David Hume and Adam Smith on Law and Justice

Andreas Rahmatian is Professor of Commercial Law at the University of Glasgow, where he teaches intellectual property law and commercial law. His research interests comprise intellectual property law, property law and property theory, commercial law, comparative (private) law and intellectual history and the law. In the areas of property theory and legal history, he has published on Lord Kames’s property theory and his Principles of Equity.

• PrefaceI. Introduction: The Importance of Law in Hume's and Smith's Writings and among other Philosophers of the Scottish Enlightenment1 The Theme of this Booka) The intellectual relationship between David Hume and Adam Smith: the relevance of lawb) The considerable importance of law in the moral philosophy of Hume and Smith2. The Emphasis on Law in the Moral Philosophy of the Scottish Enlightenmenta) Francis Hutcheson (1694–1746)b) Lord Kames (Henry Home) (1696–1782)c) Thomas Reid (1710–1796)d) Adam Ferguson (1723–1816)e) James Beattie (1735–1803)3. Use of Sources and Methodology4. A Short Introduction to Basic Concepts and Principles of Private Law for the Non-LawyerII. Morality and Law1. Relevant Parts of Hume’s Epistemic Framework for Hume’s Conception of Morality: An Outline of Hume’s Theory of the Minda) Impressions, ideas and relationsb) Cause and effectc) Personal identity: the commonwealth and the company as comparisons2. Hume’s System of Morality and Its Relationship to Lawa) Passions, necessity and reasonb) Reason and morality: the is-ought problemc) Morality and law3. Adam Smith’s Conception of Morality and Its Relevance to Lawa) The position of Smith’s moral philosophy between a theory of understanding and a theory of lawb) Smith’s concept of passions, sympathy and the impartial spectator as the measure for propriety4. Hume’s and Smith’s Philosophies of Morality in Relation to Law within the Scottish EnlightenmentIII. Justice and Its Origin1. Justice within Hume’s Overall Conception of Human Nature2. Hume’s Idea of Justice as an Artificial Virtue, and the Origin of Justice3. Adam Smith’s Idea of Justicea) The general rules of morality and their relationship to justice, and the notion of ‘laws’b) Justice and its enforcement through punishmentc) Smith’s and Hume’s different conceptions of justice4 The Concept of Justice: a Comparison with Other Representatives of the Scottish Enlightenmenta) Francis Hutchesonb) Lord Kames (Henry Home)c) Thomas Reidd) A critical summaryIV. Property1. Origin and Justification of Propertya) Origin and justification of property according to Humeb) Origin and justification of property according to Smith: the four-stages theory of human progressc) A modern definition of property and property right, and Scottish Enlightenment thought as an impulse2. Acquisition of Propertya) Humeb) Smith3. Prescription4. Transfer of Propertya) Humeb) Smith5. Restricted or Subordinate Real Rights: an Example of Smith’s Idea of Historical Jurisprudence6. Property as a Cornerstone of Justice and as a Basis for CommerceV. Obligations1. Promises and Contractsa) Humeb) Smith2. Delict or Tort and Causation3. Tort (Reparation) and CrimeVI. Family, Government, Nations and Trade1. Introduction2. Family and Householda) Marriage and familyb) Servants and employees, and slaves3. Governmenta) Society, and the origin, principles and forms of governmentb) The idea of the social contract or ‘original contract’c) The relationship between the individual and the state: allegiance and resistance to government4. Law of Nations5. Trade and Commercea) Contractsb) Property and property transferc) Abolition of the feudal systemConcluding CommentsBibliographyIndex