Book Discussion: Lord Kames: Legal and Social Theorist
Careful readers of the blog will recall that last month, on 15 January, the Centre for Legal History at Edinburgh hosted a discussion of the new book by Andreas Rahmatian of the University of Glasgow, entitled Lord Kames: Legal and Social Theorist (Edinburgh: Edinburgh University Press, 2015) (ISBN: 9780748676736). £90.
Dr Rahmatian first gave a presentation of his book. This was followed by a critique by Dr James Harris, Reader in the History of Philosophy at the University of St Andrews. Dr Rahmatian then responded. Dr Rahmatian’s presentation, Dr Harris’s comments and Dr Rahmatian’s response are set out below.
(Readers of this Blog post may be interested to note that A symposium to mark the publication of Hume. An Intellectual Biography by James A. Harris will take place on Friday, 11 March, 2 – 5.30 pm, at the Meadows Lecture Theatre, William Robertson Wing, Old Medical School, 4 Teviot Place, Edinburgh.)
Dr Rahmatian on his text:
First, I would like to read two texts to you, one is not by Lord Kames, and the other one is:
1) Alfred Marshall, Principles of Economics, 8th ed. (1920), chapter 2 § 1, p. 73:
‘Thus though the brute and the savage alike have their preferences for choice morsels, neither of them cares much for variety for its own sake. As, however, man rises in civilization, as his mind becomes developed, and even his animal passions begin to associate themselves with mental activities, his wants become rapidly more subtle and more various; and in the minor details of life he begins to desire change for the sake of change, long before he has consciously escaped from the yoke of custom. The first great step in this direction comes with the art of making a fire: gradually he gets to accustom himself to many different kinds of food and drink cooked in many different ways; and before long monotony begins to become irksome to him, and he finds it a great hardship when accident compels him to live for a long time exclusively on one or two kinds of food.’
2) Lord Kames, Historical Law-Tracts, 2nd ed. (1761), Tract 3, ‘Property’, pp. 80-81:
‘Man by his nature is fitted for society, and society is fitted for man by its manifold conveniencies [sic]. … A society where every man should be bound to dedicate the whole of his industry to the common interest, would be unnatural and uncomfortable, because destructive of liberty and independence. The enjoyment of the goods of fortune in common, would be not less unnatural and uncomfortable: There subsists in man a remarkable propensity for appropriation; and a communion of goods is not necessary to society, though it may be indulged in some singular cases. And happy it is for man to be thus constituted. Industry, in a great measure, depends on property; and a much greater blessing depends on it, which is the gratification of the most dignified natural affections. What place would there be for generosity, benevolence, or charity, if the goods of fortune were common to all? These noble principles, being destitute of objects and exercise, would for ever lie dormant; and what would man be without them? – a very groveling [sic] creature; distinguishable indeed from the brutes, but scarce elevated above them. Gratitude and compassion might have some slight exercise; but how much greater is the figure they make in a state of divided property? The springs and principles of man are adjusted with admirable wisdom to his external circumstances; and these in conjunction form one regular constitution, harmonious in all its parts.’
The second text, by Kames from Tract 3 on property from his Historical Law-Tracts, is a passage that is characteristic for Kames. The first text is by Alfred Marshall, Principles of Economics. Marshall, the founder of the Cambridge School of Neo-Classical Economics who was followed by diverse figures of economics, such as John Maynard Keynes and Milton Friedman, was undoubtedly one of the principal makers of modern economics. His contribution is enmeshed so much in modern textbooks of economics that the usual student is not even aware of it. The theory of the partial market equilibrium, the demand-oriented, short-term analysis of supply and demand (against the Classical School of Economics from Adam Smith until, and in my opinion including, Karl Marx) and especially the diagram of the interaction of supply and demand which shows the equilibrium price in the intersection (the ‘Marshallian cross’) are all but a few examples of this lasting legacy. Today this economic philosophy replaces increasingly traditional political philosophy. But Marshall’s organic idea of economic development has much older roots. One can see that the mind-set, and the way of argumentation when describing the socio-economic development of societies and their legal institutions was fundamentally shaped by the Scottish Enlightenment, especially by Adam Smith, but, indirectly through Smith, by Lord Kames.
