Abstract
Scotland experienced no pronounced national development in law before the late seventeenth century. This is true of law both as a science — as an attempt to reduce the rules of law to their underlying principles — and as practice in the Scottish courts and counsel-chambers. Descriptive accounts there had been, and more or less systematic arrangements of prevailing rules of statutory and common law, with occasional attention to their historical origins. And of course there were records both of statutory enactments and of decisions of the high courts in particular “causes.” There were also lawyers’ handbooks called “practicks.” But there was little further systematization and even less attention paid to juridical theory.
No science affords more opportunity for exercising the reasoning faculty than that of law; and yet in no other science is authority so prevalent. (Elucidations)
No sort of study contributes more to the knowledge of law than that which traces it through the different periods and changes. (Historical Law Tracts)
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.
References
Sir James Dalrymple, 1st Viscount of Stair, The Institutions of the Law of Scotland, etc. (Edinburgh, 1681).
Sir George Mackenzie, The Institutions of the Law of Scotland (Edinburgh, 1684).
For the findings of modern scholarship on the development of Scots law in the late seventeenth and the eighteenth centuries, particularly in its “institutional” approach, including an increasing recognition of Kames’s role therein, see particularly the following: Stair Society Publications, vol. I: A Survey of the Sources and Literature of Scots Law (Edinburgh, 1936), and Vol. XX, An Introduction to Scottish Legal History (1958). Thomas B. Smith, Scotland: The Development of its Laws (London, 1962), being Part II of The British Commonwealth: The Development of its Laws. See especially the historical introduction, pp. 62–71 and 116–136. Thomas B. Smith, Studies Critical and Comparative (Edinburgh, 1962), especially chs. 2, 3 and 4. Peter Stein, “Legal Theory in Eighteenth-Century Scotland,” Juridical Review (1957), pp. 1–20. See also his “The Influence of Roman Law on the Law of Scotland,” Ibid. (1963), pp. 205–245; and Ibid. (1963), pp. 9ff. Lord Cooper, The Scottish Legal Tradition (Saltire Pamphlets, No. 7; Edinburgh, 1949).Arch. H. Campbell, The Structure of Stair’s Institutions (Glasgow Univ. Publications, XCVIII; Glasgow, 1954). See also Juridical Review, vols. VIII, pp. 217–241; IX, pp. 361ff.; XVIII, pp. 267–277; and XXIII, pp. 180–193. Also, Ian S. Ross, “Scots Law and Scots Criticism,” previously cited, pp. 614–623; and a study of Kames’s Historical Law Tracts by the same author in Texas Studies in Literature and Language, Vol. VIII No. 4 (Winter 1967), pp. 499–518.
Kames, Elucidations,pp. vii-x; cf. also p. 117.
See supra p. 196. n. 3., and in particular the discussions by T. B. Smith and Peter Stein there cited.
Elucidations, p. viii.
HLT, p. xii.
Gilbert Stuart, a younger contemporary, well observes on this matter, “The institution of feudal law requires that the same customs and pursuits should constantly prevail. They were suited to times which were simple and warlike, but could not exist under the influence of commerce and refinement. The restless genius of man courts new scenes of action and amusement… New passions and propensities were to exhibit society under a new aspect. That system which had governed so long was to be assailed on every side. And its extensiveness, its nice dependencies and connections, its regularity itself, which seemed to give the promise of lasting duration, were to be fatal to it. ” (Observations Concerning the Public Law and Constitutional History of Scotland, Edinburgh, 1779, pp. 92f.) selves be supplemented by, or give way to, rules of equity administered either in separate courts of equity or chancery, or as a special function of regular courts of law. Equity needs also, like strict law, to be reduced to general principles, in order to avoid arbitrariness in application. We cannot, of course, in a brief chapter, elaborate in any detail, or discuss critically the implications of Kames’s philosophy of law as thus briefly summarized. Our purpose here is merely to expand slightly the meaning and implication of these propositions, documented so far as feasible from his own writings, and in a few cases from his opinions from the bench. In a few concluding paragraphs we shall attempt to show how Kames’s position relates to the Scottish thinking of his time on matters of law, generally, and what was the impact of his thinking on his contemporaries and, so far as is traceable, on later jurisconsults.
See Blackstone, Commentaries, Introduction, Sec. II, opening paragraph.
HLT, Tract 1, opening paragraph.
Equity, vol. I, pp. 43f.
Tytler, I, 217f.; also p. 157.
Equity, vol. II, pp. 84f.
HLT, p. 49n.; also Equity, Book I, pt. I, Ch. III.
Br. Antiq., p. 217.
Equity, vol. I, p. 24.
See especially HLT, Tract III and passim, and Essays on Several Subjects of Law (Edinburgh, 1732), essay on “Prescription,” and Elucidations, Art. XXXIII.
Essays etc., pp. 100ff., and HLTp. 80f.; also Sketches, I, 117 (116–126).
Elucidations, p. 233.
Essays etc., pp. 100ff., Equity, vol. I, pp. 50ff. and Elucidations, pp. 233f.
See Von Ihring, Der Zweck im Recht.
See especially Sketches, IV, 334ff., 344f. and 348f. “ Elucidations, pp. 333f.
