Nicholas Phillipson
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Smith’s pupil John Millar put it more tactfully in an account of Smith’s teaching written for Dugald Stewart, by describing Montesquieu as the Bacon to Smith’s Newton, the philosopher who had cleared the way for the truly philosophical approach to jurisprudence that Smith was to develop.27 The Scots were quick to note the classic ambivalences and lacunae in Montesquieu’s system, and the unresolved tensions in his treatment of the ‘physical’ and ‘moral’ determinants of the spirit of the laws. Montesquieu was seriously interested in contemporary thinking about the effects of climate and geography on the culture of a people, and its value in explaining, for example, the apparent ‘indolence’ and ‘barbarity’ of peoples living in equatorial climates as compared with the supposed ‘industriousness’ of northern Europeans. On the other hand, his discussion of ‘moral’ causation seemed to suggest that under certain circumstances, economic, political and cultural circumstances might be powerful enough to override the constraints of geography and climate; but what these were was far from clear. What was equally troubling was Montesquieu’s definition of law itself. Laws, he had said, are ‘the necessary relations arising from the nature of things. In this sense all beings have their laws: the Deity has his laws, the beasts have their laws, and man has his laws’ – a view that, Hume noted, rested on a quasi-theological and, therefore, ‘unphilosophical’ premise.28 He also questioned the importance Montesquieu had attached to ‘physical’ over ‘moral’ causation in determining the spirit of a system of laws, by calling attention to the variety of systems of law, customs and manners that could exist within the same geographical and climatic region; his contrast between the laws, customs and manners of Highland society and those of the Lowlands in Scotland was particularly telling.29 What he might have pointed out (but didn’t) was that Montesquieu had failed to identify the precise nature of the spirit which apparently determined the culture of a people. It was a lacuna in Montesquieu’s thinking Smith was to address directly.
Once again, no texts, reports or notes of Smith’s Edinburgh course have survived; all we know of his thinking comes from a set of student notes taken in Glasgow in 1762–3 and from another which seems to derive from a rather different course and is, rather puzzlingly, dated 1766. The question of whether these notes can be taken as a guide to his thinking in 1750–51 is controversial. Some suggest that the remarkable conjectural history of property on which Smith’s analysis depends belongs to a later period in his intellectual development, or was more probably undeveloped in 1750.30 But his thinking was certainly sufficiently developed to sustain a discussion of the theory and practice of government because he referred to this himself in an unpublished paper given in 1755. Although this paper has not survived, it was seen by Dugald Stewart, who commented that ‘a pretty long enumeration is given of certain leading principles, both political and literary, to which he was anxious to establish his exclusive right.’ ‘Many of the most important opinions in The Wealth of Nations are there detailed,’ Stewart reported;
but I shall quote only the following sentences: ‘Man is generally considered by statesmen and projectors as the materials of a sort of political mechanics. Projectors disturb nature in the course of her operations in human affairs; and it requires no more than to let her alone, and give her fair play in the pursuit of her ends, that she may establish her own designs’. – And in another passage: ‘Little else is requisite to carry a state to the highest degree of opulence from the lowest barbarism, but peace, easy taxes, and a tolerable administration of justice; all the rest being brought about by the natural course of things. All governments which thwart this natural course, which force things into another channel, or which endeavour to arrest the progress of society at a particular point, are unnatural, and to support themselves are obliged to be oppressive and tyrannical. A great part of the opinions (he observes) enumerated in this paper is treated of at length in some lectures which I have still by me, and which were written in the hand of a clerk who left my service six years ago [i.e. in 1749–50] … They had all of them been the subjects of lectures which I read at Edinburgh the winter before I left it, and I can adduce innumerable witnesses, both from that place and from this, who will ascertain them sufficiently to be mine.’31
Smith’s somewhat pernickety claim that he had offered some distinctive comments on government and the progress of opulence in Edinburgh in 1750–51 is striking in the present context because it refers to the final part of the course that was given in Glasgow, the arguments of which formed the natural conclusion to a highly developed system of jurisprudence. It is hard to see how this most systematically minded of philosophers could have offered these conclusions in Edinburgh without having established at least the conceptual framework he needed to sustain them. As in the case of the lectures on rhetoric, it seems more plausible to suppose that the foundations of his system were laid in Edinburgh than to suppose that they weren’t.
