revolution, as it ran its course from 1764 to 1776—from the first beginnings of resistance down to the Declaration of Independence and the creation of new colonial constitutions—was inspired by the doctrines of Natural Law.” Ernest Baker, in Natural Law and the Theory of Society: 1500-1800, ed. Otto Gierke (Cambridge, England: Cambridge University Press, 1934) at I, xlvi. See generally Clarence Manion, “The Natural Law Philosophy of the Founding Fathers,” University of Notre Dame Natural Law Institute Proceedings (Notre Dame, Indiana: University of Notre Dame Press, 1949). See also Raymond Whiting, “The American Interpretation of Natural Law,” A Natural Right to Die: Twenty-Three Centuries of Debate (Westport, CT: Greenwood Press, 2002) 109-118.

[ii] “[T]he argument of the Declaration is a subtle, if ambiguous, blending of empirical historical analysis and the metaphysics of Natural Law. To prove its central contention—that the revolution was made necessary by British policies—the document enumerates twenty-seven specific events in recent history which reveal precisely how Britain acted to establish despotism. […] But the revolutionaries meant to transcend arguments of expediency, for such arguments were always subject to the vicissitudes of opinion and opinion might lead one to conclude that a revolution was in fact unnecessary and therefore unjustifiable. To remove their claims from the arena of opinion and to ground them with certainty, the revolutionaries felt constrained to found the argument for justification on the principle of Natural Rights which was rooted in the theory of Natural Law as applied to politics and society. Thus the grievances enumerated in the Declaration, weighty in themselves for some readers, were for others concrete examples of how one nation attempted to subordinate another to an ‘absolute despotism.’ The grievances, taken together, demonstrated that British policies had violated the fundamental principles of Natural Law itself.” Lester H. Cohen, “The American Revolution and Natural Law Theory,” Journal of the History of Ideas, Vol. 39, No. 3 (1978) at 491-92.

[iii] See generally Allen Mendenhall, “Jefferson’s ‘Laws of Nature’: Newtonian Influence and the Dual Valence of Jurisprudence and Science,” Canadian Journal of Law and Jurisprudence, Vol. 23, No. 2 (2010).

[iv] See generally Mendenhall, “Jefferson’s Laws of Nature.”

[v] See generally David Lieberman, “Mapping criminal law: Blackstone and the categories of English jurisprudence,” in Law, Crime and English Society, 1660-1830, ed. Norma Landau(Cambridge, England: Cambridge University Press, 2002 ) at 159-162. See also David Brion Davis, The Problem of Slavery in the Age of Revolution, 1770-1823 (Ithaca and London: Cornell University Press, 1975) at 343-385. Davis explains this English phenomenon as follows: “In England there was no ‘fundamental shift in values’ that mobilized the society into revolution. There was no counterpart to the American need for self-justification. No new hopes or obligations arose from an attempt to build a virtuous republic. Such phrases as ‘created equal,’ ‘inalienable rights,’ and ‘the pursuit of happiness’—all of which appeared in classic liberal texts—were qualified by a reverent constitutionalism that looked to Saxon precedent to legitimize ideals of freedom. The notion of man’s inherent rights, when assimilated to the historical concept of British ‘liberty,’ implied little challenge to traditional laws and authorities. And by the 1790s the very idea of inherent rights was giving way to radical and conservative forms Utilitarianism.” Davis, The Problem of Slavery in the Age of Revolution at 343.

[vi] In short, Blackstone believed that the common law reflected natural law principles and that any law contradicting natural law was invalid. Consider, e.g., the following quotation: “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 all over 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. […] 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.” Sir William Blackstone, Commentaries on the Laws of England, Book I at 41-42.

[vii] See Russell Kirk, America’s British Culture (New Brunswick, New Jersey: Transaction Publishers, 1993) 36-40.

[viii] See Albert W. Alschuler, “Rediscovering Blackstone,” 145 University of Pennsylvania L. Rev. (1996) at 4-19. See also David Schultz, “Political Theory and Legal History: Conflicting Depictions of Property in the American Political Founding,” 37 American Journal of Legal History (1993) at 483-486.