Kames was Smith’s mentor and teacher for a while and both remained on friendly terms until Kames’s death in 1782 at the age of 86 years. Smith’s beautiful statement about Kames ‘We must every one of us acknowledge Kames for our master’, need not be qualified too much in my view, even if it has been related by the unavoidable Boswell. I have shown in my book that Kames should not be used to contrast the genius Smith against a pedestrian Kames. The temptation to which some intellectual historians yielded, to pass judgment from hindsight against Kames in favour of Smith and particularly Hume, Kames’s other most famous protégé for a while, is quite inappropriate. In fact, Kames was a remarkably original and sometimes unpredictable and capricious thinker, although an unimaginative scholar will probably be confused and disconcerted by his originality if he notices it at all. Kames’s influence on Smith’s thinking is considerable and some of Smith’s concepts derive directly from Kames, such as the strict distinction between justice and benevolence in The Theory of Moral Sentiments (which can still be found in Rawls and Fuller) or the systematisation of the (five) rules of taxation in the Wealth of Nations.
The second text by Lord Kames is part of his principal piece on property. Exceptionally I may be permitted to make a personal comment here: these lines were the first ever text by Kames I read. They had a great influence on me; his property theory which I elaborated on in my article ‘The Property Theory of Lord Kames’ (2006) were the starting point of my own theory of dematerialised property for copyright, intellectual property rights and traditional property rights in my book on ‘Copyright and Creativity’ (2011), and that theory of dematerialised property also forms the basis of my current project on a legal theory of money. Thus I owe a lot to Lord Kames and one can still learn much from him, often also in disagreement to him. Kames’s style is direct, generally clear, somewhat dark, sarcastic and cantankerous, with a sceptical position towards the ‘good’ nature of man. And he shares a very welcome quality with all great political philosophers of the early modern period, like Machiavelli, Hobbes, Locke, Montesquieu or Rousseau: he was not an academic philosopher. Hence he knows what he is talking about, even where he is mistaken.
I have just moved Kames near to the political philosophers. If this term is understood broadly, then it is an acceptable one: he was a moral philosopher, and his political philosophy and his concepts of law, society and legal science are extensions and applications of his moral philosophy. What Kames ultimately really was, is difficult to describe, and having written a book about him does not help. He was a learned uomo universale, a practising lawyer and a judge; he was a philosopher and one of the originators of the Common Sense School of the Scottish Enlightenment. The Essays on the Principles of Morality and Natural Religion are Kames’s most important and most comprehensive philosophical work. They are, however, not a comprehensive philosophical text, rather a critical answer to David Hume, especially a criticism of Hume’s occasionalist concept of causality and his idea of justice as not a natural, but artificial (conventionalist, utilitarian) virtue, as well as a critique of Hume’s conventional (contractual) idea of property. Scholars who referred to Kames when discussing Hume stressed that his Essays are much inferior to Hume’s philosophical works – obviously, but that is not the point. Kames’s protégé Thomas Reid, the foremost representative of the Common Sense School who was influenced significantly by Kames, is certainly the more polished and accomplished philosopher, but in my opinion more unexciting than Kames. A philosophically inclined mind will read the truly great authors to learn about the philosophical ideas and problems – such as Descartes, Spinoza, Hume and Kant (if one stays in the early modern period) – and will then consult someone who prompts us to ask questions and to think with or against the author: Reid does not stimulate much, Kames a lot, especially if one is also a lawyer.
