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Adam Smith’s Lectures on Jurisprudence: Their Influence on Legal Education

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Adam Smith: International Perspectives

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Abstract

On 8 January 1760, on a motion made before the Faculty of Advocates (the Scottish bar), the Faculty passed a resolution, noting that regular lectures were given in the University of Edinburgh on the law of nature and nations, expressing confidence in the professor of that subject, and recommending all those who intended to become ‘candidates for the office of Advocate, to apply to the study of the law of Nature and Nations’, because ‘it concerns the honour of the Faculty that their members should be versant in every part of polite Literature and particularly in the law of Nature and Nations, the fountain of Justice and equity.’1 After noting on 5 January 1762 that this resolution had not been adhered to, and establishing a committee to consider how to make it effective, on 24 November the Faculty resolved as follows:

The Dean and Faculty of Advocates considering that they by their Resolution dated 8th January 1760 recommended it to all young Gentlemen who intended to offer themselves Candidates for the office of Advocate to apply to the study of the Law of Nature and Nations, And considering that it concerns the Honour of the Faculty that their members should be versant in every part of polite literature and more particularly in those parts of Learning which are immediately connected with Roman Law and the Law of Scotland. They therefore recommend to the private Examinators in both Branches of the Law from and after the twelfth Day of June next to examine Candidates upon the Law of Nature and Nations in so far as it is connected with the Civil Law or the Law of this Country. And they hereby appoint That a Copy of this their Resolution to be sent to all the professors in the University of Edinburgh in order that the same may be intimated to the Students at their respective Colleges.2

I am grateful to my colleague Professor Neil MacCormick for his comments on this paper, and for many general helpful conversations about Adam Smith.

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Notes

  1. J.W. Cairns, ‘The Formation of the Scottish Legal Mind in the Eighteenth Century: Themes of Humanism and Enlightenment in the Admission of Advocates’, in N. MacCormick and P. Birks (eds), The Legal Mind: Essays for Tony Honoré (Oxford, 1986), 254–77.

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  2. The Minute Book of the Faculty of Advocates Volume 21713–1750, ed. by J.M. Pinkerton (Stair Society, vol. 32, Edinburgh, 1980), 225.

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  3. A. Grant, The Story of the University of Edinburgh during its first three hundred years (2 vols, London, 1884), i, 232.

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  4. Charles Areskine, professor 1707–34, advertised his lectures in 1711 (see J. Lorimer, ‘The Story of the Chair of Public Law in the University of Edinburgh’, Law Quarterly Review, 4 (1888), 139–58 at 144); William Kirkpatrick was professor for one year only; George Abercromby, professor 1735–59, in 1741 lectured on Grotius’ treatise De jure belli ac pacis (see Scots Magazine, 3 (1741), 371–4 at 371); Robert Bruce, professor 1759–64, was the teacher referred to by the Faculty of Advocates. For the next two professors, see below, text at notes 104–8.

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  5. That it was Grotian natural law is indicated both by the title of the chair which reflects the full title of Grotius’ work, and by Abercromby’s textbook in 1741: see note 7 above. On the spread of similar chairs in Europe, see G. Tarello, Le ideologie della codificazione nel secolo XVIII: Corso di filosofio del diritto (3rd edn, Genoa, n.d.), 90–3. On the development of Grotian natural law, see, e.g., K. Haakonssen, ‘Hugo Grotius and the History of Political Thought’, Political Theory, 13 (1985), 239–65.

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  6. The Minute Book of the Faculty of Advocates Volume 1 1661–1712, ed. by J.M. Pinkerton (Stair Society, vol. 29, Edinburgh, 1976), 65–6 (12 January 1684).

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  7. A. Bower, The History of the University of Edinburgh; Chiefly Compiled from Original Papers and Records, Never Before Published (2 vols, Edinburgh, 1817), i, 329. In the University of Edinburgh, chairs of Civil Law and Scots Law were created in 1710 and 1722 respectively: Grant, op. cit. above note 6, i, 284–8.

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  8. J. Coutts, A History of the University of Glasgow From its Foundation in 1451 to 1909 (Glasgow, 1909), 193–4.

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  9. And probably in Marischall College, Aberdeen: see K.A.B. Mackinnon, ‘George Turnbull’s Common Sense Jurisprudence’, in J.J. Carter and J.H. Pittock (eds), Aberdeen and the Enlightenment (Aberdeen, 1987). 104–10.