[ix] The jurisprudential split between Blackstone and Bentham, while stark, was not as hostile as some first considered: “Until recently Bentham’s claim to have made a sharp break with Blackstone has won wide acceptance, and that fact, combined with Bentham’s ascendancy, was chiefly responsible for consigning Blackstone to obscurity. […] No doubt this outcome resulted in part from Bentham’s mastery of invective, and in part from the fact that the elderly Blackstone did not deign to notice the attacks of an upstart critic, much less reply to them. Even the strongest partisans of Bentham have conceded that much of his criticism directed at Blackstone was misplaced[…]. In spite of Bentham’s efforts, most historians of the relationship have acknowledged that Bentham, despite his implacable hostility, combined relentless criticism with passages of praise that became as famous as some of his barbs.” Richard A. Cosgrove, Scholars of the Law: English Jurisprudence from Blackstone to Hart (New York University Press, 1996) at 52.

[x] See generally George W. Casey, “Natural Rights, Equality, and the Declaration of Independence,” 3 Ave Maria Law Review 45 (2005). See also Philip A. Hamburger, “Natural Rights, Natural Law, and American Constitutions,” 102 Yale Law Journal 907 (1993). See also James Lanshe, “Morality and the Rule of Law in American Jurisprudence,” 11 Rutgers Journal of Law & Religion 1 (2009) at 11-15. See also Kevin F. Ryan, “We Hold These Truths,” 31-WTR Vermont Bar Journal 9 (2005-06) at 11-16.

[xi] “[Blackstone] presented law as a science, a ‘rational science,’ that included an extensive discussion of natural law. To Blackstone, the principles of natural law are universal and superior to positive law, including the common law. […] Natural law, according to Blackstone, is either revealed by God or discoverable through human reason. […] American jurisprudents readily accepted Blackstone’s natural law orientation. […] [N]atural law provided a convenient and useful justification for the adoption of English common law in the various states of the burgeoning nation. Especially in the decades following soon after the Revolutionary War, if the common law had been understood merely as an English institution distinctive to Britain itself, then an American reliance on the common law would have seemed impolitic or even treasonous. If, however, the common law arose from universal principles of the law of nature, which were revealed by God or discovered through human reason, then the common law would be legitimate everywhere, including in America.” Stephen M. Feldman, “From Premodern to Modern American Jurisprudence: The Onset of Positivism,” 50 Vanderbilt Law Review 1387 (1997) at 1396-97.

[xii] Thomas R. R. Cobb, a jurist from Georgia and an expert on slave laws, took pains to show how science validated the idea of slaves as naturally inferior and in need of white supervision. Consider this quote by Cobb: “The history of the negro race then confirms the conclusion to which an inquiry into the negro character had brought us: that a state of bondage, so far from doing violence to the law of his nature, develops and perfects it; and that, in that state, he enjoys the greatest amount of happiness, and arrives at the greatest degree of perfection of which his nature is capable. And, consequently, that negro slaver, as it exists in the United States, is not contrary to the law of nature.” Thomas R. R. Cobb, An Inquiry into the Law of Negro Slavery in the United States of America (Philadelphia: T. & J. W. Johnson & Co., 1858) at 51.

[xiii] Gordon S. Wood, Empire of Liberty: A History of the Early Republic, 1789-1815 (Oxford University Press, 2009) at 403.

[xiv] Ibid. at 403-404.

[xv] “Southerners considered themselves law-abiding and considered northerners lawless. After all, southerners did not assert higher-law doctrines and broad interpretations of the Constitution. Rather, as Charles S. Sydnor has argued, they understood the law in a much different way and professed to see no contradiction between their code of honor, with its appeal to extralegal personal force, and a respect for the law itself.” Eugene Genovese, Roll, Jordan, Roll (New York: Pantheon Books, 1974) at 44.

[xvi] See Gordon S. Wood, Empire of Liberty: A History of the Early Republic, 1789-1815 (Oxford University Press, 2009) at 405-408.

[xvii] David Brion Davis, The Problem of Slavery in the Age of Revolution (Ithaca and London: Cornell University Press, 1975) at 470.

[xviii] See generally David Brion Davis, The Problem of Slavery in Western Culture (Ithaca, New York: Cornell University Press, 1966) at 3-28. For a synthesis of the historical scholarship on this point, see Peter Kolchin, American Slavery, 1619-1877 (New York: Hill and Wang, 1993) at 63-92.

[xix] David Brion Davis, The Problem of Slavery in the Age of Revolution (Ithaca and London: Cornell University Press, 1975) at 276.

[xx] See James Boswell, The Life of Samuel Johnson, LL.D. (New York: George Dearborn, 1833) at 132.

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