In his Dictionary of Decisions, one of his earlier treatises, Kames stresses the need for classifying the rules of law and systematizing them on a rational basis. “What are our law-books,” he asks in the Preface to his Elucidations,“but a mass of naked propositions drawn chiefly from the decisions of our supreme courts, rarely connected either with premises or consequences?” In the Preface to his Historical Law Tracts he insists that “law becomes then only a rational science when it is traced historically.” And in his Principles of Equity he insists that a rule of law can serve the cause of justice only when proper account is taken of all the circumstances surrounding an individual case. In all of his law studies, it is clear that, in spite of his retention of some of the tenets of the natural law philosophy, his approach is primarily empirical, inductive and historical.24
At this point we suggest that the reader turn to the selections from the prefaces to Kames’s law writings presented infra, App. II. They throw much light on this subject. See also the two articles by Ian S. Ross cited supra p. 196, n. 3.
Elucidations, p. x.
The Statute Law of Scotland: Abbridged, with Historical Notes (Edinburgh, 1757), Historical Note XVIII.
Sketches, IV, 19f.; see also Elements, pp. 468f.
Elucidations, p. 145.
Essays etc., pp. 100–164. 3° Ibid., Essay I.
Ibid., p. L 1. These, then, are the leading ideas in Kames’s general view of jurisprudence, and these a few leads, at least, as to the impact of these ideas upon his contemporaries and upon those who came after him. From this his thinking upon problems of law, his chosen profession, we turn now to his thinking on quite another subject, but one that was no less near to his heart for his indulging it only in his leisure hours.
Elucidations, p. xiii.
Dictionary of Decisions (Edinburgh, 1741), p. ii.
Remarkable Decisions: 1730–1752 (Edinburgh, 1766), Preface, opening paragraph.
Dictionary of Decisions, p. i. The following quotation, also from the Preface to the Dictionary of Decisions (p. iii), is particularly pertinent to Kames’s conception of the dynamics of the development of law as a science:
Sketches, I, 315, 341; II, 246, 303, 263f.; III, 43f.; and Elucidations, pp. xif.
See also infra, pp. 292f. 37 Br. Antiq., p. 154. se HLT, p. 323.
Dictionary of Decisions, p. iii; and Select Decisions, p. iii. 40 HLT pp. 366 and 295.
We use the term “institutional” here in its sociological meaning, not in the juridical meaning of following the lines of Justinian’s Institutes, though Karnes was also in this latter sense an “institutional” lawyer. Kames does attempt some broad historical generalizations, such as, for example, that with increasing contracts and the increasing complexity of social relationships, the machinery of justice becomes also increasingly differentiated. Or again, that with these advances, law as a science becomes more involved, though in some respects an increase in understanding also leads to an increasing simplicity in the law — and Kames is concerned with the dynamics of law as a science in relation to social change, as well as with the dynamics of the law itself in relation to such change. And, finally, he also sees law and religion as tending to move forward together. There remains for brief discussion Kames’s thought on the subject of equity, the last proposition we treat of in our summary of his philosophy of law. “Equity, in the proper sense, comprehends,” according to Kames, “every matter of law that by the common law is left without a remedy.” “To supply defects in the common law is undoubtedly the province of the sovereign court, and is one of its most valuable prerogatives.”
Equity, I, pp. 1ff.; also pp. 41ff.
Ibid., I, p. 1 also p. 96. It should be noted that while Kames speaks here of “courts of equity,” and while in England such courts, usually called courts of chancery, were separate from courts of law, in Scotland problems of equity were always dealt with in the regular high courts of law, never in separate courts.
Equity, I p. 8.
James Reddie, Inquiries in the Science of Law (London, 1847), pp. 49f. See also, Lehmann, John Millar pp. 42, 110 and 151.
Smellie, op. cit., pp. 128f.
See supra, p. 196, n. 3.
See supra, p. 127 and pp. 73f., and Lehmann, op. cit., p. 28.
Letter to Karnes, Oct. 17, 1754, S.R.O., GD 24/1/557.
Four letters in files of S.R.O., GD 24/1/553.
John Adams, Works (Cambridge, Mass., 1962), Vol. II, pp. 146ff., under dates Jan. 24, 1765 and Feb. 21, 1765.
Ibid., Vol. III, pp. 445–464; also, vol. II, pp. 146–148.
Preserved in John Adams Collection in Boston Public Library.
Thomas Jefferson, Papers, ed. F. Donovan (New York, 1963), pp. 209–211, 214 and 217.
Jefferson, Commonplace Book, ed. G. Chinard (Baltimore, 1926), pp. 95–135.
John Dalrymple, An Essay towards a General History of Feudal Property in Great Britain (London, 1757).
Copy in Jefferson Collection, U.S. Library of Congress.
See supra, p. 75.
James Wilson, Works,J. de W. Andrews, ed. (Chicago, 1896), vol. I, pp. 38–40.
Ibid., vol. II, pp. 133–135.
Author information
Authors and Affiliations
Rights and permissions
Copyright information
© 1971 Springer Science+Business Media Dordrecht
About this chapter
Cite this chapter
Lehmann, W.C. (1971). Kames’s Philosophy of Law; or, His General View of Jurisprudence. In: Henry Home, Lord Kames and the Scottish Enlightenment. International Archives of the History of Ideas / Archives Internationales D’Histoire des Idées, vol 41. Springer, Dordrecht. https://doi.org/10.1007/978-94-017-1765-6_13
Download citation
DOI: https://doi.org/10.1007/978-94-017-1765-6_13
Publisher Name: Springer, Dordrecht
Print ISBN: 978-90-481-8314-2
Online ISBN: 978-94-017-1765-6
eBook Packages: Springer Book Archive