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Brexit and Scotland: Centralism, Federalism or Independence?
- Andreas Rahmatian
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- European Review / Volume 26 / Issue 4 / October 2018
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- 25 April 2018, pp. 616-647
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The public debate about the consequences of Brexit in Britain follows certain predictable lines of established academic concepts in British constitutional law. This arguably overlooks the important constitutional complications of Brexit, including the position of Scotland in post-Brexit Britain. This article takes the unorthodox approach of focusing on legal and intellectual history rather than British constitutional law, because in this way one obtains a better understanding of the present British constitutional framework in the context of Europe. The discussion is from a continental European viewpoint and through the eyes of a private and commercial lawyer. The completely different understanding of Britain and Europe about the nature of a constitution and the structure of a state becomes more apparent with Britain’s departure from the EU, which may also influence the future national cohesion of the UK itself, particularly the relationship between England and Scotland after Brexit.
Bibliography of Works by Lord Kames and Abbreviated References
- Andreas Rahmatian
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- Lord Kames
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- 12 September 2017
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- 20 May 2015, pp ix-xiv
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Index
- Andreas Rahmatian
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- Lord Kames
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- 20 May 2015, pp 362-366
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VIII - Equity
- Andreas Rahmatian
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- Lord Kames
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- 20 May 2015, pp 264-286
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Summary
The Meanings of ‘Equity’
Equity has a distinct meaning in English law, but a far less distinct meaning in Scots law, and it denotes a specific, and to some extent idiosyncratic, legalphilosophical theory in Kames's Principles of Equity (1760). Therefore it will first be necessary to ascertain the different meanings of equity. Unlike in philosophy, anthropology and sociology, and property, Kames's discussion of equity is really confined to one work only, the Principles of Equity, which appeared in three editions in Kames's lifetime, in 1760, 1767, and 1778.
Equity in English law
Equity is a distinct body of law within English law for historical reasons. Only a few words about the history of the law of equity suffice for present purposes. From the fourteenth century onwards, the common law courts (King's Bench, Court of Common Pleas, Exchequer), already in existence under Edward I in the thirteenth century, faced a rise of the administration of ‘equity’. An increasing number of litigants petitioned the King's Chancellor, the chief administrator in the realm, for remedies which the common law could not give because it had hardened into a rigid technical system of writs. This was the idea of ‘equity’, a measure to ensure that the law is administered fairly. The Chancellor obtained a limited power of inventing new writs to grant relief in new types of cases. Initially the Chancellors did not perceive themselves as administering a body of rules different from the common law, but gradually their practice grew into what would later be considered as equitable jurisdiction. The Court of Chancery became a separate court and administrative authority of the King in the fourteenth century and a separate body of law developed, with different substantive and procedural rules, called equity. In the sixteenth century a more concrete idea of ‘rules of equity and good conscience’ as a guide in the Chancellors’ administration of justice emerged. It was also in the latter half of the sixteenth century that Chancellors were usually no longer clergymen, but lawyers.
Contents
- Andreas Rahmatian
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- Lord Kames
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Frontmatter
- Andreas Rahmatian
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- Lord Kames
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- 20 May 2015, pp i-iv
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Lord Kames
- Legal and Social Theorist
- Andreas Rahmatian
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The Scottish jurist, judge, legal historian and philosopher Henry Home (1696-1782) took the title Lord Kames when he was elevated to the bench of the Scottish Court of Session in 1752. In the 18th century, his books were influential and widely read; the educated classes and representatives of the Enlightenment in England, France and in the German states were all familiar with his aesthetic and philosophical writings. Andreas Rahmatian explains Kames' conceptions of legal philosophy, including black-letter law, legal science, legal theory, legal sociology and anthropology in its early stages, setting them in the context of the Scottish Enlightenment. He looks at how Kames came to be one of the forefathers of comparative law, sociology of law, legal psychology and 'legal science' in its proper meaning, as opposed to 'law'.