I have argued in my book and in earlier works that the Essays are the basis for all of Kames’s thought, being moral philosophy, aesthetics, law and legal history and philosophical sociology/anthropology and history. The Essays set out his moral philosophy, centred around the innate moral sense, a legacy from Hutcheson and Shaftesbury, but with some significant varieties. The moral quality of beauty in Kames’s aesthetics leads to morality proper: the moral beauty enables man to distinguish right from wrong, and to disapprove of or, in case of primary virtues such as justice, to punish for transgressions. Here we have the blueprint of the architecture of Kames’s legal philosophy. Justice, originating from an innate moral sense (against Hume), must be enforced by the law, and this is also the basis for property rights (‘the sense of property’) and for delictual liability and criminal offences. However, the secondary virtue of benevolence is not enforced by the law, only morally a desired and commendable virtue, unless there is a special connection between human beings (covenants, relationship between parents and children, persons in distress): in this case benevolent actions are exceptionally also enforced by the law: this is the area of equity, as Kames explains at length in his Principles of Equity (1760).
However, any understanding of society, the law and legal institutions requires an understanding of historical processes and of anthropological development. Only then it is possible to create a ‘legal science’ based on reason. I showed in my book that the famous stadial theory of societal development characteristic of the Scottish Enlightenment is very substantially invented by Kames (especially in the British Antiquities, the Historical Law-Tracts, and the Sketches of the History of Man), at least with regard to the connection to legal institutions, such as property and criminal law. It does not derive from Adam Smith, as is often maintained in the literature. Different from Adam Ferguson, in Kames’s stage theory the law is a constituent factor, not a sociological detail. Furthermore, the number of stages (usually: four) is rather immaterial and the academic discussion about whether there are three or four stages misses the point, because it overlooks the rhetorical-argumentative aspect of this philosophy of history (‘conjectural history’). This idea of an evolutionary history is a normative presentation device that seeks to bring an argument in favour of socio-economic progress which this instructive image of social stages of development provides. That image is so strong that it can also be found in the example of the text by Marshall at the beginning, combined with some social Darwinism, as was typical of the nineteenth and early twentieth centuries.
Kames as a lawyer sought to turn law into a philosophically informed legal science, whereby the natural philosophy and the evolving natural sciences of the seventeenth and eighteenth centuries in the sense of Robert Boyle and Isaac Newton were role models. He did not succeed, in fact, he gave very few indications as to the methods of such a legal science, but, to his credit, nobody else after him really did in the Common Law world. The development of a modern legal science was left especially to Savigny – one of the founders of the Historical School of Law in Germany. The historically informed research about the law as a basis for legal science and understanding brings the Historical School rather close to Kames. It is too complex to discuss here that there are nevertheless fundamental differences between Kames and the approach of the Romantic period and the Historical School, except perhaps one aspect: Kames was a legal reformer and an Enlightenment man who took Kant’s sapere aude (dare to know) seriously, and he is the one author who addressed this appeal so directly and clearly to lawyers specifically. This idea of law being mutable and adaptable to reason, a potentially ahistorical position, and (in theory) against the postulation of Savigny and the Historical School (hence Savigny’s objection to legal codification) enables legal reform and change, especially in the sense of the early social and economic liberalism for which Kames fought so strongly. Consequently, he was an ardent opponent of the feudal system and especially the entail which blocked the transferability of land and the ability of everyone to succeed irrespective of his class. (Kames would certainly have welcomed the 28 November 2004, when feudal land holding was formally abolished in Scotland.) Kames cannot be blamed for not realising that this dream of early liberalism is bound to fail in the long run (one could only start seeing that since the first half of the nineteenth century but many still believe in this ideal). But Kames’s interest in legal reform often made him a speculative writer and usually too unreliable for being an Institutional Writer of Scots Law. But here lies arguably Kames’s strength: he is too interesting and versatile to be just an Institutional Writer.
