After Smith gave some basic insight into what judges do, he had to tackle where they came from.
In Smith’s law lectures in Scotland in the 1760s, he outlined a theory of the emergence of the judiciary. He defined jurisprudence as the theory of rules by which governments “ought” to be directed, and it provides us tools to see how different systems of government emerged in different countries, and how reasonable those systems were. There were four aspects by which governments could be evaluated: 1) how well they maintained justice, i.e. protected property and maintained internal peace; 2) their success in utilizing police powers, or promoting internal commerce; 3) their ability to raise revenue, and 4) their success in defense. (Smith, 1763, at 47-48)
The aim of justice is to maintain each individual free from injury, i.e. the encroachment of others on his “perfect rights.” Injury could be committed to a man’s person, reputation or estate, and through direct hurt or a restraint on his liberty. (Smith, 1763, at 49-50) Man’s rights to protect his reputation, or be free from physical injury or restraint on liberty, are “natural rights.” But his rights of estate are created through civilizational development. The estate rights consist of real rights (or rights in things, also known as property, servitude, pledge and inheritance) and personal rights (or rights from people, known as contract or restitution). (Smith, 1763, at 50-53)
Most of these estate rights do not exist at the hunter level of civilization. Indeed, it is only with the shepherd level of civilization that the shepherd collective allows individual herdsmen to consider a hut his property, and the notions of servitudes, pledges and personal rights are created by the sovereign. While this would seem to demonstrate the state’s precedence and importance over individual contracting and property, the state is not all powerful. Indeed, in early courts, governments couldn’t compel the performance of a contract, only the payment of damages. (Smith, 1763, at 59, 69, 99, 103, and 113)
After a lengthy discourse on aspects of common law rules (marriage, contracts, etc.), Smith proceeds to examine the four stages of civilization – hunters, shepherds, agriculture and commerce – and different countries by reference to the type of government present (monarchical, republican-aristocratic, or republican-democratic). These types can be in turn distinguished by whether the judicial (dispute settlement), executive (war making) and legislative (law making) are concentrated in one person (monarchy), few people (republican-aristocratic), or all people (republican-democratic). (Smith, 1763, at 189)
Hunters have a sparse form of democratic government: dispute settlement (through death or exile) and war-making rest with the community as a whole. Legislatures do not exist, because no one would feel compelled to follow the rules. Some individuals have charismatic influence in the community, but not disproportionate power. Under the shepherd period, certain individuals begin to acquire disproportionate property. With this, inequality grows, and dependence on wealthy shepherds begins. While disputes and war-making would still be resolved by the collective, these powerful shepherds have greater-than-average sway in dispute deliberations, which they could pass to their children. But the form of government was still fundamentally democratic, Smith argues somewhat non-convincingly,[i] as the people retained the power to exile or kill. (Smith, 1763, at 189-192)
With the move into agriculture and commerce, there is greater division of labor. More commerce means more reliance on contracts and marriage agreements, but it also includes the outsourcing of public affairs to specialized groups of people. These people take on the dispute settlement function, and with this, their power exponentially grows, because disputants pay tribute to the judge. However, Smith maintains that “the people however still retained in most countries the power of appeal to themselves in all matters of moment.” Indeed, government was still seen as fundamentally weak, because disputants in court could continue to choose duels over submission to state authority. Accordingly, there are four stages of increased judicial power: 1) influential third friend settling disputes between two others; 2) an arbitrator with authority to impose gentle penalties; 3) a court that can meet out punishment for the most atrocious crimes through expelling; and 4) the modern judicial system. (Smith, 1763, at 193, 197-199)
However, the increase in arts and commerce sapped the civic engagement of the population, which led to the descent into feudalism. At this point, Smith moves beyond the idealized civilizational forms of the earlier lectures, and into the emergence of concrete judicial institutions in England. In the early medieval era, Saxon counties (organized through families in the area) resolved disputes. The centrally organized Saxon Witenagemot (followed by the Norman curia regis and eventually the King’s Bench) was the body to which appeals could be made outside of the county system, but only due to denial of justice or excessive delays of the latter. Eventually, however, the central government’s wariness of upsetting local feudal lords led to non-intervention in the system, and the decline of what Smith called the “democraticall courts.” (Smith, 1763, at 225-234)
Over the next few centuries after the Norman conquest, the curia regis split into multiple parts (Court of Common Pleas, Kings Bench, Exchequer and Court of Chancery), which Smith saw as an intentional strategy on the part of monarchs like Edward I to keep the judiciary weak. Smith appeared conflicted with regard to these developments. On the one hand, the Court of Chancery – the newest court – appeared to help innovation by allowing for the enforcement of performance of contracts and the transference of property, neither of which had been allowed under the common law. Yet Smith also regards the unchecked power of judges to innovate as a potential threat to liberty.