Once again, Smith presented himself to his audience as a revisionist who proposed to rebuild an important discipline on new foundations. He began by defining the purposes of jurisprudence in Pufendorfian terms: ‘Jurisprudence is the theory of the rules by which civil governments ought to be directed. It attempts to shew the foundation of the different systems of government in different countries and to shew how far they are founded in reason.’ And in enumerating the purposes of government he went on to announce that as well as discussing the problems of maintaining the rules of justice and national security he would discuss ‘what we call police’ – what we would call the practice of government – and, in particular, its role in promoting opulence. It would have been clear to anyone who knew anything of Pufendorf or Hutcheson that this meant that he was going to raise the question of the role of opulence in promoting justice and sociability.32
For Smith, the reasonableness of any system of justice had more to do with a ‘sense of justice’ than with any more abstract and theologically driven principle, thus raising fundamental questions about what that sense was and where it came from. Once again Smith’s reply was encapsulated in an axiom which was to be illustrated with examples drawn from common life and history. The axiom on which his system of rhetoric was based had been a commonplace that everyone would have known. His jurisprudence was based on one that was anything but commonplace and far from self-evident, that our sense of justice is enshrined in the justified resentment we feel when someone’s rights are violated. As he put it, ‘Justice is violated whenever one is deprived of what he has a right to and could justly demand from others, or rather, when we do him any injury or hurt without a cause’.33 But how were we to know when this sense of resentment was justified? Smith replied that it was justified when ‘an impartial spectator would be of opinion he was injured, would join with him in his concern and go along with him when he defended his subject in his possession against any violent attack, or used force to recover what had been thus wrongfully wrested out of his hands’.34
As the student note-taker commented, when Smith gave these lectures at Glasgow he was able to refer his students to his discussion of the sentiment of justice in his moral philosophy lectures for clarification of the psychology on which this axiom was based. In Edinburgh, that would not have been possible. Hutcheson’s former students might have noted affinities with the view that our ideas of justice were shaped by some sort of internal moral sense, though they would have soon been reminded that Smith did not believe in Hutcheson’s view that this moral sense was hard-wired in the human personality. Some would have remembered from school that Epictetus and Addison had thought that holding interior conversations with imaginary impartial spectators was an excellent way of learning how to cope with the resentments of everyday life, and anyone who had heard Smith lecture on the origins of language might have realized that this impartial spectator was a product of the imagination and language, a fictional resource we call into existence in response to the pressure of moral need. In the course of the lectures it soon became clear that Smith thought of i
mpartial spectators as the embodiment of what he called ‘the common sense’ of mankind, as personalized sources of ethical guidance which play an unspecified but evidently crucial role in directing our moral behaviour. And it was in this ‘sense’ of justice that the spirit of the laws really resided. Not surprisingly, his discussion of the impartial spectator was to be the centrepiece of the system of moral philosophy he was to develop at Glasgow.
Smith’s jurisprudence was derived from a theory of rights borrowed from Hume. Hume had shown that nearly all of our understanding of rights was derived from our experience of living in property-owning societies and that it was on this that our understanding of the necessity of government, morality and improvement was based; in other words, property was the mother of the civilizing process. The sentiments of right and justice were thus acquired, were the product of necessity and would take different forms in different types of societies. Hume had shown little interest in theorizing these insights. Smith’s mighty achievement was to develop Hume’s insights into a general theory of jurisprudence and it is probable that he began this work in Edinburgh in 1750–51. His theory was derived from a conjectural history of property that explained the evolutionary process by which a society progresses from its savage to its pastoral, feudal and commercial stages of development. By 1762, Smith had worked up a version of this conjectural history of such economy and precision that it is worth quoting at length. As in the discussion of the origins of language, he began by considering human society at its most primitive, but in a way that underlined the way in which population pressures must have been responsible for forcing some hunting societies to institute the simplest system of private property – herding.