VI - Legal History, Legal Science and Comparative Law
- Andreas Rahmatian
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- Lord Kames
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- 12 September 2017
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- 20 May 2015, pp 191-219
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Kames's Legal History and Conjectural or Philosophical History
Before one can embark on a discussion of the more technical legal sections in Kames's oeuvre, it is necessary to explain the underlying philosophy of history which underpins most of Kames's writings on law. For the ahistorical mind of the modern black-letter lawyer this may be astonishing, but for Kames the present law is inevitably the result of a historical process and of an anthropological development; it is also the outcome, if not a branch, of applied moral philosophy and formal philosophical reasoning. Otherwise it cannot be understood and lacks the quality of a ‘science’, a status Kames always wanted law to elevate to. If law is studied divorced from its historical and philosophical context, it degenerates into a dry set of meaningless and unsystematic rules, adhered to on the basis of authority only, and not developed by the exercise of reason:
The history of mankind is a delightful subject. A rational enquirer is not less entertained than instructed, when he traces the gradual progress of manners, of laws, of arts, from their birth to their perfect maturity…. Law in particular becomes then only a rational study, when it is traced historically, from its first rudiments among savages, through successive changes, to its highest improvements in a civilized society…. Law, like geography, is taught as if it were a collection of facts merely: the memory is employed to the full, rarely the judgment…. Such neglect of the history of law is the more unaccountable, that in place of a dry, intricate and crabbed science, law treated historically becomes an entertaining study …
What are our law-books but a mass of naked propositions, drawn chiefly from the decisions of our supreme courts, rarely connected either with premises or consequences? … [The professors of Roman law] load the weak mind with a heap of uninteresting facts, without giving any exercise to the judgment. Is it surprising, that the Roman law, so taught, is held to be a dry and fatiguing study? … Were law taught as a rational science, its principles unfolded, and its connection with manners and politics, it would prove an enticing study …
V - Political Philosophy, Anthropology and Commerce
- Andreas Rahmatian
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- Lord Kames
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- 20 May 2015, pp 142-190
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The Stages of Natural History of Society and of Progress as Part of Conjectural History
In the moral philosophy of the Scottish Enlightenment the moral sense derives from human nature. This foundation in human nature is associated with the aspiration of the Scottish philosophers to explore a universal speculative anthropological history of the development or progress of man and human society. Lord Kames is one of the central exponents of this project, alongside particularly Adam Ferguson, Lord Monboddo and John Millar, but that idea also appears, less prominently, in the works of David Hume and Adam Smith. Some facets of this anthropological-philosophical history of progress already appeared in the discussion of the development of reason, morals, manners and religion. Kames's Sketches of the History of Man (1774) is the consolidating work that epitomises this approach: ‘To trace out [the] progress toward maturity in different nations, is the subject of the present undertaking’. But this work draws considerably from Kames's earlier works.
Kames is one protagonist of a famous feature in the intellectual history of the Scottish Enlightenment, the notion that human societies developed in several (commonly four) relatively distinct stages based on modes of subsistence: the age of hunting, herding (age of shepherds), farming (age of agriculture) and the age of commerce as the most developed phase. It is a method by which Kames seeks to present and explain the routes of human progress in social history. The stadial theory of human development appears often and in different contexts in Kames's works. Rather than dwelling on an abstract analysis of the stadial theory, one may benefit from an example from Kames's writings, not a prominent example, but a short one and so suitable for a quotation. It describes the development of contractual obligations:
Originally, every family subsisted by hunting, and by the natural fruits of the earth. The taming [of] wild animals, and rendering them domestic, multiplied greatly the means of subsistence. The invention of agriculture produced to the industrious a superfluity, with which foreign necessaries were purchased. Commerce originally was carried on by barter or permutation, to which a previous covenant is not necessary. After money was introduced [transactions were first carried on] without any previous covenant… .
Bibliography
- Andreas Rahmatian
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- Lord Kames
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- 20 May 2015, pp 341-361
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IX - Obligations and Enforcement
- Andreas Rahmatian
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- Lord Kames
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- 20 May 2015, pp 287-299
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Promises, Covenants, Contractual Obligations and their Philosophical Foundations
Kames's legal theory of obligations largely grew out of his conception of equity. As usual, Kames combines this theory with a conjectural history of the development of contractual obligations which are the product of a development of moral principles as well as of legal forms and phenomena.
