Abstract
During the century since Smith’s Lectures on Jurisprudence first became available only one of Smith’s commentators has given any consideration whatsoever to his views on criminal law, and that was a scant ten pages devoted mainly to Smith’s ‘theory of punishment.1 By relying primarily upon Smith’s strategic and programmatic remarks, Haakonssen understandably concluded that Smith supported basically a retributive approach to criminal law.2
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Preview
Unable to display preview. Download preview PDF.
Notes
Knud Haakonssen, The Science of a Legislator: The Natural Jurisprudence of David Hume and Adam Smith. Cambridge: Cambridge University Press, 1981. Pp. 114–123.
Ibid. p. 116.
John Rae, Life of Adam Smith. New York: Kelley, 1965. P. 434.
The ‘General Introduction’ to WN affords a short and accurate overview of Smith’s philosophy. For a more detailed treatment of his moral theory, see: T. D. Campbell, Adam Smith’s Science of Morals. London: Allen and Unwin, 1971 and my The Social Philosophy of Adam Smith. The Hague: Nijhoff, 1973.
‘When an inhumane murderer is brought to the scaffold, though we have some compassion for his misery, we can have no sort of fellow-feeling with his resentment…. The natural tendency of their just indignation against so vile a criminal is indeed the most fatal and ruinous to him. But it is impossible that we should be displeased with the tendency of a sentiment, which, when we bring the case home to ourselves, we feel that we cannot avoid adopting.’ (TMS II.i.3.3
See: Smith’s discussion of the crimes of wrongful imprisonment (LJ(A) ii. 128-9) and perjury (LJ(A) ii.160-1).
‘Nature, antecedent to all reflection upon the utility of punishment, has in this manner stamped upon the human heart, in the strongest and most indelible characters, an immediate and instinctive approbation of the sacred and necessary law of retaliation.’ (TMS n.i.2.5
Here, as most places, Smith showed no sign of accepting the possibility of real diversity in our moral sentiments. He did not consider responding to questioning of our own sentiments by inquiring into the grounds such challenges, but instead sought only to defend against them. Haakonssen caught this sense quite nicely when he mused: ‘Why is it that on such occasions we do not rely on our real reason? It is simply because the fact that people can put forward such criticism shows that the natural value-community between them and us has broken down: they have lost their sense of propriety, as we see it.’ (p. 88) On one occasion, when discussing utility as a ground for political obedience, Smith did seem to concede the need to recognize diversity of opinion. ‘It is the sense of public utility, rather than private, which influences men to obedience. It may sometimes be for my interest to dissobey, and to wish government overturned. But I am sensible that other men are of a different opinion from me and would not assist me in the enterprize. I therefore submit to it’s decision for the good of the whole.’ (LJ(B) 14)
This is not quite the same as the distinction between efficient and final cause sponsored by Campbell. (T. D. Campbell, ‘Adam Smith and the Economic Analysis of Law,’ in Philosophers of the Scottish Enlightenment, V. Hope (ed.), Edinburgh University Press, 1984, p. 150) The two prongs mentioned here rely on the distinction between explanatory mechanisms and justifying standards. The factual prong bears upon identifying the mechanism(s) that best account for the occurrence of a particular phenomenon. The normative prong bears upon the standard(s) by which we approve retaining or rejecting existing phenomenon.
Smith echoed this same view with respect to smuggling generally. (WN V.ii.k.64
Raphael and Macfie concluded their discussion of the sentinel case with the following observation. ‘The fact is that Smith found himself in a cleft stick on this issue and had not thought out his position consistently.’ (TMS Appendix II at p. 394) I have argued that this dilemma affects Smith views on criminal law generally and that he did in fact seize one horn, although not openly.
Haakonssen concludes from this that Smith was working within the natural law tradition, (pp. 147-9) Of course, if subscribing to what is today called ‘foundationalism’ is all it takes to be a natural law theorist, this interpretation is true but trivial. On that usage it would be difficult to identify any but a very small handful of philosophers from Plato through Nietzsche who were not working within the natural law tradition.