If we should suppose 10 or 12 persons of different sexes settled in an uninhabited island, the first method they would fall upon for their sustenance would be to support themselves by the wild fruits and wild animals which the country afforded. Their sole business would be hunting the wild beasts or catching the fishes. The pulling of a wild fruit can hardly be called an imployment. The only thing amongst them which deserved the appellation of a business would be the chase. This is the age of hunters. In process of time, as their numbers multiplied, they would find the chase too precarious for their support. They would be necessitated to contrive some other method whereby to support themselves. At first perhaps they would try to lay up at one time when they had been successful what would support them for a considerable time. But this could go to no great length. The most naturally contrivance they would think of, would be to tame some of those wild animalls they caught, and by affording them better food than what they could get elsewhere they would enduce them to continue about their land themselves and multiply their kind. Hence would arise the age of shepherds. They would more probably begin first by multiplying animalls than vegetables, as less skill and observation would be required. Nothing more than to know what food suited them. We find accordingly that in almost all countries the age of shepherds preceded that of agriculture. The Tartars and Arabians subsist almost entirely by their flocks and herds. The Arabs have a little agriculture, but the Tartars none at all.
Smith continued, discussing the origins of that system of fixed and latterly moveable property on which civilization as the Enlightenment knew it depended.
But when a society becomes numerous they would find a difficulty in supporting themselves by herds and flocks. Then they would naturally turn themselves to the cultivation of land and the raising of such plants and trees as produced nourishment fit for them. They would observe that those seeds which fell on the dry bare soil or on the rocks seldom came to any thing, but that those which entered the soil generally produced a plant and bore seed similar to that which was sown. These observations they would … gradually advance in to the age of agriculture. As society was farther improved, the severall arts, which at first would be exercised by each individual as far as was necessary for his welfare, would be seperated; some persons would cultivate one and others others, as they severally inclined. They would exchange with one an other what they produced more than was necessary for their support, and get in exchange for them the commodities they stood in need of and did not produce themselves. This exchange of commodities extends in time not only betwixt the individualls of the same society but betwixt those of different nations. Thus we send to France our cloths, iron work, and other trinkets and get in exchange their wines. To Spain and Portugal we send our superfluous corn and bring from thence the Spanish and Portuguese wines. Thus at last the age of commerce arises. When therefore a country is stored with all the flocks and herds it can support, the land cultivated so as to produce all the grain and other commodities necessary for our subsistance it can be brought to bear, or at least as much as supports the inhabitants when the superfluous products whether of nature or art are exported and other necessary ones brought in exchange, such a society has done all in its power towards its ease and convenience.35
This conjectural history of property was to be as fundamental and characteristic of Smith’s thinking about the spirit of the laws as Montesquieu’s theory of climate, and has proved to be much more durable historiographically. But it no more provided Smith with a complete account of the sense of justice than Montesquieu’s theory of climate had provided him with an account of the spirit of any system of laws. For Smith the sense of justice was not only shaped by the effects of property, but of government and police on a people’s understanding; with his theory of property in place, he was in a position to develop complementary conjectural histories of government and police. These were built on another of David Hume’s crucial insights: that it was only once members of a society had acquired a sense of the necessity of property that they would understand the need to submit to some form of regular government. After all, as Smith put it, property was ‘the grand fund of all dispute’, creating a need for ‘settled laws – or agreements concerning property’ and the means of enforcing them. In the first shepherd societies that was a task for the whole people; in more developed shepherd societies, for chiefs and, eventually, hereditary rulers. But property was also a cause of inequality and resentment, leading Smith to comment, sardonically, in 1762, in words which would have delighted every Mandevillian,