Conjectural history of promises and covenants
The importance of moral principles grows with the refinement of human society. That also applies to promises and covenants: in fully evolved, established societies they have full effect, but in less developed societies (Kames of course says, ‘among barbarians’) promises and covenants carry not much weight, and that is worsened by the fact that the language at that stage also lacks sophistication. Societies pass through the ages of hunting and of herding, and then reach the stages of agriculture, and finally, of commerce. Commerce really started with barter. The introduction of money made the barter evolve into an exchange of goods against money, that is, a sale, but ‘without a previous covenant’. Thus at that level of evolution Kames perceives this transaction as a factual exchange only without the realisation of an underlying obligation of the parties that could be separated conceptually and in time from that factual transfer/exchange. This understanding of an obligation emerged when society became more complex and there ‘came to be a demand for interposed persons’, brokers, go-betweens, agents, merchants, who ‘take care to be informed of what is redundant in one corner, and of what is wanted in another’, what one would probably characterise as the information function of the market today. Only then, ‘and no sooner’, did the use of covenants become recognised, because without previous agreements the business of a merchant cannot be carried on. In Roman law the sale was a recognised contract because commerce had already been advanced in Rome, something that also becomes apparent from the existence of the ‘location’, and the ‘contract of society’ or partnership. Besides there existed only the solemn promise or stipulatio in Roman law which was enforceable. Among ancient peoples simple promises only become recognised (enforceable) with the ‘progress in social life’ when their usefulness was realised, Kames argues, and he refers to Herodotus for historical examples of solemn acts that were to give weight to promises.
I - Introduction
- Andreas Rahmatian
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- Lord Kames
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Lord Kames's Idea of Enlightened Scientific and Social Progress: the Interrelated Disciplines of Moral Philosophy, Aesthetics, Anthropology and Law
During a short period between around 1740 and 1790, Scotland became an intellectual centre of Europe. The intellectual and cultural movement in that period of Scottish history is commonly called the Scottish Enlightenment. This expression will be used here uncritically because it is not the purpose of this book to discuss the complex and controversial problems as to what were the distinguishing intellectual features of the era that is termed ‘Enlightenment’, what was specifically Scottish about the Scottish Enlightenment, and what were the factors which brought about the phenomenon of the Scottish Enlightenment. In any case, ‘Scottish Enlightenment’ is a well-established term today. Edinburgh, it is true, could never quite compete with the centre of the Enlightenment, Paris, and possibly not with London either, but it ranked above the German and Italian cities at the time. What was thought, published, disputed and discussed particularly in Edinburgh and in Glasgow mattered to the world then, and to a significant extent it still matters today. The literati and philosophes of the Enlightenment, in Paris, in London, in the cities of the German and Italian principalities, in Northern and Eastern Europe, and in colonial America would listen carefully to what the Scottish intellectuals had to say, engaged critically with them, and were often also influenced by them.
This book is about one of these influential intellectuals of the Scottish Enlightenment who was listened to by Voltaire (and fiercely criticised), by Herder, Mendelssohn and Lessing, by John Adams, Thomas Jefferson, and Benjamin Franklin who was even a personal friend: the jurist and philosopher Henry Home, who took the title Lord Kames when he was elevated to the Bench of the Scottish Court of Session in 1752. The book is not about Kames's life – excellent biographies about him exist – but about Kames's thought, about Kames as a legal and social theorist. This already reveals that the characterisation ‘jurist and philosopher’ used before is just a convenient but simplifying and possibly misleading shorthand expression. What Kames really was is extremely difficult to describe. He was one of the makers of the Scottish Enlightenment – the ‘Father’ of the Scottish Enlightenment was, however, Francis Hutcheson, if such an accolade is needed at all.
III - Moral Philosophy I: Principles
- Andreas Rahmatian
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- Lord Kames
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- 12 September 2017
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- 20 May 2015, pp 36-91
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Foundation and Principles of Morality; Duty and Justice
Moral beauty and the moral sense
The idea of a moral sense is closely attached to aesthetics and the sense of beauty in the Scottish moral philosophy of the Enlightenment. The power to perceive the ideas of beauty and harmony is an internal sense, and so is the ability to perceive and distinguish moral good and evil. This moral sense that empowers us to approve or disapprove rational actions in others makes such actions appear ‘beautiful’ or ‘deformed’. That conception was a fertile ground for Kames's project to connect aesthetics, moral philosophy and law or legal philosophy as the foundation for concrete legal rules. Kames's own moral philosophy will be presented first. Then it will be put in context with the moralists Kames was influenced by, especially Hutcheson and Shaftesbury, and thinkers with whom Kames has been in an intellectual exchange, such as David Hume, Adam Smith and Edmund Burke.
