Translators of the Louisiana Code (Digest of Orleans) of 1808

In very recent years there has been a renewed interest in the legal history of Louisiana in the Territorial Period and the early years of statehood. There has been a complete rethinking of the sources of the first Louisiana Civil Code, the Digest of the Civil Laws of the Territory of Orleans, with renewed reflection on some related documents, such as the de la Vergne volume, and other source material.

One important product of this developing research is the new book by Professor Vernon Palmer of the Tulane Law School, The Lost Translators of 1808 and the Birth of Civil Law in Louisiana, published by the University of Georgia Press in its Southern Legal History Series, ISBN 9780820358338.

There is not the scope here for a full review of this important and enlightening work. Professor Palmer explores the lives of the translators, which illuminates much of the tensions and culture of the early territorial period, before reflecting on their work in a fascinating account of what they did.

All interested in translation, codification, and early Louisiana should read this handsomely produced monograph.

New Book: Oxford Handbook of Roman Law and Society

The Oxford Handbook of Roman Law and Society, edited by Paul J. du Plessis, Clifford Ando, and Kaius Tuori, surveys the landscape of contemporary research and charts principal directions of future inquiry. More than a history of doctrine or an account of jurisprudence, the Handbook brings to bear upon Roman legal study the full range of intellectual resources of contemporary legal history, from comparison to popular constitutionalism, from international private law to law and society, thereby setting itself apart from other volumes as a unique contribution to scholarship on its subject.

The Handbook brings the study of Roman law into closer alignment and dialogue with historical, sociological, and anthropological research into law in other periods. It will therefore be of value not only to ancient historians and legal historians already focused on the ancient world, but to historians of all periods interested in law and its complex and multifaceted relationship to society.


The table of contents is available here.

A launch symposium will be held on 6 December 2016 at Queen Mary School of Law. Find out more here.

Cicero’s Law: Rethinking the Roman Law of the Late Republic


A fundamental re-assessment of Cicero’s place in Roman law
Ed. Paul J. du Plessis
Edinburgh University Press

This volume brings together an international team of scholars to debate Cicero’s role in the narrative of Roman law in the late Republic – a role that has been minimised or overlooked in previous scholarship. This reflects current research that opens a larger and more complex debate about the nature of law and of the legal profession in the last century of the Roman Republic.


Benedikt Forschner • Catherine Steel • Christine Lehne-Gstreinthaler • Jan Willem Tellegen • Jennifer Hilder • Jill Harries • Matthijs Wibier • Michael C. Alexander • Olga Tellegen-Couperus • Philip Thomas • Saskia T. Roselaar • Yasmina Benferhat


1. Introduction, Paul J. du Plessis
Part 1. On Law
2. A Barzunesque view of Cicero: from giant to dwarf and back, Philip Thomas
3. Reading a dead man’s mind: Hellenistic philosophy, rhetoric, and Roman law, Olga Tellegen-Couperus and Jan Willem Tellegen
4. Law’s nature: philosophy as a legal argument in Cicero’s writings, Benedikt Forschner
Part 2. On Lawyers
5. Cicero and the small world of Roman jurists, Yasmina Benferhat
6. “Jurists in the shadows”: the everyday business of the jurists of Cicero’s time, Christine Lehne-Gstreinthaler
7. Cicero’s reception in the juristic tradition of the early Empire, Matthijs Wibier
8. Servius, Cicero and the res publica of Justinian, Jill Harries
Part 3. On Legal Practice
9. Cicero and the Italians: expansion of Empire, creation of law, Saskia T. Roselaar
10. Jurors, jurists and advocates: law in the Rhetorica ad Herennium and De Inventione, Jennifer Hilder
11. Multiple charges, unitary punishment, and rhetorical strategy in the quaestiones of the late Roman Republic, Michael C. Alexander
12. Early-career prosecutors: forensic activity and senatorial careers in the late Republic, Catherine Steel
Postscript, Paul J. du Plessis

Available from Edinburgh University Press

  • Hardback: 9781474408820
  • eBook (PDF): 9781474408837
  • eBook (ePub): 9781474408844

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)[1] or the systematisation of the (five) rules of taxation in the Wealth of Nations.[2]

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.[3] 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,[4] 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.[5] 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.[6]

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:[7]

‘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.’

[1] Rahmatian, Lord Kames (2015), pp. 51-53.

[2] Adam Smith, Wealth of Nations, book V, ii, b (1976), p. 827.

[3] 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.

[4] See Rahmatian, Lord Kames (2015), pp. 196-197, 211.

[5] 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).