His practice in this respect has occasioned some confusion. As his sources, though exceptionally complete for his day, were sketchy in many important details, Smith not infrequently exercised the option of speculating about details that were, it seemed to him, missing. This style has prompted apologies from sympathetic commentators from Dugald Stewart to Campbell and Skinner. Stewart calls that style ‘theoretical or conjectural history’ because it insinuated speculation in the accounts where “direct evidence” is wanting. “…[W]hen we cannot trace the process by which an event has been produced, it is often ofimportance to be able to show how it may have been produced by natural causes.’ (Account of the Life and Writings of Adam Smith, LL.D. II.46-48) In their ‘General Introduction’ to WN Campbell and Skinner distinguish between Smith the ‘orthodox historian’ who chronicles events taking care to avoid ‘distortion of historical evidence’ and Smith the ‘philosophical historian’ of whom Stewart spoke. (WN vol. I, pp. 50-60) I don’t share the view that there is a distinction to be made here. Serious, orthodox historians are not clairvoyant as regards ‘direct evidence.’ They must speculate and seek out vindication just as ‘philosophical historians’ do. Worries about distorting the facts of history are premised upon the incredible conviction that there is independent access to that supposed realm of facts. In my view there is nothing about Smith’s approach to history writing that requires an apology.
‘Civil government, so far as it is instituted for the security of property, is in reality instituted for the defence of the rich against the poor, or of those who have some property against those who have none at all.’ (WN V.i.b.12
‘The acquisition of valuable and extensive property, therefore, necessarily requires the establishment of civil government.’ (WN V.i.b.2
The laws of justice are addressed to securing citizens from injury from one another. Those of police are concerned with public health, safety and the cheapness of commodities. The laws of revenue which relate to the means of providing revenues for the government. Those of arms bear upon defense of the nation against foreign invasion. The Laws of Nations comprehend issues of war and peace as well as the rights of ambassadors and aliens. (LJ(B) 6) The only parts of the project that Smith ever completed to his own satisfaction were those relating to police, revenue and arms. These he presented in the form of WN. (TMS Advert. 2
Haakonssen supported this conclusion at pp. 120-22.
In the cases of the other crimes against movable property, robbery and piracy, death is also regarded as an appropriate punishment. ‘Though theft does not excite our resentment to any great pitch, yet robbery, which forcibly takes our goods from us, will step us our resentment very much.’ (LJ(A) ii. 155) This seems an odd assertion for two reasons. First, robbery was distinguished from theft by the presence of force. Evidently robbery excites greater resentment because it is seen as a form of battery as well as theft. But battery is not a capital crime. Indeed, Smith approved a relatively small penalty for battery, viz., a fine and imprisonment. (LJ(B) 191) Second, he also approved death for piracy, also a crime that forcibly deprives people of their property. But death was approved there for both of two reasons: ‘not only from the resentment which all robberies excite in us but also from the great opportunities there are of committing it and the great loss which may be sustained by it ….’ (LJ(A) ii.156)
‘In generall the best means of bringing about this desirable end is the rigorous, severe, and exemplary execution of laws properly formd for the prevention of crimes and establishing the peace of the state.’ (LJ(A) vi.2)
In combination with education, this is also the key to a more peaceful world. ‘But nothing seems more likely to establish this equality of force [between nations] than that mutual communication of knowledge and of all sorts of improvements which an extensive commerce from all countries to all countries naturally, or rather necessarily, carries along with it.’ WN IV.vii.c80)
Author information
Authors and Affiliations
Editor information
Editors and Affiliations
Rights and permissions
Copyright information
© 1994 Springer Science+Business Media Dordrecht
About this chapter
Cite this chapter
Lindgren, J.R. (1994). Adam Smith’s Treatment of Criminal Law. In: Malloy, R.P., Evensky, J. (eds) Adam Smith and the Philosophy of Law and Economics. Law and Philosophy Library, vol 20. Springer, Dordrecht. https://doi.org/10.1007/978-94-011-0748-8_4
Download citation
DOI: https://doi.org/10.1007/978-94-011-0748-8_4
Publisher Name: Springer, Dordrecht
Print ISBN: 978-0-7923-3425-5
Online ISBN: 978-94-011-0748-8
eBook Packages: Springer Book Archive