Kames considers moral philosophy (as well as aesthetics) firmly rooted in empiricism. He rejects a purely rationalist and speculative system of morals that contains rules for ‘human conduct … without the least consideration, whether they arise out of human nature, or can be accommodated to it’. The foundations of all morality which derive from the common nature of man are: there is the connection of being and actions, that is, cause and effect (‘Such as the being is such must its actions be’); there is also a uniformity of conduct peculiar to each species, and if this conduct conforms to the common nature of the species, it is regarded as regular, according to order and to nature. ‘The laws of each species’, so Kames, ‘are adjusted to the frame of the individuals which compose it, so as to procure the conveniences of life in the best manner, and to produce regularity and consistency of conduct’.
VII - Property
- Andreas Rahmatian
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- Lord Kames
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- 12 September 2017
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- 20 May 2015, pp 220-263
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Modern Legal Concepts of Property
Property, both as a legal concept and as a historical, social and anthropological reality that passes through several stages of civilisation, forms a central part in Kames's thinking. It can be said that one of Kames's greatest and lasting contributions lies in his historical, legal and anthropological-sociological property theory. In line with his other writings, Kames presents his property theory in his characteristically mixed legal, socio-historical and conjectural philosophical style. Kames's property theory is not conveniently expounded systematically in one treatise, but scattered around in several works when their author found it appropriate to discuss theoretical aspects of property, mainly in the Historical Law-Tracts (1758), but also in the Essays upon Several Subjects concerning British Antiquities (1747), the Principles of Equity (1760), the Sketches of the History of Man (1774), and the Elucidations (1777), and that list is not complete. So the underlying theory and principles of property must be distilled and pieced together from several sources, and that invariably involves a considerable degree of interpretation which some readers may find unduly speculative. This necessarily ‘creative’ element in the rendering of Kames's ideas about property may also induce commentators on Kames's property theory to engage in their own philosophical arguments about property. It can then become dangerously unclear as to where Kames's property theory ends and where one's own property theory starts. I am at risk here myself, because my own property theory is fundamentally influenced by Lord Kames. This may show how rich, powerful and inspiring Kames's thinking about property still is, after 250 years, and it deserves a much more prominent position than at present in modern property theory discourse.
Before Kames's property theory is presented, it is necessary to discuss typical modern legal theories of property for the benefit of non-lawyers as well as lawyers, because many legal practitioners take property concepts for granted without much reflection. Emphasis is not on one specific theory of property, but on a pragmatic mixture which mirrors legal reality. That also presupposes an awareness of the two European property philosophies, one based on Roman law and found in Scotland and the European continent, and the other developed by English Common Law.
II - Aesthetics
- Andreas Rahmatian
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- Lord Kames
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Summary
Aesthetics as the Prolegomena to Kames's Moral Philosophy, and Legal and Social Theories
When Kames wrote the Elements of Criticism, his legal background will have been of some assistance when he planned the logical organisation of his work. It was not unusual in the eighteenth century that someone with a legal training would write a critical theory of the arts to provide a scientific framework for their understanding, analysis and appreciation. There were authors of aesthetic theory with a legal background as well as artists who had a legal and/or philosophical training, although the latter group often prepared more practical textbooks on art creation. What is exceptional is that the Elements of Criticism were composed by someone who practised law throughout his whole life, and perhaps because of that, the aesthetic concepts in this work are not only closely interrelated with moral philosophy, but are also relevant to concepts of law. The Elements of Criticism is a central treatise within Kames's oeuvre and it is therefore appropriate to introduce Kames's legal and social theories with his ideas about aesthetics.
The Elements of Criticism seeks to present systematically a comprehensive critical theory of the arts (in fact mostly of literature), based on the moral philosophy and aesthetics of the time. The work is in the tradition of Shaftesbury and Hutcheson, and is influenced by Hume. There is no evidence that Kames was familiar with Burke's Origin of our Ideas of the Sublime and Beautiful (1756). In Kames's words the book wants to provide ‘a foundation for reasoning upon the taste of any individual, and for passing sentence upon it’, so to turn ‘criticism into a regular science’. Although systematically structured, it is by no means always lucid in its organisation and often quite peculiar in its choice of themes and their exposition. David Hume called the work ‘too abstruse and crabbed ever to take with the Public’, but it proved surprisingly successful, particularly in Germany and the United States.
X - Criminal Law
- Andreas Rahmatian
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- Lord Kames
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- 20 May 2015, pp 300-315
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The Moral Sense of Right and Wrong: the Notion of Punishment
Criminal law was clearly not at the forefront of Kames's interests. And yet, some of the most central passages that defined the concept of conjectural history of the Scottish Enlightenment are in a single piece Kames wrote on criminal law, the first of the Historical Law-Tracts (1758) and the only text in his large oeuvre specifically devoted to criminal law.