Laws and government may be considered in this and indeed in every case as a combination of the rich to oppress the poor, and preserve to themselves the inequality of the goods which would otherwise be soon destroyed by the attacks of the poor, who if not hindered by the government would soon reduce the others to an equality with themselves by open violence. The government and laws hinder the poor from ever acquiring the wealth by violence which they would otherwise exert on the rich; they tell them they must either continue poor or acquire wealth in the same manner as they have done.36
This was to enter more deeply into controversial territory. To argue as Hume and Smith were arguing, that regular government had only become necessary with the invention of property, and to claim that the first systems of governments were the work of nomadic, pastoral tribes who had lived by war and plunder, was to cut across some of the most deep-seated and emotive assumptions on which the so-called ‘vulgar Whiggery’ of the day rested. It challenged the notion that the first societies of property-owners had been peaceable societies of farmers, and Lockian assumptions that the origins and authority of governments rested on contracts and the consent, tacit or otherwise, of their subjects. These were assumptions Hume had challenged in the Three Essays on the grounds that they were wildly implausible; Smith now orchestrated the challenge by showing that they cut across the evidence of history. He drew on Homer and Thucydides to show that the pastoral barbarians who had settled Attica had done so for reasons of defence, creating camps which would in time become cities; the less fortunate Arabs and Tartars who lived in desert lands had been condemned to an eternal state of nomadic barbarism.37 He showed how the first systems of settled property had been created by the rulers of these newly settled peoples, who had parcelled out lands to
their leading followers. Before long, Smith thought, somewhat sentimentally, the pleasures of possession and cultivation would arouse an ‘amor patriae’ which would be the cause of new jealousies, new assertions of power by kings, and new causes of conflict. In time these monarchies would be displaced by the fractious aristocratic republics which were characteristic of the world of Greek antiquity.38
This conjectural history of the origins of civilization, derived from a melding of philosophy and a revisionist reading of ancient literature, was carefully organized to underline one of the great themes of Smith’s jurisprudence, the ever-menacing power of a landed nobility. Political philosophers from Aristotle to the influential seventeenth-century theorist James Harrington had taught that power went with property. Smith showed that the power of a landed nobility to destroy monarchies and republics at will was as old as history and had survived to the present. In a pregnant comment reported in 1762, he pointed out that it was only in a modern, commercial society based on a system of movable property that it had become possible to envisage the emergence of states whose governments were capable of checking the power of great landowners.39 So far from being the only bastion against despotism, as Montesquieu had thought, Smith would believe for the rest of his life that aristocracy posed a continuing threat to justice, sociability and the progress of civilization.
Smith’s account of the origins of civilization also provided the analytical foundations of a discussion of the systems of Roman and feudal law that had developed throughout Europe before and after the fall of the Roman Empire. Each subject had an obvious attraction for a Scottish audience with a large contingent of lawyers. Together they provided Smith with the resources he needed to explain the rise of European civilization. He revisited classic accounts of the fall of the Roman Empire, the settlement of Europe by the nomadic barbarian tribes and the origins of the feudal system that had done so much to shape the legal systems of England and Scotland. So far from being a system that had strengthened the powers of the nobility, weakened the powers of kings and laid the foundations of a system of limited monarchy safeguarded by the nobility, Smith saw the origins of the feudal system as acts of policy by a formidable line of English and Scottish kings – a line of argument originally proposed by Henry Home in his essay on the origins of the feudal system. These kings had been determined to curb the power of the nobility and ‘from then the power of the king was as we evidently see greatly increased, and the government administered in an orderly manner; the times after the conquest appear clear and enlightend compared with those of the Saxon race’.40 For good government, and the liberty which good government made possible, demanded the strict administration of justice and the kings that were best able to do so were ‘martiall, conquering, military kings’ like Edward I and Henry IV.41 Far from being the guardians of a system of limited monarchy, as Montesquieu and so many of Smith’s contemporaries liked to believe, the nobility had unsettled the order and good government of every country in Europe and it was Smith’s view, shared by Scottish theorists since the Glorious Revolution, that their power had only started to decline with ‘the introduction of arts, commerce and luxury’ in the modern age. What interested Smith and so many of his Scottish contemporaries was how the nobility’s resurgence could be contained in an age of commerce.