Which Comes First, Judges or the Law?
Eighteenth century ideas about ancient 'natural histories' of governance..
The Good Judges by James Ensor, Brussels 1891
EIGHTEENTH CENTURY EXHIBIT
Istvan Hont, Politics in Commercial Society, edited by Béla Kapossy and Michael Sonenscher, Harvard UP 2015
Excerpts from Chapter Three
Which Comes First, Judges or the Law?
….
According to both Mandeville and Rousseau, those laws of justice, which maintain the present inequality amongst mankind, were originally the inventions of the cunning and the powerful, in order to maintain or to acquire an unnatural and unjust superiority over the rest of their fellow-creatures. [Adam Smith in a letter]
… For Smith, the issue was not simply to restate the fact that justice and government were artificial … but to construct a natural history of both justice and government. …
… On this issue, there was a stark contrast between some of Smith’s and some of Rousseau’s fundamental statements. Let’s take the Discourse on the Origin of Inequality first. Having described the origins of property and the social contract, Rousseau argued that “nascent Government had no constant and regular form”:
Society consisted of but a few general conventions which all individuals pledged to observe, and of which the Community made itself guarantor toward each one of them. Experience had to show how weak such a constitution was, and how easily offenders could escape conviction or punishment for wrongs of which the public alone was to be both witness and judge; the law had to be eluded in a thousand ways, inconveniences and disorders had to keep multiplying, before it finally occurred to them to entrust the dangerous custody of the public authority to private individuals, and to commit to Magistrates the task of getting the People’s deliberations heeded. [Jean-Jacques Rousseau, “Second Discourse,” in The Discourses and Other Early Political Writings, ed. V. Gourevitch (Cambridge: Cambridge University Press, 1997]
This all sounds familiar. There were man-made, not natural, laws at the earliest stage of society, and when the law was not observed, then and only then was there a further need to create a legal authority in society to enforce the law. Rousseau was adamant that this was the right way of sequencing the history of the human creation of justice: first there was the law and only afterwards the emergence of judges or magistrates. “For,” he wrote in the second Discourse, “to say that the Chiefs were chosen before the confederation was established, and that the Ministers of the Laws existed before the Laws themselves, is an assumption not worthy of serious refutation.” [ibid.]
Smith took a diametrically opposite view. In his Lectures on Jurisprudence, and also in Book V of The Wealth of Nations … he discussed the huge opposition to the introduction of Roman courts in conquered German provinces:
The courts of justice when established appear to a rude people to have an authority altogether insufferable; and at the time when property is considerably advanced judges cannot be wanted. The judge is necessary and yet is of all things the most terrible. What shall be done in this case? [Adam Smith, Lectures on Jurisprudence, in The Glasgow Edition of the Works and Correspondence of Adam Smith:, ed. R. L. Meek, D. D. Raphael, and P. G. Stein (Oxford: Oxford University Press, 1978)
Although it might at first seem that Smith took a line very similar to Rousseau’s, he in fact advanced the opposite theory. These societies created the first judges out of necessity. But the power of judges was resented and feared, and a remedy had to be found for this fear. Judges needed to be brought under control and their activities regularized by codifying the rules that the judges claimed they were interpreting. “This was the case at Athens, Sparta, and other places,” Smith wrote, “where the people demanded laws to regulate the conduct of the judge, for when it is known in what manner he is to proceed the terror will be in a great measure removed.” He drew the lesson from this in direct opposition to Rousseau. “Laws,” he declared,
.. are in this manner posterior to the establishment of judges. At the first establishment of judges there are no laws; every one trusts to the natural feeling of justice he has in his own breast and expects to find in others. Were laws to be established in the beginnings of society prior to the judges, they would then be a restraint upon liberty, but when established after them they extent and secure it, as they do not ascertain or restrain the actions of private persons so much as the power and conduct of the judge over the people. [ibid.]
The disagreement with Rousseau in this case is incontrovertible, and I assume that here Smith was in fact consciously arguing against Rousseau. The issue, as Smith clearly stated in this passage, was the interpretation of liberty. Although they might not have had sharply diverging views on liberty, it seems that they definitely disagreed on the issue of how liberty and hence political society were created. Their histories of modern liberty and law diverged, and this eventually led to divergent political views. Since they shared the same starting point — the lack of natural sociability— their divergent histories of the origin of law led to divergent visions of politics in commercial society. Where did this divergence originate from, and what did it amount to?
On the very same page that Rousseau announced his views about the proper sequencing of the origin of judges and the law, he explained that the people decided to appoint judges and chieftains to enhance their own liberty, and not in order to enter into slavery or dependence. This was Smith’s point too. Nonetheless, they saw two crucial issues differently. The first issue was their understanding of the nature of conventions and their histories. In other words, they differed in their ideas concerning the concept of a social contract. …
… (We should note that “history” here refers to theoretical history — that is, conceptual sequencing along a timeline — and hence the importance of the debate between Rousseau and Smith about the proper sequencing of the emergence of judges and the law.) …
… It was at this juncture that Rousseau and Smith diverged. When Rousseau explained the creation of chiefs and judges, he pointed out that the people chose superiors for themselves in order to gain something from this exchange rather than accept that they were losers. In the case of property, Rousseau could not see what sort of advantage was present for the people. For property divisions to survive for a longer period, voluntary acceptance was needed. Private property could not be stabilized if it were simply an injustice foisted on the people by superior force. This meant that Rousseau had to try another route. But voluntary acceptance of such an unfavorable condition for the majority was possible only if the people were duped by seductive rhetoric. Private property as a legalized system was born of a confidence trick, and this fact was bound to influence the growth of society negatively forever. Inequality of private property had a tendency, Rousseau claimed, to grow and disrupt any political arrangements based on it. Rousseau painted a bleak future of oscillation between despotism and egalitarianism, creating a reiterated cycle, or gyration (as the eighteenth century termed it), of political instability. This was not Smith’s view.
Smith disagreed not because he was starry-eyed about private property and inequality. … He accepted, however, that the system of commercial society had a long-term beneficial tendency, creating more and more equality and material well-being for the majority. This was clearly not Rousseau’s view in the Discourse on the Origin of Inequality. … [Nevertheless] both Rousseau and Smith created a natural history of justice and society to explain the origins of law and politics. …
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