Econlib

The Library

Other Sites

 Front Page arrow Titles (by Subject) arrow Part 1st. Of Justice - Glasgow Edition of the Works and Correspondence Vol. 5 Lectures On Jurisprudence

Return to Title Page for Glasgow Edition of the Works and Correspondence Vol. 5 Lectures On Jurisprudence

Search this Title:

Part 1st. Of Justice - 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.


Part 1st. Of Justice

The end of justice is to secure from injury. A man may be injured in several respects.

1st, as a man

2dly, as a member of a family

3dly, as a member of a state.

As a man, he may be injured in his body, reputation, or estate.

As a member of a family, he may be injured as a father, as a son, as a husband or wife, as a master or servant, as a guardian or pupil. | For the two last are to be considered in a family relation, till such time as the pupil can take care of himself.

As a member of a state, a magistrate may be injured by dissobedience or a subject by oppression, etca.

A man may be injured 1st, in his body by wounding, maiming, murthering, or by infringing his liberty.

2dly, in his reputation, either by falsely representing him as a proper object of resentment or punishment as by calling him a thief or robber, or by depreciating his real worth, and endeavouring to degrade him below the level of his profession. A physician’s character is injured when we endeavour to perswade the world he kills his patients instead of curing them, for by such a report he loses his business. We do not however injure a man when we do not give him all the praise that is due to his merit. We do not injure Sir Isaac Newton or Mr. Pope, when we say that Sir Isaac was no better philosopher than Descartes or that Mr. Pope was no better poet than the ordinary ones of his own time. By these expressions we do not bestow on them all the praise that they deserve, yet we do them no injury, for we do not throw them below the ordinary rank of men in their own professions. | These rights which a man has to the preservation of his body and reputation from injury are called natural. Or as the civilians express them iura hominum naturalia.

3dly, a man may be injured in his estate. His rights to his estate are called acquired or iura adventitia and are of two kinds, real and personal.

A real right is that whose object is a real thing and which can be claimed a quocumque possessore. Such are all possessions, houses, furniture.

Personal rights are such as can be claimed by a law–suit from a particular person, but not a quocumque possessore. Such are all debts and contracts, the payment or performance of which can be demanded only from one person. If I buy a horse and have him delivered to me, tho’ the former owner sell him to another, I can claim him a quocumque possessore; but if he was not delivered to me, I can only pursue the seller.

Real rights are of four kinds, Property, Servitudes, Pledges, and Exclusive Priviledges.

Property is our possessions of every kind which if any way lost, or taken from us by stealth or violence, may be redemanded a quocumque possessore.

| Servitudes are burthens upon the property of another. Thus I may have a liberty of passing thro’ a field belonging to another which lyes between me and the high way, or if my neighbour have plenty of water in his fields and I have none in mine for my cattle, I may have a right to drive them to his. Such burthens on the property of another are called servitudes. These rights were originally personal, but the trouble and expence of numerous lawsuits in order to get possession of them, when the adjacent property which was burthened with them passed thro’ a number of hands, induced legislators to make them real, and claimable a quocumque possessore. Afterwards the property was transferred with these servitudes upon it.

Pledges, which include all pawns and mortgages, are securities for something else to which we have a right. The laws of most civilized nations have considered them as real rights, and give a [a] liberty to claim them as such.

Exclusive priviledges are such as that of a book–seller to vend a book for a certain number of years, and to hinder any other person from doing it during that period. These rights are for the most part creatures of the civil law, tho’ some few of them are natural, | as in a state of hunters even before the origin of civil government if a man has started a hare and pursued her for sometime, he has an exclusive priviledge to hunt her, by which he can hinder any other to come in upon her with a fresh pack of hounds.

An heir has also an exclusive priviledge of hindering any person to take possession of the inheritance left him while he is deliberating whither or not it will be for his interest to take possession of it and pay off the debts with which it is burthened.

Personal rights are of three kinds as they arise from Contract, Quasi Contract, or Delinquencey.

The foundation of contract is the reasonable expectation which the person who promises raises in the person to whom he binds himself; of which the satisfaction may be extorted by force.

Quasi contract is the right which one has to a compensation for necessary trouble and expence about another man’s affairs. If a person finds a watch in the high–way he has a claim to a reward and to the defraying of his expences in finding out the owner. If a man lend me a sum of money5 he has a right not only to the sum, but to interest also.

| Delinquencey is founded upon damage done to any person, whither thro’ malice or culpable negligence. A person has a right to claim these only from a certain person.

The objects of these seven rights make up the whole of a man’s estate.

The origin of natural rights is quite evident. That a person has a right to have his body free from injury, and his liberty free from infringement unless there be a proper cause, no body doubts. But acquired rights such as property require more explanation. Property and civil government very much depend on one another. The preservation of property and the inequality of possession first formed it, and the state of property must always vary with the form of government. The civilians begin with considering government and then treat of property and other rights. Others6 who have written on this subject begin with the latter and then consider family and civil government. There are several advantages peculiar to each of these methods, tho’ that of the civil law seems upon the whole preferable.

[5 ]Loan, being the result of agreement, is a contract, not a quasi–contract. Smith may have been misled by Hutcheson, System, II.82–3, where ‘advances upon hazard’ are treated as quasi–contractual.

[6 ]Notably Hutcheson, M.P., Books II and III, and System, Books II and III. LJ(A) follows Hutcheson’s order of treatment.