For his time and his position, Kames’s trenchant criticism of the feudal system was most problematic, if not almost subversive: we forget that today. Equally, it is still underestimated how risky it was then to claim, that there is no free will and God deceives (a Dieu trompeur), as Kames did in his philosophical Essays. Since the natural laws, created by God as the first mover, determine the course of the world unalterably, there cannot be free will, and what we perceive as free will is only a benevolent deception by God for moral reasons. That view, however, did bring him close to excommunication in 1755. Kames also postulates in his dauntlessly consequent thinking (a feature that shows him as a realistic practising lawyer) that since God is the first mover and cause of everything in the world, he must also be the cause of all evil, because it cannot come from elsewhere.
Today one may consider these questions as past philosophical disputes of the eighteenth century, but apart from the fact that the re-emergence of fundamentalist religiosity makes these questions more relevant again, one may give a more modern example to envision the impact of such daring postulations. For instance, one may say that orthodox Islam, Christianity or Judaism are strictly speaking irreconcilable with modern democratic systems and therefore have to be kept in check by the state and the law. One can imagine the reactions if a public figure makes a statement to that effect. Kames would not have had this problem because he, as an universalist of the Enlightenment period who believed in an innate sense common to mankind, would have advocated the abolition of rules of any kind, religious or secular, against a ‘natural’ moral sense which is ‘naturally’ (in fact hypothesised) against bigotry and religious orthodoxy. He postulated such a moral sense when he needed it as the ultimate anchor for his argument, such as the sense of property, the sense of beauty or the sense of Deity. Interestingly, despite the strong concern about the development of commerce in the Scottish Enlightenment, nobody postulated a sense of commerce.
I have organised my book according to Kames’s philosophical framework: aesthetics serves as the preliminary chapter for the chapters on moral philosophy, political philosophy, anthropology and commerce. The following chapters deal with legal history and the special component of conjectural history, property, equity, obligations and criminal law. The book finishes with a chapter on Kames’s remarkable influence on some of the founders of the United States: Benjamin Franklin, John Adams, Thomas Jefferson, and James Wilson.
I do not know whether I have obeyed in my book Kames’s Enlightenment imperative to write simply and clearly to be able to enlighten non-specialists. But I want to finish with a quote from a chapter in Kames’s Sketches of the History of Man on taxes and finances which stresses his Enlightenment agenda:
‘It is of importance, that taxes, and their effects, be understood, not only by the members of our parliament, but by their electors: a representative will not readily vote for a destructive tax, when he cannot hope to disguise his conduct. The intention of the present sketch, is to unfold the principles upon which taxes ought to be founded, and to point out what are beneficial, what noxious. I have endeavoured to introduce some light into a subject involved in Egyptian darkness; and if that end be attained, I shall die in the faith that I have not been an unprofitable servant to my country.’
 Rahmatian, Lord Kames (2015), pp. 51-53.
 Adam Smith, Wealth of Nations, book V, ii, b (1976), p. 827.
 Rahmatian, Lord Kames (2015), p. 144. In Kames’s discussion of the progress of religion there are 6-7 stages, and of criminal law 3-5 stages.
 See Rahmatian, Lord Kames (2015), pp. 196-197, 211.
 Lord Kames (Henry Home), Essays on the Principles of Morality and Natural Religion (2005, Liberty Fund edition, ed. C. Moran), p. 253 (version of the 1st ed. of 1751).
 Lord Kames (Henry Home), Essays on the Principles of Morality and Natural Religion (2005, Liberty Fund edition, ed. C. Moran), p. 111, note.
 Lord Kames (Henry Home), Sketches of the History of Man (2007, Liberty Fund edition, ed. J. A. Harris), book II, sketch 8, p. 432.