We have encountered Kames as a fierce advocate for a legal science, which entails logical reasoning, systematisation, an idea of a rule of law and, nowadays, precise definition and labelling of criminal offences, exact rules of interpretation based on rational principles – all that to avoid arbitrariness of court decisions, since ‘judges ought to be confined to general rules, the only method invented to prevent legal oppression’. But Tract I on criminal law contains nothing of that sort, in particular no theoretical-doctrinal discussion of which is now called the ‘General Part’ of the criminal law: the general rules and principles of criminal law which apply not to specific crimes but to crimes in general, such as the state of mind (intention/recklessness), acts and omissions, causation, defences, accessories to crimes. Kames did not venture to develop a scheme of classification for Scots criminal law either. This was left to Kames's protégé, John Millar, who provided in his (unpublished) lectures a classification of Scots criminal law, based on Adam Smith's Lectures on Jurisprudence (then unpublished), and Erskine's Principles of the Law of Scotland (1754) and his Institute which appeared only in 1773. Hence Kames does not discuss the possible codification of criminal law either, a topic that was much debated and promoted in the latter half of the eighteenth century.
When Kames wrote about criminal law in the 1750s, there was not much literature on Scots criminal law Kames could have drawn from for any possible doctrinal studies: Mackenzie's Laws … in Matters Criminal (1678) was becoming out of date both in substance and style, law reporting of criminal cases was sketchy, but there was a short textbook on criminal law by the professor of Scots law in Edinburgh, Alexander Bayne, published in 1730.
XII - A Critical Conclusion
- Andreas Rahmatian
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- Lord Kames
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- 20 May 2015, pp 334-340
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One could conclude this book by restating a condensed version of Kames's main theories and opinions. But the presentation of Kames as a legal and social theorist was also directed at serving as a starting point for one's own reflection and analysis, inspired by some of Kames's views for further elaboration and, certainly often, for disagreement. Kames can be an impulse and ferment for the development of one's own independent thinking. This is what he always wanted to instil in others. Kames is not a purely historical figure of a past era but a theorist who is still relevant. It is therefore better to summarise some characteristic aspects of his positions, and to sketch out a beginning for further critical interpretation.
The core of Kames's philosophical-legal thinking is intuitionist morality: the ‘moral sense’ within a conjectural approach to ‘human nature’, although this ‘science of man’ is supposed to be ascertained empirically. Following Francis Bacon and René Descartes, the scientific revolution of the seventeenth century that brought about the modern natural sciences was to be applied to human psychology and the development of human societies and its political systems. The mechanistic-deterministic idea of social conceptions in the Scottish Enlightenment, modelled upon the natural laws in physics and astronomy in particular, shines through in Kames's idea of the moral sense. There is an understanding that every human being, no matter in whichever historical epoch, in whichever social class and economic situation, in whichever cultural environment, subjected to whichever form of education, has an innate moral sense, which is uniform and the result of a perfect regularity of the human species. The moral sense provides all human beings with the ability to distinguish right from wrong, and it is the root for a sense of duty and obligation – to society as well as to oneself. A mirror image of the moral sense is the innate sense of intrinsic beauty and relative beauty: relative beauty is the beauty of utility: does the object in question also relate to some good purpose or is it only visually pleasing?
XI - Lord Kames's Influence on Some of the Founders of the United States
- Andreas Rahmatian
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The Reception of Kames's Works by Some of the Founders of the United States
Lord Kames was highly relevant to colonial America before and around the time of independence. There were a number of reasons for that. The prolific nature of Kames's writing in an astonishingly great number of areas (though not always with equally high quality) played a significant role in his reception in North America. In some ways he was providing fairly orderly and portable ‘codifications’ of large areas of knowledge of his time – law, moral philosophy, legal and social history, property and economic theory, education, aesthetics, rhetoric and letters, and agriculture. That was of much use in the intellectual outpost of civilisation which colonial America then was. The Enlightenment man and uomo universale Kames served as a transmitter, and to some extent populariser, of eighteenth-century thought. Furthermore, he was not English, but Scottish, and that not only chimed with the Scottish and Protestant-Calvinist roots of many of the American settlers; it also made Kames an unsuspicious, and potentially even sympathetic, author during the growing political and economic tensions with England-dominated Britain which would lead to American independence in 1776. The fact that Kames was a figurehead of the Scottish Enlightenment and, as a Scottish judge, a member of the Scottish establishment, gave his books an increased authority, and that by no means applied to his legal works only.
