The Forgotten Genius of the Scots
Whatever goods or ills have come from the four years of the Trump presidency, we can say this at least: Trumpism helped wake conservatives from their dogmatic slumber.
Conservatives were not always dogmatists. On the contrary, theirs was a creed of pragmatic problem-solvers, a rebuke to idealists and political systematicians of all sorts. However, flush with their victories in the 1980s and disoriented by the fall of Soviet Communism, they sunk into the dogmatic slumber of ideology. While conservatives have always stood for prudent restraint, in both judicial philosophy and in political economy, somewhere along the way restraint hardened into rigidity. In law, conservatives came to assume that if judicial activism was bad, judicial stasis must be good; if judges ought not play the role of moral innovators, then they ought not let morality have anything to do with law, but restrict themselves to expounding its unchanging letter. Conservatives, in short, lost their ability to learn from experience.
Our idiom “waking from dogmatic slumber,” it turns out, comes from a remark by Enlightenment philosopher Immanuel Kant about the Scot David Hume. Although we are now liable to think of Hume as a radical—celebrated chiefly for his attacks on traditional religion—he was known in his own life as a great conservative, and in many ways so was his friend Adam Smith, and the coterie of intellectual collaborators and rivals around them who made up what we now call “the Scottish Enlightenment.” This Enlightenment, unlike its French and German counterparts, was fundamentally a conservative enterprise, because it was fundamentally an empirical enterprise. While Kant concluded, even after “awakened” by Hume, that human reason need consult no higher authority than itself, the Scots humbly dedicated themselves to building up knowledge from long experience and observation. Observation that taught them the sheer variety of human cultures, and the provisionality and modesty of efforts at political reform. This fundamental empiricism used to be central to conservative thought, and it is high time to recover it today.
The heart of this empiricism lay in attention to history, which, wrote Hume in his 1748 Enquiry Concerning Human Understanding, furnishes “us with materials from which we may form our observations and become acquainted with the regular springs of human action and behaviour.” And just because the “springs” of human behavior were “regular” did not mean that human behavior itself was everywhere the same; on the contrary, the long force of habit and custom was more than capable of generating an immense variety of cultures and laws out of the same basic material of human passions and reason. Thus, the basic lesson to be gleaned from history is not arrogance but humility; precisely because history discloses the stubborn realities of human nature. “It condemns in advance any over-optimistic attempts to achieve ideal or drastically rational political change,” writes Lawrence Bongie in a summary of Hume’s method.
Hume himself saw history as an essentially cautionary tale for the political or social reformer, writing in “Of the Protestant Succession” that, “all political questions are infinitely complicated, and… there scarcely ever occurs, in any deliberation, a choice, which is either purely good, or purely ill. Consequences, mixed and varied, may be foreseen to flow from every measure: And many consequences, unforeseen, do always, in fact, result from every one.” Accordingly, he declared elsewhere, “for my part, I shall always be more fond of promoting moderation than zeal.”
Moderation, however, was not at odds with progress and reform; rather, it was precisely the way to achieve durable progress and meaningful reform. This conservative philosophy made itself particularly felt in the Scots’ approach to jurisprudence.
From Ius Commune to Common Law: the Scots’ Conservative Jurisprudence
Hume spoke for many of his age when in his essay, “Of Parties in General,” he singled out good laws as the sine qua non of public happiness: “Of all men, that distinguish themselves by memorable atchievements [sic], the first place of honour seems due to LEGISLATORS and founders of states, who transmit a system of laws and institutions to secure the peace, happiness, and liberty of future generations.” But to many men (and women) of 18th century Europe, the laws and institutions transmitted to them by past generations left much to be desired. As relics of feudalism and clericalism, they were long overdue, many argued, for a thorough overhaul. With natural rights on everyone’s lips, and comprehensive new legal codes replacing traditional customs across Europe under so-called “enlightened despots” like Frederick the Great of Prussia, one might expect the newly enlightened Scots to join the craze for laws and legal institutions that spoke in the pure voice of the law of reason. In fact, they did just the opposite.
