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INTRODUCTION - Adam Smith, Glasgow Edition of the Works and Correspondence Vol. 5 Lectures On Jurisprudence [1762]

Edition used:

Lectures On Jurisprudence, ed. R.. L. Meek, D. D. Raphael and P. G. Stein, vol. V of the Glasgow Edition of the Works and Correspondence of Adam Smith (Indianapolis: Liberty Fund, 1982).

Part of: The Glasgow Edition of the Works and Correspondence of Adam Smith, 7 vols.

About Liberty Fund:

Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


INTRODUCTION

Jurisprudence is that science which inquires into the general principles which ought to be the foundation of the laws of all nations. Grotius seems to have been the first who attempted to give the world any thing like a regular system of natural jurisprudence, and his treatise on the laws of war and peace, with all its imperfections, is perhaps at this day the most compleat work on this subject.1 It is a sort of casuistical book for sovereigns and states determining in what cases war may justly be made and how far it may be carried on. As states have no common sovereign and are with respect to one another in a state of nature, war is their only method of redressing injuries. He determines war to be lawfull in every case where the state receives an injury which would be redress’d | by an equitable civil magistrate.2 This naturaly led him to inquire into the constitution of states, and the principles of civil laws; into the rights of sovereigns and subjects; into the nature of crimes, contracts, property, and whatever else was the object of law, so that the two first books of his treatise, which are upon this subject, are a compleat system of jurisprudence.

The next writer of note after Grotius was Mr. Hobbes. He had conceived an utter abhorrence of the ecclesiastics; and the bigottry of his times gave him occasion to think that the subjection of the consciences of men to ecclesiastic authority was the cause of the dissensions and civil wars that happened in England during the times of Charles the 1st and of Cromwell. In opposition to them he endeavoured to establish a system of morals by which the consciences of men might be subjected to the civil power, and which represented the will of the magistrate as the only proper rule of conduct. Before the establishment of civil society mankind according to him were in a state of war; and in order to avoid the ills of a natural state, men enter’d into contract to obey one common sovereign who should determine all disputes. Obedience to his will according to him constituted civil government, | without which there could be no virtue, and consequently it too was the foundation and essence of virtue.

The divines thought themselves obliged to oppose this pernicious doctrine concerning virtue, and attacked it by endeavouring to shew that a state of nature was not a state of war but that society might subsist, tho’ not in so harmonious a manner, without civil institutions. They endeavoured to shew that man in this state has certain rights belonging to him, such as a right to his body, to the fruits of his labour, and the fullfilling of contracts. With this design Puffendorf wrote his large treatise.3 The sole intention of the first part of it is to confute Hobbes, tho’ it in reality serves no purpose to treat of the laws which would take place in a state of nature, or by what means succession to property was carried on, as there is no such state existing.

The next who wrote on this subject was the Baron de Cocceii, a Prussian. | There are five volumes in folio of his works published,4 many of which are very ingenious and distinct, especially those which treat of laws. In the last volume he gives an account of some German systems.

Besides these there are no systems of note upon this subject.

Remainder of 4 left blank in MS.

| Jurisprudence is the theory of the general principles of law and government.

The four great objects of law are Justice, Police, Revenue, and Arms.

The object of Justice is the security from injury, and it is the foundation of civil government.

The objects of Police are the cheapness of commodities, public security, and cleanliness, if the two last were not too minute for a lecture of this kind. Under this head we will consider the opulence of a state.

It is likewise necessary that the magistrate who bestows his time and labour in the business of the state should be compensated for it. For this purpose and for defraying the expences of government some fund must be raised. Hence the origine of Revenue. The subject of consideration under this head will be the proper means of levying revenue, which must come from the people by taxes, duties, etca. In general whatever revenue can be raised most insensibly from the people ought to be preferr’d, and in the sequel it is proposed to be shewn how far the laws of Brittain and of other European | nations are calculated for this purpose.

As the best police cannot give security unless the government can defend themselves from forreign injuries and attacks, the fourth thing appointed by law is for this purpose, and under this head will be shewn the different species of Arms with their advantages and dissadvantages, the constitution of standing armies, militias, etca.

After these will be considered the laws of nations, under which are comprehended the demands which one independent society may have upon another, the priviledges of aliens, and proper grounds for making war.

[1 ]Cf. TMS VII.iv.37 (the last paragraph of the book): ‘. . . natural jurisprudence, or a theory of the general principles which ought to run through and be the foundation of the laws of all nations. . . . Grotius seems to have been the first who attempted to give the world any thing like a system of those principles which ought to run through, and be the foundation of the laws of all nations; and his treatise of the laws of war and peace, with all its imperfections, is perhaps at this day the most complete work that has yet been given upon this subject.’

[2 ]Grotius, II.1.2.

[3 ]De Iure Naturae et Gentium (1672), especially II.2.6 ff., attacking Hobbes’s De Cive (1642) and Leviathan (1651).

[4 ]Henrici de Cocceii Grotius Illustratus (4 vol. folio, 1744–52), together with his son’s commentary Samuelis de Cocceii Introductio ad Henrici de Cocceii Grotium Illustratum (1 vol. folio, 1748).