Dr Harris’s comments:
Rahmatian’s achievement in this book is to bring out the connectedness of Kames’s interests, and of his books — eg and especially the connections between K’s moral philosophy, and his interest in ‘criticism’, with his legal writings. This, though, is not a matter of the application of speculative principles to practice: on the contrary, Rahmatian portrays Kames as coming at his more philosophical principles by way of his practical work, especially in law. So here is Kames as a properly Baconian, inductivist thinker. In this connection, it is significant, as Rahmatian notes, that Kames never went to university, and so was not educated into the idea that moral philosophy is foundational to jurisprudence. What I want to do in this brief reflection on Rahmatian’s book is raise some questions that the book makes me want to think about further in future work on Kames. I have to produce an edition of the Historical Law-Tracts [HLT] for Liberty Fund, and Rahmatian’s book helps a non-lawyer understand that book better. It also helps get into focus what exactly Kames was doing when he engaged in historical investigation into the areas of law he specialised in as an advocate and judge.
I’ll focus on Rahmatian’s chapter on property — accepting R’s claim that ‘one of Kames’s greatest and lasting contributions lies in his historical, legal and anthropological-sociological property theory’ (220). Kames approached property as a practising lawyer who wanted to understand better one of law’s central concerns. And for Kames, that involved treating property historically. But Kamesian legal history is of course not history as it would be done done now. Understanding property law as it was in mid 18th-century Scotland began, according to Kames, with an essentially conjectural story about the pre-historical origins of the idea of property as such, and about how the idea of property developed in order to become what it was now. Historical evidence, in the normal sense of the word, has only a small role to play in this kind of history. But this didn’t matter to Kames, nor to most of his contemporaries, because the fundamental concern was, as Rahmatian stresses, normative. That is, the goal was to identify differences between property law as it is, and property law as it should be. According to Kames, telling the story of the origins of property and its development was a matter of bringing out what a natural history of property would look like, the better to characterise the differences between law as it is, and law as it should be. Just as telling the story of the origins of government was primarily a way of identifying faults in the current system of politics. Not history for its own sake, then, but history as a mode of critique. And what Kames wanted his history to do mainly was to bring into relief what he regarded as the unnaturalness of feudalism, and the consequent need to rid Scottish law of feudal corruptions.
As Rahmatian notes, Kames combines an interest in the history of property with the belief that property rights are not — or rather, are not all — conventional. Property relations — or rather, some property relations — are natural. One way of putting this is to say, as Rahmatian does, that ‘for Kames property exists in the state of nature’ (251). We now tend to associate this kind of claim with Locke, and the first thing I’d like Rahmatian to say more about is how he thinks Kames and Locke should be compared and contrasted on this issue. Rahmatian concludes his discussion of this issue by saying that ‘for the purpose of doctrinal law Kames is clearly a representative of classical legal opinion and regards first occupancy as the foundation for property entitlement’ (253). In light of what Rahmatian says, rightly I think, about the connectedness of Kames’s legal and philosophical ideas, this is disconcerting. One question I have, then, concerns why there this is discrepancy here, in the case of the origins of property rights, between Kames’s philosophical and legal opinions.
I myself wonder if in fact there really is much similarity between Kames and Locke on property in a state of nature. Nothing in the chapter on property in HLT, Kames’s most detailed natural history of property, sounds very Lockean. Kames says there that industry depends on appropriation (p. 89, 3rd edn) — not the other way around. There is emphasis on the precariousness of property in the first stages of society, because it is grounded in mere possession to begin with. Indeed, HLT helps us understand the rather mysterious talk in Essays on the Principles of Morality and Natural Religion [EPMNR] about a ‘sense of property’. As I read Kames, this isn’t some special extra sense, comparable to Hutcheson’s moral sense, or sense of beauty — rather, it is simply what we might call attachment to property, a particular affection for what is mine. If that’s right, then something has to be mine, through occupation or some other form of possession, before there can be such a thing as a sense of it as my property. What does Rahmatian think about this? If I am right about this, then the ‘sense of property’ cannot be Kames’s answer to Hume and others, including Hobbes, who assert the conventionality of all property relations. Rather, Kames has to be understood as simply reasserting the traditional view of the rights of occupancy as natural rights.
