Adam Smith is often considered the father of modern economics.  Consider, for instance, the following quote taken from Professor Paul A. Samuelson’s famous textbook Economics:

Where and when did the great river that is economics today arise?  We can date the origins of modern economics in 1776, the year Adam Smith published the classic An Inquiry into the Natures and Causes of the Wealth of Nations.

Economics: 15th Edition, Page 5.

Smith’s book, Wealth of Nations, rightly established him as one of history’s greatest economists.  However, few of Smith’s devotees realize that he began his teaching career at Glasgow University with lectures on law and jurisprudence.

In fact, Smith openly stated his intent to write a comprehensive treatise on the law.  He made this statement at the very end of his other great book The Theory of Moral Sentiments.

Smith first notes the absence of any comprehensive text on “the natural rules of justice.”  Even thinkers such as Cicero, Aristotle, and Plato fail to deal directly with “positive laws,” according to Smith.  Therefore, he asserts:

I shall, in another discourse, endeavor to give an account of the general principles of law and government, and of the different revolutions they have undergone in the different ages and periods of society, not only in what concerns justice, but in what concerns police, revenue, and arms, and whatever else is the object of law.

Theory of Moral Sentiments, Part VII, Section 4.

This statement remained in all six editions of the book from 1759 to the time of Smith’s death in 1790.  Thus his intention to write such a treatise was genuine.  And it’s probable that began drafting the work over the course of his academic career.  Unfortunately, whatever drafts or manuscripts that Smith produced for the treatise were burned with the rest of his papers, at his request, after his death.

Nevertheless, at least some of Smith’s thoughts and teachings on law and jurisprudence were preserved in the form of lecture notes that somehow avoided the fate of his other unpublished writings.  These notes have been compiled, edited, and published by Glasgow University Press as Smith’s Lectures on Jurisprudence.

These Lectures on Jurisprudence, coupled with segments from Wealth of Nations and Theory of Moral Sentiment give us some insight into Smith’s thoughts on law and the legal system.  As law professor David Lieberman of the University of California at Berkeley puts it:

[T]hese Lectures supply the illuminating connective tissue between Smith’s two great and enduring published contributions to moral and social theory.  As such…these materials have come to figure critically in the general interpretation of Smith’s science of man and of the broad jurisprudential orientation suggested by his placement of political economy within the “science of a legislator.”

The Cambridge Companion to Adam Smith, Page 216.

So what were Smith’s thoughts on law and the legal system?

Smith’s Thoughts on Justice

The first thing to grasp is that Smith saw justice as a “negative virtue.”  It stopped us from harming others but did nothing to impose morality on the citizenry.  While discussing the “Sense of Justice” in his Theory of Moral Sentiments, Smith writes,

Mere justice is…but a negative virtue, and only hinders us from hurting our neighbor.  The man who barely abstains from violating either the person, or the estate, or the reputation of his neighbor, has surely very little positive merit.  He fulfils, however, all the rules of what is peculiarly called justice…We may often fulfill all the rules of justice by sitting still and doing nothing.

Theory of Moral Sentiments, Part II, Section ii.

According to Smith,

Justice is violated whenever one is deprived of what he had a right to and could justly demand from others, or rather, when we do him any injury of hurt without a cause.

Lectures on Jurisprudence

This definition of justice is applicable, says Smith, in three separate categories: (1) between one man and another, (2) between a man and his family, and (3) between a man and his government.

The Impartial Spectator

Every law student in the English-speaking world learns about the “reasonable man” standard as part of his legal training.  This standard is applied in all cases where the defendant is accused of negligence. It was established by the English Court of Common Pleas in the case of Vaughan v. Menlove in 1837.

Half a century earlier, Professor Adam Smith was lecturing his Glasgow students about a similar standard, something he called the “impartial spectator.”

This theoretical person, Smith asserts, could be used to determine rights in several legal areas.  The terms of a contract, for example, could be interpreted by what “an impartial spectator would readily go along with.”[1]  Similarly, the “impartial spectator” is used in Smith’s discussion of adverse possession in Part One of his lecture entitled “Of Justice.”  Lastly, Smith invokes the “impartial spectator” when discussing legal punishment, insisting that

The measure of the punishment to be inflicted on the delinquent is the concurrence of the impartial spectator with the resentment of the injured.

Lectures on Jurisprudence.

Natural Law vs. Positive Law

Smith defined natural law or natural jurisprudence as “a theory of the general principles which ought to run through and be the foundation of the laws of all nations.”[2] 

Positive law, on the other hand, was “a more or less imperfect attempt towards a system of natural jurisprudence, or towards an enumeration of the particular rules of justice.” Smith adds that “[s]ystems of positive law…can never be regarded as accurate systems of the rules of natural justice.”[3]

What prevented positive law from accurately representing natural justice?  According to Smith, corruption of the law was due to “the interest of the government,” “the interest of particular orders of men who tyrannize the government,” or “the rudeness and barbarism of the people.”[4]

[1] Lectures on Jurisprudence, ii, 42-5

[2] Theory of Moral Sentiments, Part VII, Section iv.

[3] Id.

[4] Id.