[6] Lord Kames (Henry Home), Essays on the Principles of Morality and Natural Religion (2005, Liberty Fund edition, ed. C. Moran), p. 111, note.

[7] 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.’[1] 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 …’[2]

[1] Rahmatian, Lord Kames (2015), pp. 18-19.

[2] Hume, Treatise of Human Nature, book III, part II, sect. 1 (1960), p. 484.

John Finlay on John Finlay, Legal Practice in Eighteenth-Century Scotland

On 23 October, 2015, the Centre for Legal History of the Edinburgh Law School held the first of the book events it was holding this year. Professor John Finlay of Glasgow gave a presentation about his recent book, John Finlay, Legal Practice in Eighteenth-Century Scotland (Leiden: Brill, 2015). Professor Cairns commented before a general discussion. It was a successful and interesting event. Professor Finlay’s account is below.


How do you begin to look at the legal profession Scotland in the eighteenth century? In my case, it was reading as many Session Papers as I could find the time to examine. All of eighteenth-century life is there but, from the perspective of looking specifically at lawyers, this one source is a great way to gain a sense of their everyday language, of the types of legal matters which occupied their attention, and, perhaps most importantly, these papers provide contain within them in a distilled form the legal character of the age. Many other sources were to follow, primarily personal correspondence and corporate records – the papers of legal societies, town councils and, of course, court records. Much of this material was in manuscript and so, of course, patience, and time, were necessary. Simply to examine all the volumes of Edinburgh town council minutes for the eighteenth century, for example, is no small task in itself. It is, though, a very rewarding one for a body that was so engaged in litigation, law reform and in employing lawyers as assessors, agents and clerks.

Early on it became clear that to understand the profession meant looking beyond its most visible, and in many ways, most important practitioners – the members of the Faculty of Advocates and WS Society. Compiling a database of notaries public was a necessary preliminary in mapping the size and hinting at the local prevalence of lawyers: given that over 3000 notaries were admitted in the course of the eighteenth century, this again took time. The Scottish Record Society published the results in 2012 but the core database, alongside databases of advocates, members of the WS Society, the procurators of various courts and members of legal societies, effectively provided a useful and searchable directory of the profession. This is what I wanted to do – to get beyond Edinburgh, and to look at relationships between local lawyers, relationships between local and central lawyers, and, of course, between lawyers and their clients. The general theme of centre and periphery has long been popular with historians, but in terms of the Scottish legal profession it has a particularly important relevance: in terms of Scots law, Edinburgh was definitely the centre, and it drew in large numbers of lawyers, but by no means is it the whole story. The dynamic between local agents and corresponding agents in Edinburgh can be particularly fascinating.

Naturally, my focus on lawyers countrywide meant examining local archives and the archives of the WS Society, the Faculty of Procurators in Glasgow and the minute books of the Society of Advocates in Aberdeen and other, smaller, local societies of lawyers. The private papers of a number of local lawyers, in Inverness, Fife, Stirlingshire, the Borders and other more rural communities, shed considerable light on the range of their activities and the types of services they provided.

It is in such sources that one of the themes of the book, community, came to the fore. Lawyers formed their own communities but, of course, they also engaged with the wider communities of which they formed part. After all, they had to attract clients and to tap into streams of patronage where they could. The profession was extremely competitive and public offices, especially ones that held out the prospect of fees, were much sought after. One of the interesting features of the research was the regularity with which one can encounter failed or financially struggling lawyers. This is as true in local contexts as it undoubtedly was in Edinburgh. Poor business decisions, particularly rash offers to guarantee a loan to a friend or family member, were the ruin of many perfectly competent practitioners. This is why legal societies were geared so strongly towards the support of their own members, and their dependents, who had fallen into distressed financial circumstances. As an extension of this, the voluntary organisation of legal provision for the poor, if imperfect in practice, was a phenomenon that is found in local courts as much as it was in the Court of Session in Edinburgh. The annual nomination of advocates and writers and law agents for the poor was copied, as were so many other aspects of the great Edinburgh legal societies, by groups of provincial practitioners.

In terms of new themes to emerge, the use of lawyers by town councils was something I found particularly interesting. The role of the procurator fiscal, and the identity of those who fulfilled it (by no means all men with legal training) was something that had to be pieced together from a wide range of sources. Away from the session papers, always a rich source of entertainment, the most enjoyable elements of the research undoubtedly came from reading the correspondence of lawyers and clients. These can reveal much information about tactical thinking, consultations with counsel, judicial attitudes and the personalities involved. Letters, alongside receipts and other sources, allow information to be compiled about lawyers’ income and financial relationships.