But why, according to Kames, should we believe that the rights of occupancy are natural rights? What does he have to say in answer to Hobbes, and, more pressingly perhaps, in answer to Hume? What is it about possession, and, as Rahmatian points out, and also about prescription, that gives Kames confidence that both are in essence natural rights? The Lockean answer to this question proceeds from a bundle of assumptions, many unstated, about the duties human beings have to themselves and others as a result of their prior duties to God their creator. That’s not the answer that Kames gives. Instead, he simply appeals to a moral sense that tells us that some things are just right and others just wrong, a moral sense that justifies itself solely by appeal to considerations of general providence and of the greater good of humankind as a whole. I think I detect in Rahmatian’s book an understandable frustration with Kames on this score. But, we should remember, Kames is not so naive that he thinks that a properly functioning moral sense is all we need for legal criticism. What is wrong with feudalism, for example, is not straightforwardly reducible to the fact that it offends the moral sense. Which is another way of saying that for Kames positive law and morality are — now, by the middle of the 18th century, where we are far from the state of nature — quite different things. The irreducibility of law to morality is one reason why K thinks that law has to be understood historically, that is, in terms of how it can be supposed to have developed, or deviated, from originary natural principles.
One way, then, in which Kames describes what was wrong with feudalism is to draw attention to the ‘violence’, which is to say the unnaturalness, and hence illegitimacy, of its beginnings. As Rahmatian says, K ‘intended … to undermine the argument for the feudal system by questioning its origins’ (202). It was, as Rahmatian puts it, ‘a system imposed by violence’ (261). ‘It was brought into England by a Conqueror’, K himself says — or at least, and here Kames betrays the scruples of a Whig, by ‘one who treated his new subjects as a conquered people’. It was a system suited to a post-conquest situation, where a new government had to be imposed on a defeated and still recalcitrant people. Two questions arise for me here, which I’d be interested in Rahmatian’s answers to. First, doesn’t natural law itself recognise rights deriving from conquest? What role, exactly, does the fact that feudalism was imposed by violence play in Kames’s critique? And secondly, how does, or how might, Kames explain the fact that feudalism remained in place in England, and in Scotland, for so long? Rahmatian quotes Kames, in the Essays on British Antiquities, calling feudal law ‘an institution adapted intirely to war, admirably contrived to that end’, but, one feels, that cannot be all there is to the explanatory story. There must, surely, have been some sense in which feudalism went with, rather than against, the grain of human nature. Here, it seems to me, the limits of Kamesian conjectural history become obvious — that is, the limits of any kind of history that purports to be able to distinguish between the natural and the unnatural. For it just does not seem plausible to portray as ‘unnatural’ a period that lasted as long as did the feudal period. Kames dwells on the ways in which it was ‘repugnant to natural principles’, especially the natural principles of ‘independency and property’ (quoted 262). But, again, how then did it function for centuries as a reasonably effective system of government and law? The answer to that question would also have to be given, presumably, in terms of principles of human nature, and then one is faced with a further question, about how to distinguish, as it were, natural principles of human nature from unnatural ones.