Before the Act of Union in 1707, jurisprudence in England and Scotland, despite relatively similar medieval feudal origins, had been developing on very different tracks. Scotland, under the influence of its centuries-long “Auld Alliance” with France, had increasingly gravitated toward the Roman civil law system that had influenced French jurisprudence, especially during the late 16th century movement known as “the Reception,” in which jurists across Europe sought to reform customary law in line with the dictates of the Roman law texts of Justinian. This Roman law was taken to be the most authentic articulation of the God-given natural law, the historical embodiment of universal reason, “the very fountain” of “what is equitable,” according to Scottish jurist Robert Craig. England, on the other hand, had stubbornly resisted the influence of Roman law since the 1200s, developing its own national customary law, known as the “common law,” as a tradition that had no universal aspirations, but claimed to be the historical embodiment of reason in a particular national community. Accordingly, when King James VI and I sought to unite the Scottish and English laws following the union of the two crowns in his person in 1603, he encountered a fierce backlash, particularly from the English common lawyers.
After the failure of his attempt, Scottish law doubled down on its continental bent. Writing roughly a century later, Scottish jurists Francis Grant and George Mackenzie would argue that Scottish law was subject to the authority of the ius commune, the “common law” of Europe, by which they meant the Roman law. Inasmuch as Scotland did have particular laws of its own, they said, these were pre-eminently statute laws, passed by the Scottish Parliament, unlike the mass of custom and judicial precedent that made up the bulk of English common law. Indeed, many hoped to see a codification of Scottish law that would replace its uneven patchwork with a comprehensive body of statutory law modeled on the best Roman principles.
The great jurist James Dalrymple, Viscount Stair, disagreed, preferring customary law, “wrung out from… debates upon particular cases, until it come to the consistence of a fixed and known custom.” This empirical method, he argued, allowed “‘the conveniences and inconveniences thereof through a tract of time’ to be ‘experimentally seen’. Thus, what was ‘found in some cases convenient, if in other cases afterwards… found inconvenient’ would prove ‘abortive in the womb of time’ before achieving ‘the maturity of a law.’” Statute law, on the other hand, required lawmakers to try to foresee all of the consequences of a legal reform in advance. Standing against the prevailing stream, Stair declared that in Scotland, “we are ruled in the first place by our ancient and immemorial customs, which may be called our common law,” using the phrase in its English rather than Roman sense. The stream, however, at last began to run in Stair’s direction after the 1707 Act of Union between England and Scotland.
Unlike earlier union attempts, this momentous marriage of two nations was scrupulous to protect the distinctiveness of the two legal systems. Although the British House of Lords, including its newly-seated Scottish peers, had final appellate jurisdiction over both kingdoms, and the combined British Parliament could pass legislation binding on Scotland, these powers were used conservatively so as not to offend Scottish sensibilities. However, despite—or perhaps because of—this reticence, the English common law began to exert a magnetic pull on Scottish jurisprudence over the century that followed, drawing Scotland in precisely the opposite direction from the rest of eighteenth-century Europe, where comprehensive reforming codes based on Roman law and “the law of reason” were all the rage. With its unparalleled protections of the liberty of the subject, its openness to incremental reform, and its success in presiding over the great explosion of commerce and industry that catapulted Britain to global dominance in this century, the example of the English common law invited imitation, the sincerest form of flattery, from its Scottish cousins to the north.
One of the key figures in this transition was Henry Home, Lord Kames, a distant cousin of David Hume and—although largely forgotten now—one of the central figures of the Scottish Enlightenment. Kames wrote extensively on both the history and theory of jurisprudence, and as a Lord of the Court of Session, the supreme court of Scotland, he had ample opportunity both to put his theories into practice and to refine his theories from experience. Indeed, he argued that this give-and-take of reason and experience was the essence of jurisprudence, which by this means was able to balance the letter of the law, as expounded by past judges, with equity, the sense of moral fairness without which law would come to feel arbitrary and oppressive. In his celebrated Principles of Equity (1760), Kames warned against allowing moral idealism to take over law, arguing that while our native moral sense of benevolence directed us toward duties of mercy and generosity, the task of law was to enforce duties of justice, not duties of charity.
At the same time, Kames was a good enough historian to recognize that this boundary line was a fluid one, and that as civilizations progressed and states succeeded in securely establishing the protections of basic justice, societies came to expect the law to reflect their heightened moral conscience, protecting men from forms of fraud and unfairness that were heretofore technically legal. This delicate process had to be handled gradually and incrementally, Kames argued, and this was the task of the courts: identifying individual cases where the letter of the law clashed with the spirit of the law, judges could establish precedents whereby the law gradually expanded to afford a broader substantive justice.
