Henry Home, Lord Kames, and the Scottish Enlightenment: A Study in National Character and in the History of Ideas pp 195-219 | Cite as
Kames’s Philosophy of Law; or, His General View of Jurisprudence
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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.
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References
- 1.Sir James Dalrymple, 1st Viscount of Stair, The Institutions of the Law of Scotland, etc. (Edinburgh, 1681).Google Scholar
- 2.Sir George Mackenzie, The Institutions of the Law of Scotland (Edinburgh, 1684).Google Scholar
- 3.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 LawGoogle Scholar
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- 4.Kames, Elucidations, pp. vii-x; cf. also p. 117.Google Scholar
- 5.See supra p. 196. n. 3., and in particular the discussions by T. B. Smith and Peter Stein there cited.Google Scholar
- 5.Elucidations, p, viii.Google Scholar
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- 8.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.)Google Scholar
- 9.See Blackstone, Commentaries, Introduction, Sec. II, opening paragraph. 19 HLT, Tract 1, opening paragraph.Google Scholar
- 11.Equity, vol. I, pp. 43f.Google Scholar
- 12.Tytler, I, 217f.; also p. 157.Google Scholar
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- 22.See especially Sketches, IV, 334ff., 344f. and 348f.Google Scholar
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- 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.Google Scholar
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- 35.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:Google Scholar
- 36.Statutes, tho’ commonly made with a view to particular cases, do yet enact in general upon all similar cases; and as man is but short-sighted with regard to consequences, `tis odds but, in remedying one evil, a greater is produced. A court of justice determines nothing in general; their decisions are adapted to particular circumstances. If upon any occasion they chance to stray, ‘tis but to return again, with greater certainty of the road. They creep along with wary steps, until, at last, by induction of many cases, which have been fix’d in the course of practice, a general rule is with safety formed. And for a proof that there is something here beyond mere fancy, let anyone who is curious, run over our law in this view, and he will find, that those branches of it, which have been modelled by the courts, are, generally speaking, brought nearer a standard, than those upon which statutes are most frequent.“Google Scholar
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- 43.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.Google Scholar
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- 59.James Wilson, Works, J. de W. Andrews, ed. (Chicago, 1896), vol. I, pp. 38–40. 80 Ibid., vol. II, pp. 133–135.Google Scholar
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