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  10. See J. Moore and M. Silverthorne, ‘Natural Sociability and Natural Rights in the Moral Philosophy of Gerschom Carmichael’, in V. Hope (ed.), Philosophers of the Scottish Enlightenment (Edinburgh, 1984), 1–12; and ‘Gershom Carmichael and the Natural Jurisprudence Tradition in Eighteenth-Century Scotland’

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  11. R.L. Emerson, G. Girard and R. Runte (eds), Man and Nature (Proceedings of the Canadian Society for Eighteenth-Century Studies, London, Ontario, 1982), 41–54

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  12. I. Hont and M. Ignatieff (eds), Wealth and Virtue: The Shaping of Political Economy in the Scottish Enlightenment (Cambridge, 1983), 73–87.

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  13. Francis Hutcheson, Carmichael’s successor in Glasgow, preserved the same curriculum, and, at least initially, taught Pufendorf’s treatise: R. Wodrow, Analecta: or, Materials for a History of Remarkable Providences; mostly relating to Scotch Ministers and Christians (4 vols, Maitland Club, Edinburgh, 1842–43), iv, 185. W. Leechman described Hutcheson’s moral philosophy class as covering ‘Natural Religion, Morals, Jurisprudence, and Government’ in ‘The Preface, Giving some Account of the Life, Writings, and Character of the Author’, in F. Hutcheson, A System of Moral Philosophy, in Three Books (2 vols, Glasgow and London, 1755), i. p. xxxvi. See also Hutcheson’s Metaphysicae synopsis: ontologiam, et, pneumatologiam, complectens (Glasgow, 1742); and Philosophiae moralis institutio compendiaria, ethices & juris-prudentiae naturalis elementa continens. Lib. III. (Glasgow, 1742). On Hutcheson, see, e.g., W.R. Scott, Francis Hutcheson (Cambridge, 1900); T.D. Campbell, ‘Francis Hutcheson: “Father” of the Scottish Enlightenment’, in R.H. Campbell and A.S. Skinner (eds), The Origins and Nature of the Scottish Enlightenment (Edinburgh, 1982), 167–85. In Edinburgh, W. Scott, regent in philosophy, then Professor of, in turn, Greek, and Moral Philosophy, published Hugonis Grotii de jure belli ac pads librorum III. compendium, annotationibus & commentaris selectis illustratum. In usum studiosae juventutis academiae Edinensis (Edinburgh, 1707). Scott’s successor in the chair of moral philosophy, John Pringle, taught on the basis of Pufendorf’s treatise De officio: Grant, op. cit. above note 6, i, 273–4; ii, 336–7.

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  14. J. Dalrymple, Viscount Stair, The Institutions of the Law of Scotland Deduced from its Originals, and Collated with the Civil, Canon and Feudal Laws, and with the Customs of Neighbouring Nations (Edinburgh and Glasgow, 1981) (first published in 1681, 2nd edn 1693, but circulated in MS for 20 years before). On Stair and Grotius

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  15. see N. MacCormick, ‘Law, Obligation and Consent: Reflections on Stair and Locke’, Archiv für Rechtsund Sozial Philosophie, 65 (1979), 387–411

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  16. P.G. Stein, ‘The Theory of Law’, in D.M. Walker (ed.), Stair Tercentenary Studies (Stair Society, vol. 33, Edinburgh, 1981), 181–7

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  17. W.M. Gordon, ‘Stair, Grotius and the Sources of Stair’s Institutions’, in J.A. Ankum, J.E. Spruit and F.B.J. Wubbe (eds), Satura Roberto Feenstra sexagesimum quintum annum aetatis complenti ab alumnis collegis amicis oblata (Fribourg, 1985), 571–83. On Stair’s relationship to the Scottish Enlightenment, see, e.g., N. MacCormick, ‘Law and Enlightenment’, in Campbell and Skinner (eds), op. cit. above note 15, 150–66.

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  18. G. Mackenzie, Institutions of the Law of Scotland (2nd edn, Edinburgh, 1688): on other editions, see F.S. Ferguson, ‘A Bibliography of the Works of Sir George Mackenzie Lord Advocate Founder of the Advocates’ Library’, Edinburgh Bibliographical Society Transactions, 1 (1935–38), 1–60 at 30–4.