Smith saw several institutional factors as checks on this threat to liberty: the requirement for adherence to precedent and tradition, the rivalry between courts, the use of juries (themselves checked by requirements of juror unanimity and allowances for disqualification of jurors). At the same time, the king’s ability to corrupt jurors was limited by lifetime appointments, and out of judges’ own worry about maintaining a good reputation. Finally, Smith argued that legislatures and statutory law in commercial civilization arise in part because of the need to create additional checks on judges. (Smith, 1763, at 245-256, 276-277, 283)
Finally,Smith’s explanation of why judgments are obeyed might be derived from his overall theory of social cohesion. Contrary to social contractarian approaches,[ii] Smith believed that people join “civil society” because of two reasons: respect for authority, and because of the utility of doing so. As to the first, the poor and weak look up to the wealthy and strong, who are seen as happier. Likewise, older people may be respected on the basis of their life experience. The rituals associated with courts and the advanced age of many justices may therefore lend to their legitimacy. Indeed, Smith wrote that continuity rather than innovation in justice was desirable: “All new courts disdain to follow the rules that were formerly established. All new courts are a great evil, because their power at first is not precisely determined and therefore their decisions must be loose and inacurrate.” The utility reason might be described in contemporary terms as a network or imitation effect, whereby individuals’ compliance encourages others to comply: the fragility of property rights per se requires optimal compliance, and people in society in pitch in to make the law more effective. (Smith, 1763, at 280-284).
Figure 2 outlines how judicial development tracks civilizational development in Smith’s law lectures. While in parts of Smith’s writing, modern judging and the state seems to lag the development of commerce, Smith is also clear that modern judging only follows the creation of property, which is given through the coercive power of the collective. In addition to creating estate rights, the modern state later also fills in the gaps, as evidenced by the creation of Court of Chancery. Smith does not appear to believe that there is any automatic tendency to create a certain type of government, and notes that democracy both preceded and followed periods of concentrated power.
[i] On this point, Smith is inconsistent. He argues that inequality during the shepherd phase creates a need for specialized courts, and that “laws and governments may be considered in this and indeed in every case as a combination of rich to oppress the poor, and preserve to themselves the inequality of the goods which would otherwise be soon destroyed by the attacks of the poor, who if not hindered by the government would soon reduce the others to an equality with themselves by open violence. The government and laws hinder the poor from ever acquiring the wealth by violence which they would otherwise exert on the rich…” He then immediately pivots to a point about government accordingly needing to maintain the buy-in of the poor through democracy. (Smith, 1763, at 196) But if the inequality is so injurious to the poor, why would they consent through government to oppress themselves? The mechanism (which presumably rests in some form of false consciousness or manipulation) is not outlined.
[ii] Unlike other scholars of his time, Smith did not believe that government derives from a social contract, for three reasons. First, contract law as such existed primarily in England, but governments existed everywhere. Even supposing the existence of a contract at some point, nothing would bind the descendants of the parties to this contract. Finally, as for the theory that people agree implicitly to be bound by the social contract through not leaving the country, Smith noted that governments at the time restricted exit by law.