A final word should be said about the writing and planning of the book. I must thank my publisher for the freedom to be able to publish a book of substantial length without any pressure to make it shorter. In attempting a broad survey, particularly in an area where hitherto there had been, outside of some excellent studies of the Faculty of Advocates, little in the way of detailed research, it is important to attempt to be comprehensive and to contextualise what is found.

There is still much to do in the history of the legal profession in Scotland. My next project, a database of notaries public in the nineteenth century, has already begun. As that century saw in excess of 4000 new notaries, this is also something that will take time but, hopefully, it will form a useful foundation for the next phase of research and will help to improve our understanding of how the profession developed after 1800.

John Finlay, Glasgow

New Roman Law Textbook: Laurent Waelkens, Amne Adverso

Another textbook in English on Roman Law is always to be welcomed. A lively market in them indicates the continuing vitality of the discipline; good textbooks encourage students to learn and also to opt for the subject. It is also good to have diversities of approach. There is, for example, Borkowski’s Roman Law, in a new 5th edition, by this blogger’s colleague Paul du Plessis; our colleague in Glasgow, Ernie Metzger, has provided a new introduction to Barry Nicholas’s Introduction to Roman Law.

Leuven University Press has just published Amne Adverso: Roman Legal Heritage in European Culture by Laurent Waelkens. Your blogger should instantly admit that he has known Professor Waelkens for a good many years. Each textbook has its own unique point. That of Waelkens has a Belgian – even Leuven – focus, and pays a great deal of attention to the later development of Roman law. In this and in other ways it reflects Waelkens’ own scholarship. It has an interesting introduction on the science of Roman law, and a lengthy chapter providing an overview of the external history and sources of Roman law, that also deals with the history to the nineteenth century.

Each era produces different scholarship with a different focus. This book has a focus on human rights. It is a regular theme, after an interesting chapter. It has a good chapter on procedure, before turning to persons, inheritance, property, obligations, and socio-economic law. Thus traditional categories are interestingly mixed with modern.

Readers of this blog should not fear that scholarly rigour and historical understanding have been sacrificed for contemporary obsessions; they have not. And your blogger firmly believes that all true research should be useless! That is, research in historical and scholarly disciplines for some immediate practical purpose is nearly always poor research, motivated by the desire to please policy makers, rather than by the disinterested pursuit of knowledge and interpretation to which all scholarship should aspire; utilitarian research necessarily defeats its utilitarian aims. One does wonder to what extent in the modern world Alexander Fleming might not have been hailed as the discoverer of penicillin, but instead disciplined for having an untidy laboratory. This said, Waelkens’ book has the necessary uselessness to make it truly useful and insightful, and it can be recommended to all.

New Book: Eighteenth-Century Scotland

Roger Emerson, who, in 2013, won the Saltire Society prize for best biography with his work on that great Scotsman, Archibald, 3rd Duke of Argyll, is shortly to publish another work under the same imprint, humming earth. It is entitled: Neglected Scots: Eighteenth-Century Glaswegians and Women. This is a topic that plays to Emerson’s many strengths as a scholar, notably his focus on networks and intellectual and political history.



Magna Carta – Again: Book Offer for readers of this Blog

This Blog has already mentioned more than once the the 800th anniversary of the grant at Runnymede of Magna Carta in 2015. One suspects it will be mentioned again a few times more before the end of the year. The story of how Magna Carta came into being, and has been interpreted since, and its impact on individual rights and constitutional developments has more twists and turns than any work of historical fiction, as the lecture of Sir John Baker recently discussed here would confirm.

Hart Publishing has just published Magna Carta Uncovered by Anthony Arlidge and Igor Judge. These are interesting authors, since Anthony Arlidge has been a Queen’s Counsel for over 30 years and in 1990 he was called upon during a case to argue the meaning of clause 40 of Magna Carta, while Igor Judge was a judge for 25 years and retired as Lord Chief Justice of England and Wales in 2013.

This means the authors bring a different perspective from that of most historians and legal historians as they can draw on wide legal experience and forensic skills to uncover the original meaning of the liberties enshrined in Magna Carta, and to trace their development in later centuries up to the drafting of the Constitution of the United States of America. By providing that the powers of the King were not unlimited, the Charter was groundbreaking, yet it was also a conservative document, following the form of Anglo-Saxon charters and seeking to return government to the ways of the Norman kings.

If readers of this Blog are interested in this book they can get a 20% discount by following the link below.