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  19. See, e.g., A. Bayne, Notes, for the Use of the Students of the Municipal Law in the University of Edinburgh: Being a Supplement to Sir George Mackenzie’s Institutions (Edinburgh, 1731), 2; and Edinburgh University Library, MS Gen. 1735 (notes of lectures given by J. Cuninghame), 2–4.

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  20. For a discussion of methods of teaching, see J.W. Cairns, ‘Rhetoric, Language, and Roman Law: Legal Education for Improvement in Eighteenth-Century Scotland’, Law and History Review, 9 (1991), 31–58.

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  21. The Correspondence of Adam Smith, ed. by E.C. Mossner and I.S. Ross (Oxford. 1977) (hereinafter cited as Corr.), 24–5 (no. 25).

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  22. N.T. Phillipson, ‘Lawyers, Landowners, and the Civic Leadership of Post-Union Scotland: An essay on the Social Role of the Faculty of Advocates 1661–1830 in 18th Century Scottish society’, Juridical Review (N.S.), 21 (1976), 97–120.

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  23. W.R. Scott, Adam Smith as Student and Professor (Glasgow, 1937), 137–8; Corr., 4 (no. 8).

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  24. [A.F. Tytler], Memoirs of the Life and Writings of the Honourable Henry Home of Kames, One of the Senators of the College of Justice, and one of the Lords Commissioners of Justiciary in Scotland: Containing Sketches of the Progress of Literature and General Improvement in Scotland During the Greater Part of the Eighteenth Century (2 vols, Edinburgh, 1807), i, 190–1; Scott, op. cit. above note 24, 46–61; R.H. Campbell and A.S. Skinner, Adam Smith (London and Sydney, 1982), 28–39.

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  25. D. Stewart, Account of the Life and Writings of Adam Smith, LL.D., ed. by I.S. Ross, in A. Smith, Essays on Philosophical Subjects, ed. by W.P.D. Wightman and J.C. Bryce (Oxford, 1980), 274–5.

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  26. A. Smith, Lectures on Jurisprudence, ed. by R.L. Meek, D.D. Raphael and P.G. Stein (Oxford, 1978) (hereinafter the report of 1762–63 will be cited as LJ (A) by original volume and pagination and the report of 1763–64 (dated 1766) as LJ (B) by original pagination).

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  27. D.D. Raphael, ‘Adam Smith and “The Infection of David Hume’s Society”: New Light on an old Controversy, together with the Text of a hitherto unpublished Manuscript’, Journal of the History of Ideas, 30 (1969), 225–48

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  28. R.L. Meek, ‘New light on Adam Smith’s Glasgow lectures on Jurisprudence’, History of Political Economy, 8 (1976), 439–77.

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  29. A. Smith, The Theory of Moral Sentiments, ed. by D.D. Raphael and A.L. Macfie (Oxford, 1976) (hereinafter cited as TMS and by paragraph rather than page). Though here what is crucial are the first two editions of 1759 and 1761 which appeared during Smith’s tenure of the Glasgow chair, since I am trying to locate the influence of his theory at a specific time, the Glasgow edition will be used as it gives variants. Citations to later passages will be indicated as such for particular purposes.

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  30. TMS, II. ii. 2. 1; on Smith’s development of this concept, see Raphael, op. cit. above note 34; and ‘The Impartial Spectator’, in A.S. Skinner and T. Wilson (eds), Essays on Adam Smith (Oxford, 1975), 83–99; see generally on the above

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  31. A.S. Skinner, ‘Adam Smith: Society and Government’, in E. Attwooll (ed.), Perspectives in Jurisprudence (Glasgow, 1977), 195–220 at 196–202

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  32. T.D. Campbell, Adam Smith’s Science of Morals (London. 1971) 85–185.

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  33. On the use of stadial theories in the eighteenth century, and the development of the fourstage theory, see R.L. Meek, ‘Smith, Turgot and the “Four Stages” Theory’, History of Political Economy, 3 (1971), 9–27; Social Science and the Ignoble Savage (Cambridge, 1976)

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  34. P. Stein, Legal Evolution: The Story of an Idea (Cambridge, 1980), 15–50. In ‘The Four Stage Theory of the Development of Societies’, in P. Stein, The Character and Influence of the Roman Civil Law: Historical Essays (London and Ronceverte, 1988), 395–409, Professor Stein points out that we need to be cautious about identifying a fourstage theory when there is really only a threestage. While I agree with him overall, I am not entirely convinced by his identification of Lord Kames as the originator of the fourstage theory.