As Kames saw it, this was the genius of English common law, especially as practiced by the great reform-minded Chief Justice of the King’s Bench from 1754 to 1786, Lord Mansfield. Kames dedicated the Principles of Equity to Mansfield, calling him “a great man of superior genius,” and Mansfield responded by enthusiastically praising the work. Kames was to apply these principles of equity in building upon one of the most important reforming precedents in 18th century English law, Somerset v. Stewart of 1772, in which Mansfield had undermined the legality of negro slavery in England. Inspired by the case, a Scottish slave named Joseph Knight sued for his freedom and was rewarded in 1777 with the Court of Session’s verdict that “The dominion assumed over the negro, under the law of Jamaica, being unjust, could not be supported in this country to any extent.”
By the end of the century, the tide of Scottish jurisprudence had so turned from the rationalist ius commune of the Continent to the empiricist common law of England that the jurist Robert Bell could speak for a new consensus when he praised case law for “that flexibility, which enables it to follow the manners and customs of a nation through all the changes to which they are subject.” Building up precedent by precedent, “Law was thus able to progress naturally and easily, in a manner ‘congenial to the nature of society’, accommodating itself to social change, so that ‘the alterations which become necessary, are produced by almost imperceptible degrees… without the appearance of innovation.”
Ironically, so thoroughly did Scotland imbibe this spirit from its English cousins that when the British Parliament threatened in the early 1800s to succumb to the continental craze for codification and impose a uniform code on the British Isles, the most effective opposition came from the Scots. Recognizing that allegiance to the spirit of the English common law meant resisting the wholesale imposition of English law on a nation with its own traditions, Sir Walter Scott denounced the measures as “calculated to… give to [England]… the insolent air of a conqueror, imposing his laws and customs on a colony.”
Rejecting “the Man of System”: Smith’s Pragmatic Empiricism
In an age when reform was so prone to turn into revolution, this sober philosophy of incremental judicial development played a critical role in anchoring a conservative political theory to which the Scots were among the leading contributors. Adam Smith, a friend of Kames and Hume, championed this legal philosophy in his writings and harbored a chronic suspicion of idealistic projects of social reform by comprehensive legislation. In 1790, witnessing the utopian spirit unleashed by the French Revolution, he inserted a famous denunciation of such visionary schemes into the sixth and final edition of his Theory of Moral Sentiments: “The man of system… is apt to be very wise in his own conceit; and is often so enamoured with the supposed beauty of his own ideal plan of government, that he cannot suffer the smallest deviation from any part of it.” Although claiming to be motivated by “humanity and benevolence,” such men, in Smith’s estimation, really had the minds of mechanical engineers, enjoying the feeling of complete control over a society imagined as an inert mass to be molded in accordance with a preconceived ideal.
“He goes on to establish it completely and in all its parts, without any regard either to the great interests, or to the strong prejudices which may oppose it. He seems to imagine that he can arrange the different members of a great society with as much ease as the hand arranges the different pieces upon a chess-board. He does not consider that the pieces upon the chess-board have no other principle of motion besides that which the hand impresses upon them; but that, in the great chess-board of human society, every single piece has a principle of motion of its own, altogether different from that which the legislature might chuse to impress upon it.”
The truly public-spirited man, on the other hand, Smith wrote, knew how to:
“content himself with moderating, what he often cannot annihilate without great violence….He will accommodate, as well as he can, his public arrangements to the confirmed habits and prejudices of the people; and will remedy as well as he can, the inconveniences which may flow from the want of those regulations which the people are averse to submit to.”
In Smith’s view, it was precisely the narrowness of their task that gave common law judges such an indispensable role to play; bound by existing precedents, judges could only innovate slowly, adapting the law to real changes in society, but without galloping out in advance of them.
It is curious, therefore, that Smith is chiefly remembered and celebrated in our own day for being a bold and iconoclastic visionary, ready to gallop out in advance of his own society in proclaiming a brave new world of free trade and free markets. As the empiricism that once served as the hallmark of conservatism has hardened into a dogmatic orthodoxy of free trade and laissez-faire, Smith’s great achievement in The Wealth of Nations has been increasingly distorted to fit later agendas. The result has been a spreading confusion about the meaning of conservatism and its relation to economic liberalism.