All that made Kames attractive to several founders of the United States as well. Those founders who studied Kames were not collectively influenced by him, but individually, and also each of them by different works. Kames reached them during their individual training in their formative period, well before they entered the political arena. As Kames's works covered an unusually large field, each reader would pick out these works which served his interests most. Thomas Jefferson was here probably the reader with the broadest interest.
IV - Moral Philosophy II: Development
- Andreas Rahmatian
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- Lord Kames
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- 20 May 2015, pp 92-141
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Development of the Reasoning Faculty
Forms of reasoning
A characteristic feature of the Scottish Enlightenment was a social theory that encompasses the development, and usually improvement, of man as an individual and of man set in society. Kames is a principal representative of this approach; the whole idea and structure of his Sketches of the History of Man in particular is built upon a notion of progress. Therefore there is a temporal element in his concept of social institutions; stages of evolution are identified or postulated, and these stages are connected with a narrative, a history. That applies to political history in the strict sense, and to social history, especially the history of legal systems and legal institutions, such as property which is a central theme in Kames's work. But this method is also used for the natural sciences and for the ‘social’ sciences, here understood as a scientific approach to social phenomena of man and society that takes its cue from the natural scientists, especially from Newton, and relies philosophically mainly on Robert Boyle and Francis Bacon. The influence of Bacon's division of history as being either natural (works and acts of nature) or civil (works and acts of men) is clearly present. This historical-empirical approach, a philosophical understanding or arrangement of historical processes, will be discussed in full detail in the context of political philosophy, anthropology and legal history. It was only consequent for Kames to apply the same method, comprising temporality, narrative connections and empirical or conjectural evidence, to systems of thought and to human behaviour guided by these systems of thought: on this basis Kames expounds the development of human reasoning, the development of morality and manners, and of religion. That is what we look at in this chapter. Here one will encounter already the distinctive mixture between ahistorical ‘pure’ philosophical thought and an anthropological/social history of man that is founded on philosophical assumptions. Kames's historising approach is a typical method in the armoury of the Enlightenment: one can present divergent positions and back these up with undeniable evidence from history.
Preface
- Andreas Rahmatian
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Lord Kames (Henry Home, 1696–1782) is one of the best-known figures of the Scottish Enlightenment by name, and one of the least known in relation to his actual writings. He is portrayed as a kind of Pantalone (or perhaps Dottore) character of the Scottish eighteenth-century commedia dell'arte, but also as a mover and broker, an incessant promoter of Enlightenment ideas, mentor of younger thinkers, such as Adam Smith and Thomas Reid, friend (at least for some time) of David Hume, an improver of Scottish society and commerce, especially Scottish agriculture. But he was apparently not an original thinker, was domineering and arrogant, and published heaps of books of questionable quality which are only worth quoting to demonstrate oddities of thought and to make the real geniuses of the Scottish Enlightenment, such as Hume or Smith, shine in a brighter light. Kames is said to have dabbled in many unrelated areas, mastered none properly (including law), and was essentially a conservative, derivative writer within the mainstream of eighteenth-century Scotland.
If Lord Kames had indeed been so uninteresting, then somebody else would have had to write this book. The best, sometimes perhaps the only, way to become interested in Kames is to read his works in the original. One notices immediately that Kames is a distinctive three-dimensional figure, and he effortlessly projects his strong opinions, originality and vivacious personality through his texts over 230 years after his death. That may indeed become overbearing for some in a managerialist age where individualism must be professed but must never be lived. Kames had a booming magisterial voice, certainly in his writings and reportedly in real life, and he knew all too clearly what was right and wrong; or, more precisely, as a man of the Enlightenment, he said loudly that he knew exactly that he did not know, and everybody else ought to be equally sceptical.
And sceptical he was, argumentative, disputatious, ‘spikey’, unpredictable, irregular, sometimes incoherent, with a certain principled honesty which never gets recognised. Kames emphatically invites the readers, particularly the lawyers, to engage in independent reasoning and to question authority at any level. There is probably no Enlightenment thinker other than Kames who has addressed the battle cry of the Enlightenment ‘think for yourself’ (Kant's ‘Sapere aude!’) so directly and so specifically to lawyers. Kames was a Scottish judge, jurist, moral philosopher, reformer.