1. In Blackstone's Commentaries

2. Historic expressions of the principle

3. In current scholarship

4. Viewpoints in politics

5. References
    Citations  Sources 

In criminal law, Blackstone's ratio (also known as the Blackstone ratio or Blackstone's formulation) is the idea that:

As expressed by the English jurist William Blackstone in his seminal work, Commentaries on the Laws of England, published in the 1760s.

The idea subsequently became a staple of legal thinking in Anglo-Saxon jurisdictions and continues to be a topic of debate. There is also a long pre-history of similar sentiments going back centuries in a variety of legal traditions. The message that government and the courts must err on the side of innocence has remained constant.{{Citation needed|reason=This is both a sweeping declaration unlimited in time and unsupported by the text below, and unclear|date=October 2018}}

In Blackstone's Commentaries

The phrase, repeated widely and usually in isolation, comes from a longer passage, the fourth in a series of five discussions of policy by Blackstone:

The phrase was absorbed by the British legal system, becoming a maxim by the early 19th century.^[2] It was also absorbed into American common law, cited repeatedly by that country's Founding Fathers, later becoming a standard drilled into law students all the way into the 21st century.^[3]

Other commentators have echoed the principle; Benjamin Franklin stated it as, "it is better 100 guilty Persons should escape than that one innocent Person should suffer".^[4]

Defending British soldiers charged with murder for their role in the Boston Massacre, John Adams also expanded upon the rationale behind Blackstone's Ratio when he stated:

Given that Hale and Fortescue in English law had made similar statements previously, some kind of explanation is required for the enormous popularity and influence of the phrase across all the Anglo-Saxon legal systems. Cullerne Bown has argued that it "...can be seen as a new kind of buttress of the law that was required in a new kind of society." ^{[5] [6]}

Historic expressions of the principle

The immediate precursors of Blackstone's Ratio in English law were articulations by Sir Matthew Hale (about 100 years earlier) and Sir John Fortescue (about 200 years before that), both influential jurists in their time.

Hale wrote, "for it is better five guilty persons should escape unpunished, than one innocent person should die." Fortescue's De Laudibus Legum Angliae (c. 1470) states that "one would much rather that twenty guilty persons should escape the punishment of death, than that one innocent person should be condemned and suffer capitally." ^[7]

Some 300 years before Fortescue, the Jewish legal theorist Maimonides wrote that "the Exalted One has shut this door" against the use of presumptive evidence, for "it is better and more satisfactory to acquit a thousand guilty persons than to put a single innocent one to death."^[7][8][9]

Maimonides argued that executing an accused criminal on anything less than absolute certainty would progressively lead to convictions merely "according to the judge's caprice" and was expounding on both Exodus 23:7 ("the innocent and righteous slay thou not") and an Islamic text, [Jami'] of at-Tirmidhi.

[Jami'] of at-Tirmidhi quotes Muhammad as saying, "Avoid legal punishments as far as possible, and if there are any doubts in the case then use them, for it is better for a judge to err towards leniency than towards punishment". Another similar expression reads, "Invoke doubtfulness in evidence during prosecution to avoid legal punishments".^[10]

Other statements, some even older, which seem to express similar sentiments have been compiled by Volokh. A vaguely similar principle, echoing the number ten and the idea that it would be preferable that many guilty people escape consequences than a few innocents suffer them, appears as early as the narrative of the Cities of the Plain in Genesis (at 18:23-32),^[11]

With respect to the destruction of Sodom, the text describes it as ultimately being destroyed, but only after the rescuing of most of Lot's family, the aforementioned "righteous" among a city or overwhelming wickedness who, despite the overwhelming guilt of their fellows, were sufficient by their mere presence to warrant a "stay of execution" of sorts for the entire region, slated to be destroyed for being uniformly a place of sin. The text continues,

Similarly, on 3 October 1692, while decrying the Salem witch trials, Increase Mather adapted Fortescue's statement and wrote, "It were better that Ten Suspected Witches should escape, than that one Innocent Person should be Condemned."^[12]

In current scholarship

Particularly in the United States, Blackstone’s ratio continues to be an active source of debate in jurisprudence. For example Daniel Epps and Laura Appleman exchanged arguments against and in favour of its continuing influence in the Harvard Law Review in 2015. ^[13][14]

Viewpoints in politics

Liberal columnist Ezra Klein supported California's SB 967 "Affirmative Consent" law with the same reasoning as Cheney's supported "enhanced interrogation techniques". While claiming the law was "terrible" and could be used to punish people who did not commit rape, Klein states "its overreach is precisely its value" and "ugly problems don't always have pretty solutions".^[18]

Alexander Volokh cites an apparent questioning of the principle, with the tale of a Chinese professor who responds, "Better for whom?"^[7]

References

Citations

Sources

• {{cite journal |url=http://www.law.ucla.edu/volokh/guilty.htm |title=n Guilty Men" |volume=146 |number=1 |journal=University of Pennsylvania Law Review |page=173 |first=Alexander |last=Volokh |date=November 1997 |accessdate=10 July 2015}}

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