That further question is, of course, one that many eighteenth-century philosophers were not afraid to engage with. The kind of moral philosophy that most influenced Kames — the moral philosophy of Francis Hutcheson, and Joseph Butler — rests, precisely, on a confidence about the possibility of differentiating between natural and unnatural appetites and passions and principles of action, and between natural and unnatural relations between them. And it was precisely that confidence that Hume, and possibly Smith, and possibly Millar, could not share. Hume, certainly, saw it as resting on a teleological, and essentially religious, conception of human nature that, so he believed, had no basis in experience. That conception of human nature needed to be replaced by a properly ‘experimental’, or scientific, conception. History, in turn, needed to be refashioned in light of this new conception of human nature, and could no longer proceed in terms of easy confidence about what is and is not ‘natural’ in the development of societies and their institutions. My final question for Rahmatian is about how Kames is to be placed in the larger scheme of the Scottish Enlightenment considered as a whole. Rahmatian tends to lump together Kames with Hume, Smith and Millar as if they were all engaged in essentially the same kind of historico-philosophical project. All four presented historical accounts ‘not primarily to provide a chronicle’, Rahmatian says, ‘but to construct an argument in favour of certain Enlightenment ideas’ (203). That is of course true. It also seems true to me that, as Rahmatian insists, there is too much confidence among Smith scholars that Kames must have got his fundamental historical ideas, about the stages of societal development for example, from someone else. Smith scholars, like Hume scholars, have a tendency to underestimate other, less well known, figures of the Scottish Enlightenment. There is good reason to think of Kames as having developed his historical vision independently of both Hume and Smith. Rahmatian claims that ‘In fact, Kames was probably the originator of [the] Scottish version of a stadial theory or periodisation of a progress of society’ (144). However, even if true, this does not entail that other Scots shared Kames’s sense of what could be done with that theory. It seems to me that Kames’s belief in the possibility of distinguishing between the natural and the unnatural in human nature, and human history, sharply separates him from Hume, Smith, and Millar. Their historical vision, albeit expressed like Kames’s in conjectural, stadial terms, gives a central place to contingency and unintended consequences. It is not obvious whether the right thing to say is that in their histories, either everything is natural, or that in their histories, nothing is natural. The crucial point is that within those histories, Kames’s kind of distinction between the natural and the unnatural does no work. I say this not to belittle Kames’s achievement, but rather to bring out what is distinctive of his intellectual project.
The crucial thing here, it seems to me, is the enormous importance for Kames of the legibility of the ways of providence in both the principles of human nature and the dynamics of human history. Where Rahmatian writes about Kames and religion, it is usually to draw attention to the various ways in which K was heterodox, even ‘heretic’ (135), in his religious beliefs. And it’s certainly the case that, measured by the standards of Calvinist orthodoxy, Kames was nearly as unacceptable as his friend Hume, which was why both were subject to harassment by the ‘popular’ wing of the Church of Scotland in the mid 1750s. Rahmatian goes so far as to say that Kames goes so far as to say, or at least imply, that ‘religion is not revealed, but made’ (140). I have to say that I think that this is to go too far. Kames disliked religious enthusiasm as much as any man of the Enlightenment did. Unlike many men of the Enlightenment, he had no confidence in the idea of a religion of reason. He shared at least some of Hume’s scepticism about a rational basis for natural religion. He proposed an alternative basis, in the form of the senses themselves. ‘We need but open our eyes’, K says in EPMNR, ‘to receive impressions of [God] almost from every thing we perceive’ (EPMNR 207). This was indeed an unusual basis for religious belief, but the belief itself was, it seems to me, perfectly in keeping with the providentialism that suffuses mainstream Scottish Enlightenment thought from Hutcheson to Reid. This providentialism is more prominent in EPMNR and the Sketches on the History of Man than in, say, HLT, but it surely informs K’s writings on law, and, I think, helps us understand K’s confidence that he knows the difference between natural and unnatural phases of legal history. When Smith calls the development of commerce prior to the development of agriculture ‘unnatural’ and ‘retrograde’, he means merely that it cannot be explained using the resources of standard political economy. There is no implication that it is, in the language of Kames’s assessment of feudalism, repugnant to the principles of human nature. Still less is there any implication that it is morally wrong. If I have one major reservation about Rahmatian’s book, it is that he neglects the significance of this difference between the historical writings of Smith on the one hand, and Kames on the other. But I don’t want to end on a negative, critical note. This is a fine book that will be central to discussion of Kames for years to come.