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  35. N. MacCormick, ‘Adam Smith on Law’, Valparaiso University Law Review, 15 (1981), 243–63 at 248.

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  36. A. Smith, Lectures on Rhetoric and Belles Lettres, ed. by J.C. Bryce (Oxford, 1983), ii, 197–200 (hereinafter cited as LRBL by original volume and page)

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  37. A. Smith, An Inquiry into the Nature and Causes of the Wealth of Nations, ed. by R.H. Campbell and A.S. Skinner, textual editor W.B. Todd (2 vols, Oxford, 1976), V.i.f.44 (hereinafter cited as WN by paragraph), he made a similar point about the use of precedent in Rome. Given what he has said about ‘the antients’ not using precedent in LRBL, either he has changed his mind, or, more likely, and as I have indicated in my text, was thinking of forensic speeches as the context would imply.

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  38. K. Haakonssen, The Science of a Legislator: The Natural Jurisprudence of David Hume and Adam Smith (Cambridge, 1981), 152–3.

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  39. D. Lieberman, The Province of Legislation Determined: Legal Theory in Eighteenth-Century Britain (Cambridge, 1989), 1–28.

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  40. LJ (B), 327. See generally D. Winch, Adam Smith’s Politics: An Essay in Historiographic Revision (Cambridge, 1978), esp. at 158–60.

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  41. WN, IV.2.39. On Smith’s ‘science of legislation’, see Winch, op. cit. above note 96; and ‘Science and the Legislator: Adam Smith and After’, Economic Journal, 93 (1983), 501–20; and J.H. Burns, ‘Scottish Philosophy and the Science of Legislation’, in Royal Society of Edinburgh Occasional Papers, Nos. 2–6 (1985), 11–29. On the science of legislation generally, see J.H. Burns, ‘The Fabric of Felicity: The Legislator and the Human Condition’, in P. King (ed.), The Study of Politics: A Collection of Inaugural Lectures (London, 1977), 207–24.

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  42. H. Arnot, The History of Edinburgh (Edinburgh, 1779), 398. It is notable that the Faculty of Advocates at the same period also encouraged intending members to attend classes in Universal History in Edinburgh. They still encouraged this in 1768 (F.R. 2, above note 1, 259). See Cairns, op. cit. above note 3, 265.

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  43. See K. Haakonssen, ‘John Millar and the Science of a Legislator’, Juridical Review (1985), 41–68; J.W. Cairns, ‘John Millar’s Lectures on Scots Criminal Law’, Oxford Journal of Legal Studies, 8 (1988), 364–400

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  44. J.W. Cairns, ‘Eighteenth Century Professorial Classification of English Common Law’, McGill Law Journal, 33 (1987), 225–44 at 230 and 233–5.

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  45. See, e.g., W.C. Lehmann, John Millar of Glasgow 1735–1801: His Life and Thought and his Contributions to Sociological Analysis (Cambridge. 1960). 30–42.

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  46. H. Arnot, The History of Edinburgh (2nd edn, Edinburgh, 1788), 398.

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  47. See A. Smith, Lectures on Justice, Police, Revenue and Arms Delivered in the University of Glasgow, ed. by E. Cannan (Oxford, 1896), xv–xvii. I am indebted to Professor MacCormick for bringing this to my attention.

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  1. John W. Cairns
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Editor information

Editors and Affiliations

  1. Meijo University, Nagoya, Japan

    Hiroshi Mizuta (Professor of the History of Social Thought) (Professor of the History of Social Thought)

  2. Nagoya University, Nagoya, Japan

    Hiroshi Mizuta (Professor of the History of Social Thought) (Professor of the History of Social Thought)

  3. Tokyo Keizai University, Tokyo, Japan

    Chuhei Sugiyama (Professor of Economics) (Professor of Economics)

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© 1993 Hiroshi Mizuta and Chuhei Sugiyama

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Cairns, J.W. (1993). Adam Smith’s Lectures on Jurisprudence: Their Influence on Legal Education. In: Mizuta, H., Sugiyama, C. (eds) Adam Smith: International Perspectives. Palgrave Macmillan, London. https://doi.org/10.1007/978-1-349-22520-0_4

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