April 05, 2009

Scottish Law: the problem of feudalism

Adam Smith provided one of the classic accounts of the development of human society. He argued that human society proceeded through four stages of development in which law, society and economics all did different things. Most people will recognise this kind of theory as the beggining of another line of thought that culminated one hundred years after Smith was writing with Karl Marx's Kapital. But actually Smith provided one of his fullest accounts of these stages within his Lectures on Jurisprudence (though the Wealth of Nations too is a historical work as much as an economic one) and as Knut Haakonsen has argued, Smith and other enlightened theorists drew mostly upon natural law arguments provided by Pufendorf and Grotius not upon economics.

The point of Smith's arguments was that they occurred at the same time of course as the settlement of the union. Smith lived in a late eighteenth century that was dominated in Scotland by the consequences of the union of 1707 and the failed Stuart rebellion of 1745. After 1745 (when Smith was 22 and David Hume was 33) the British government took action to repress the feudal jurisdictions that had dominated the highlands. Such action was approved of by many members of the Scottish elite- despite the fact that it in seomed to violate some of the terms of the act of union. George Wallace for example heralded the fall of heritable jurisdictions as the demise of 'tyrannical principles' within the law in 1760. Lord Bankton agreed: such reforms placed the Scots upon the same 'foot of liberty and independency with the other people of Britain'. Feudalism was meeting its demise and being replaced by a Britannic equality before the law.

This tied into an argument, expressed by Lord Kames amongst others, that actually Scots and English law derived from the same source- a fusion of Saxon and Norman custom mixed by a series of leglislators from William the Conqueror and David I on. Kames suggested that differences between English and Scottish law 'illustrate each other by their opposition'. Comparative study of their institutions further the notion that Scottish society needed releasing from feudalist law: Sir John Dalrymple argued that 'in the declensions of almost every part of the feudal system the English have gone before us'. What Colin Kidd suggests based on this evidence is that what you have is a sense in the eighteenth century of the reform of Scots law being the same as the anglicisation of Scots law: union therefore being a mechanism whereby Scots commoners were freed from the jurisdiction of Scots nobles. In a sense just as the SNP today argue that allegiance to Europe is a way of escaping the bullying English, so in the 18th Century Scottish lawyers and theorists argued that anglicisation was a way of escaping the bullying authority of local gentry and aristocrats.

There is a further point here: to resume where we started with Adam Smith and David Hume. Part of the strength of their argument and the sense of where it goes must derive from this unique opportunity. 18th Century Scotland was a place where two legal systems existed in the same state- Scots would be familiar with their own law but also had the right to appeal such judgements to the English House of Lords. (This appellate issue is one of the central interesting anomalies within the Union.) As historians we often underrate the affect of context on thinkers- living in a fused state makes comparison and contrast a much more vivid enterprise (there is a reason why histories of Europe have become much more subtle over the last half century). The unique political community that Smith and Hume were part of must have made arguments about the historicity of law and its connection to social structure much more important and vivid not merely as theoretical constructs but as a reality.

This comparative impulse is one of the reasons that Hume called Scotland the 'historical nation': Scotland was the historical nation because the process of union that it was involved in confronted Scots with issues about the past and future, the stratification of history and the relationship between law and society in a way that other citizens of other societies (including the English) were not so immediatly confronted.