Adam Smith and The Law

Abstract

The law is one of the main subjects in Adam Smith’s studies. He deals with it in the Lectures of Jurisprudence (LJ) and in the Wealth of the Nations (WN) and his ethical and philosophical premises are exposed in the Theory of Moral Sentiments (TMS). This interest in law is consistent with enlightenment culture which aspired to elaborate a great Science of Legislation in order to have enough knowledge to reform society and replace the Ancien Régime institutions with new ones able to support the course of progress and improve the life of the people. Yet, Smithian thought, while sharing the cultural aim of his age, is divergent from Juridical Enlightenment in many ways. I explain this divergence by going back to the deep epistemological and analytical differences between the Scottish and European Enlightenment, showing how Smith’s approach to the doctrine of natural law is antithetic to the utilitarian and contractualistic approaches typical of other enlightenment schools. Indeed, if Smith develops a theory of law founded on economic thesis, it is very discordant with an efficiency-inspired economic analysis of law, which has its early expression in the works of exponents of Juridical Enlightenment, such as Cesare Beccaria, Gaetano Filangieri, and Jeremy Bentham. In the next section, I describe Smith’s concepts of law and rights in the works of Jurisprudence. The second section is devoted to the role of justice, since its enforcement is considered the legislator’s main duty. In the following section I compare the Smithian theory of law to the ideas of Juridical Enlightenment. The final section argues why Smith’s reflection on law is not to be considered as a precedent of economic analysis of law. A short conclusion closes this chapter.