Dr Rahmatian’s Response:
It is not clear why there is necessarily a discrepancy between philosophy and law for the explanation of the origin of property and its justification: it is a false dichotomy to say that Locke’s labour theory must be philosophical, while the theory of first occupancy must be legal/juristic. The justification of the acquisition of property (or why property rights arise) is usually a philosophical argument, while the actual mechanics of legally recognised property acquisition is perceived as a legal question. But, strictly speaking, the legal rules about accession could be considered as a legal implementation of Locke’s labour theory, and the assumption of first occupancy in relation to land is typically a (philosophical) fiction. In the context of colonialism the justification of first occupancy can be a quite controversial philosophical point, as we know from Kant and from Kames himself. So the question of disconnectedness between Kames’s philosophical and legal ideas about the origin of property rights does not arise. The difference between Locke and Kames lies in the fact that Kames shares with Locke the principal idea of property being natural and in the state of nature, not conventional, and he hints somewhat at Locke’s labour theory language which was generally widespread at the time. But then he departs from Locke radically in that he postulates an innate psychological/anthropological sense of property which has no corresponding concept in Locke. Kames’s answer to Hume and others who see property as a conventional right is his general critique of Hume’s conception of justice as a result of utility, because for Kames justice is the principal foundation for property.
The question whether natural law recognises rights deriving from conquest does not really arise in an analysis of Kames’s polemic against feudalism. Kames’s agenda is clear: since especially the entail, and feudalism generally that is also tainted with the impression of medieval backwardness and arbitrariness of absolute rulers, prevent the free transfer of land, and therefore hinder the necessary and desirable development towards commerce and a modern early capitalist economy, history is one medium that is used to discredit feudalism argumentatively. Feudalism is ‘unnatural a constitution’, and that, according to Kames, can be demonstrated by the fact that it was violence, war and conquest which introduced feudalism, not reason. Feudalism stands against everyone’s innate moral sense and is therefore something unnatural. This history is not only conjectural, but is – as historiography often is – used to support a political point. That leads to Dr Harris’s second question: the determination as to whether a historical phenomenon or institution is ‘natural’ or not is an ultimately arbitrary interpretation or postulation, and not the result of an ‘empirically’ ascertained historical development. It cannot be different, because the existence and meaning of the moral sense, and its relationship to (perhaps undesired) historical phenomena like feudalism is in the eyes of the inventor of that moral sense who may think – or pretend – that he is merely the beholder.
Kames was certainly a principal figure in the historico-philosophical project of constructing an argument in favour of Enlightenment ideas, together with Hume, Smith and Millar in particular. I said in my introductory chapter, ‘after this detailed study of Kames I would not even be able to say what the mainstream thinking of the Scottish Enlightenment on many subjects actually was … For me the voices of Kames, Reid, Smith, Hume, Hutcheson … are distinct and individualistic.’ But it is also true that it was often not possible in a book focused on Kames only to give much, or any, space to the distinct voices of the others, for example to Smith’s concept and vision of history in relation (or in opposition) to Kames’s. What may help in an argumentation for a distinction between Smith’s and Kames’s approach may be that Smith was more guarded and more sophisticated, while Kames was more direct and blunt, and his views, even if inconsistent, are easier to ascertain. It would require an interesting and quite substantial separate study to determine the differences between Kames’s and Smith’s ideas of (conjectural) historiography, particularly if one considers that Smith presents himself in his works much less often specifically as a (legal) historian than Kames. Furthermore, a detailed analysis of concepts and terminology of the different authors would be inevitable. When we talk about the ‘natural’ and ‘unnatural’ in the historical development of philosophical and legal concepts, then a passage from Hume’s Treatise of Human Nature could serve as a reminder of the difficulties ahead of such an analytical study: ‘To avoid giving offence, I must here observe, that when I deny justice to be a natural virtue, I make use of the word, natural, only as oppos’d to artificial. In another sense of the word; as no principle of the human mind is more natural than a sense of virtue; so no virtue is more natural than justice. … Tho’ the rules of justice be artificial, they are not arbitrary. Nor is the expression improper to call them Laws of Nature; if by natural we understand what is common to any species …’
 Rahmatian, Lord Kames (2015), pp. 18-19.
 Hume, Treatise of Human Nature, book III, part II, sect. 1 (1960), p. 484.