1. Who Made Magna Carta?
2. William Marshal
3. What Was Magna Carta?
4. Religion
5. Rebellion
6. Freemen
7. Law and Order
8. Trial by Peers – Clauses 39 and 40
9. Taxes
10. The King Under the Law
11. London and Other Cities
12. Commerce
13. Robin Hood and the Royal Forests
14. Wales and Scotland
15. The Charter Restored
16. Towards Democracy
17. Due Process
18. The Charter Survives
19. The Rule of Law
20. ‘Reason of State’
21. Ship Money
22. Independence of the Jury and the Right to Silence
23. Towards an Independent Judiciary
24. The Bill of Rights
25. Rebellion in America

Nov 2014 9781849465564 204pp Hbk RSP: £25 Discount Price: £20

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Glasgow Tercentenary Essays

Late in 1713, the masters of the University or College of Glasgow persuaded Queen Anne to allow the funding out of the Bishop’s Rents, which had come into the hands of the Crown, of a chair in law. Given the source of the money, the Crown was later able to assert patronage over the appointment, although the College was allowed to choose the first professor. The choice lighted on William Forbes, who enjoyed the patronage of the Dalrymple family, who entered into his new office in 1714, whose visage enlivens the cover of Glasgow Tercentenary Essays: 300 Years of the School of Law, edited by R.G. Anderson, James Chalmers, and John MacLeod, just published by Avizandum, Edinburgh, 2014.

William ForbesOld Glasgow Building

There is much here in a miscellaneous collection to interest any lawyer. But some will be of considerable interest to readers of this Blog. The essay by James Chalmers, based on his inaugural lecture, contains interesting historical material, as do those by Gillian Black on Exclusive Privilege and Kenneth Campbell on confidentiality. A directly historical account is found in Olivia Robinson’s discussion of use of the civilian literature, and J. Irvine Smith’s entertaining and passionate account of the famous trial of Captain Green, which some readers of this blog may recall being given as a Stair Society Annual Lecture some years ago. Bill McBryde’s wonderful exploration of Muir v. Glasgow Corporation will remind many of some of the studies of the late great Brian Simpson. It indicates just how much understanding and indeed detailed social history can be gained form such study of an individual case. Maks del Mar also investigates modern intellectual history and draws a moral from it for the future of legal theory.

The other essays are less historically oriented: but all are a worthy tribute to three hundred years of legal study in Glasgow.



Re-Interpreting Blackstone’s Commentaries: A Seminal Text in National and International Contexts. Edited by Wilfrid Prest

Since research for his PhD, this blogger has had a long-term interest in Blackstone. Most readers of the blog will be aware of the wonderful new work on Blackstone being carried out in Adelaide under the leadership of Wilfrid Prest. This has produced a new biography, an edited collection of letters, and two volumes of essays, as well as encouraging all kinds of other work see

This blogger had the privilege of participating in a conference on Blackstone there, where he managed to link his interests in Blackstone, slavery, and Louisiana. The conference proceedings have now been published as a volume, and it is possible for readers of this Blog to get a copy of the volume at a reduced price through the publisher’s website!
Book on white background

Under the title Re-Interpreting Blackstone’s Commentaries, the collection explores the remarkable impact and continuing influence of William Blackstone’s Commentaries on the Laws of England, from the work’s original publication in the 1760s down to the present. Contributions by intellectual and legal historians, together with cultural and literary scholars, trace the manner in which this truly seminal text has established its authority well beyond the author’s native shores or his own limited lifespan. A particular value is the perspective from the humanities generally in the volume. Thus, in the first section, ‘Words and Visions’, Kathryn Temple, Simon Stern, Cristina S Martinez and Michael Meehan discuss the Commentaries’ aesthetic and literary qualities as factors contributing to the work’s unique status in Anglo-American legal culture.

The second group of essays is more traditional in approach, if opening up new research. They trace the nature and dimensions of Blackstone’s impact in various jurisdictions outside England, namely Quebec (Michel Morin), Louisiana and the United States more generally (John W Cairns and Stephen M Sheppard), North Carolina (John V Orth) and Australasia (Wilfrid Prest). Finally Horst Dippel, Paul Halliday and Ruth Paley examine aspects of Blackstone’s influential constitutional and political ideas, while Jessie Allen concludes the volume with a personal account of ‘Reading Blackstone in the Twenty-First Century and the Twenty-First Century through Blackstone’.

This volume is a sequel to the well-received collection Blackstone and his Commentaries: Biography, Law, History (Hart Publishing, 2009).

Table of Contents:

Wilfrid Prest is Professor Emeritus in Law and History at the University of Adelaide.

Aug 2014 260pp Hbk 9781849465380 RSP: £50 / €65

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