Olivier Moréteau

Policing the Compensation of Victims of Catastrophes: Combining Solidarity and Self-Responsibility

Personal experience sometimes happens to coincide with preexisting expertise. The author of this paper has worked on the topic of compensation of victims, of terrorism in particular1 and catastrophes in general2, in the context of French law, and yet in the framework of comparative law projects. In August 2005, he left his previous position as professor of comparative law in Lyon to move with his family to the United States and, more precisely, to Baton Rouge, Louisiana.

Codification, transplants and history: law reform in Louisiana (1808) and Quebec (1866)

hand, the king was not the author of justice; he was only its distributor (175). He existed to serve the public good. On the other hand, he exercised great prerogative power. The limits of his power were to be discussed only ‘in hushed, reverential tones’ in England (184). The situation in the new American republic, however, bore little resemblance to the polity described by Blackstone. The people were the monarch. So the connection fails. Ruth Paley’s essay takes an even more negative turn. She points out that Blackstone was not the pioneer in providing a summary of English law and jurisprudence. His Commentaries were preceded by Thomas Wood’s Institute of the Laws of England (1720). Moreover, Blackstone’s work was not actually meant for future lawyers. It was meant for gentlemen who needed only a smattering of knowledge about the law. For future lawyers Coke upon Littleton was far superior to the Commentaries (190). Coke’s graceless presentation was what early American students of the law both needed and used. To the author, it seems ironic, therefore, to find Justice Scalia (and unnamed others) interpreting the Constitution according to ‘what Blackstone wrote for undergraduates 250 years ago’ (194). Horst Dippel’s essay on the use of the Commentaries in securing protection of human rights in American law is slightly more respectful of Blackstone’s current worth. While pointing out that Blackstone provides no real support for modern judicial review of legislation, he calls attention to the English jurist’s ‘incorporation of natural law ideas’ that provide support for that pervasive modern institution (212). The final essay by Jessie Allen chronicles the recent use made of Blackstone in opinions of the US Supreme Court. Citation counting reveals that between 1990 and 2012, one of every 13 opinions cited Blackstone – a far cry from the one in 318 in the opinions of the 1920s (218). Much of this usage seems quite inappropriate to the author. ‘Mythologizing tendencies’, Allen concludes, may distort the legitimacy of that usage, finding matters in Blackstone’s text that seem relevant to modern law but actually are quite inapposite. Still, it is undeniable that many citations to the Commentaries are on the record in America’s highest court – a tribute to the lasting utility of Blackstone’s efforts.