Smith himself, however, was no ideologue. The Wealth of Nations was the product of twenty years of careful empirical observation and historical study, and very few of its conclusions are set down in the form of the unchanging and abstract economic laws so beloved by contemporary economists. Nor would Smith have endorsed the idealistic schemes of future “men of system,” seeking to force complex societies onto the Procrustean bed of simplistic free market schemes. Smith never believed that government inaction would magically produce a free and flourishing society, but rather called for a constant vigilance on the part of wise statesmen to ensure that competition remained equitable. Nor would markets broaden themselves; Smith argued that statesmen must actively promote the opulence of the state by major public investments in roads, canals, and other transportation and communication networks:
“The third and last duty of the sovereign is that of erecting and maintaining certain public works and certain public institutions which it can never be for the interest of any individual, or small number of individuals, to erect and maintain, because the profit could never repay the expense to any individual or small number of individuals, though it may frequently do much more than repay it to a great society.”
Even in the area of free trade, the policy reform most closely identified with Wealth of Nations, Smith was a pragmatist and gradualist. Indeed, since the whole point of his work was to teach statesmen how to promote the wealth of nations, rather than of individuals, it was necessary to prioritize the national interest in any consideration of trade policy. And when national riches and national power conflicted, power was to be preferred. Thus, Smith happily endorsed the protectionist Navigation Acts that structured 18th century British trade policy, although recognizing that they would raise prices: “As defence, however, is of much more importance than opulence, the act of navigation is, perhaps, the wisest of all the commercial regulations of England.”
To be sure, Smith did think that the preponderance of trade regulations served the interest of private monopolists rather than the public interest, and did advocate a broad rollback of tariffs and restrictions. However, true to his pragmatic empiricism, Smith recognized the need to make change slowly, balancing the benefits of free trade against the interests of workers:
“Humanity may in this case require that the freedom of trade should be restored only by slow gradations, and with a good deal of reserve and circumspection. Were those high duties and prohibitions taken away all at once, cheaper foreign goods of the same kind might be poured so fast into the home market as to deprive all at once many thousands of our people of their ordinary employment and means of subsistence. The disorder which this would occasion might no doubt be very considerable.”
Re-examined in the larger context of Scottish empiricism and jurisprudence, we can see that Smith’s market liberalism, far from contradicting his political conservatism, flowed from the same basic intuition about human finitude and the need to learn from experience. In this, he stood shoulder-to-shoulder with his friend, Edmund Burke. Just as political wisdom was derived from the collected judgments of centuries, so economic wisdom was more likely to be found diffused throughout the multitude of private economic agents responding to market signals, than in centralized, top-down efforts to fix prices or quotas.
Just as individual judges, recognizing the demands posed by particular cases, could arrive at the just verdict and gradually improve the administration of substantive justice, so individual farmers, merchants, and manufacturers, discerning the demand for the particular goods they supplied, could arrive at the just price and gradually improve the circulation of “the necessaries and conveniences of life.” And just as men of system were tempted to imagine that they could move the chess pieces of society around in such a way as to produce perfect justice and harmony, so the same men were too liable to imagine that they could construct an imperial economy like an elaborate machine for optimally producing the wealth of nations. It is the spirit of humble empiricism, rather than economic dogma, that lay behind the original conservative impulse toward free markets and common law jurisprudence.
In both cases, however, the Scots recognized the danger of separating the fruits of the method from the method itself. If the English common law was so great, many British parliamentarians mused in the early 1800s, why not go ahead and impose it lock, stock, and barrel on the Scots, who had seemed hungry for it? Because, as conservatives like Sir Walter Scott realized, this defeated the whole point and spirit of the common law, which was as something home-grown, organic, and authentically national. It was one thing for the Scots to borrow and imitate from within their own legal tradition; it was another to have that tradition replaced wholesale.
Conservatives in the 1990s failed to heed this lesson, imagining that if developing countries had admired the blessings of capitalism from afar and begun imitating some of its institutions, then they would surely be happier to just have their own economies overhauled completely in conformity to the best foreign-grown free-market ideals. In the halcyon days of “the end of history,” it seemed that conservatism could be reduced to a program rather than a process, an ideology rather than a habit of mind.
But, of course, the Scots would have warned us that there is no escape from history, only escapism, and history will always have the last laugh on those who think they can leave it behind.
Brad Littlejohn is a senior fellow of the Edmund Burke Foundation, where he researches and writes on the intellectual lineage and contemporary renewal of Anglo-American conservatism.