Comments by Andrew Humphries on Dan Klein's Four Set's of Nonconflicting Rules

The third commentary on Dan Klein’s Four Sets of Nonconflicting Rules (lead essay here, first commentary here, second commentary here) comes from Andrew G. Humphries, a Visiting Assistant Professor of Economics at New College of Florida. Andrew defended his dissertation on Smith and Tocqueville at GMU in the spring of 2021. He earned his MA in Economics from George Mason, his M.Ed. from Endicott College, and his BA in Liberal Arts from St. John’s College.

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Dan’s piece raises several questions. In this response, I address the following for those who might not be familiar with Smith.

1. What might properly be called natural jurisprudence for Adam Smith? 

2. What is included in commutative justice (CJ) for Smith and how does it relate to natural jurisprudence?

At the end of Theory of Moral Sentiments (TMS 340–41), Adam Smith promised a work offering a “theory of the general principles which ought to run through and be the foundation of the laws of all nations.” The work would not talk general principles only, but help provide “an enumeration of the particular rules of justice.” He thought the subject matter of such a work “might properly be called natural jurisprudence”.

Smith’s projected work would have been an extension of the modern natural law tradition taught at Glasgow by Carmichael and Hutcheson stemming from Grotius and Pufendorf. He identifies Grotius as the person who first attempted to give a complete system of such principles and who remained something of a standard (341–342).

My understanding of what Smith intended in his projected work has two parts. First, he would have tried to rework Grotius’ system on his new sentimental basis laid out in his TMS, elaborating and applying that basis in more detail. Second, John Millar claimed that Smith also intended to follow Montesquieu in the work, “endeavouring to trace the gradual progress of jurisprudence, both public and private, from the rudest to the most refined ages, and to point out the effects of those arts which contribute to subsistence, and to the accumulation of property, in producing correspondent improvements or alterations in law and government” (LJ introduction 3). 

The involvement of both natural and conventional elements in Smith’s projected work raises the question of the relation of all of the sets of rules that Dan lists in his piece and how they relate to Smithian natural jurisprudence.

What is natural about Smith’s natural jurisprudence? 

Smith’s natural jurisprudence includes two elements that can be said to be natural: first, the necessary and, secondly, innate propensities.

The necessary comes in with what Dan refers to in his piece as natural conventions. The idea is exposited in work Dan has done with Erik Matson (Matson and Klein 2022; Klein and Matson 2022).

I totally concur with Dan & Erik’s natural convention. The natural-convention idea has roots in Grotius’s and Pufendorf’s view that man is in need of society to survive and thrive and that there are certain conditions that must be met to enable thriving society, making these conditions naturally morally imperative. Instrumental reasoning would thus come to commend these conditions to us.

My reading is that the natural in Smith’s natural jurisprudence also includes innate tendencies, including our propensities to sympathize, spectate, reason, and form rule-like judgments and resolutions for ourselves. Our natural propensities allow us to adopt and build on a culture into which we are born, including the language and moral sentiments of our society. Also included are some very basic “natural sense of merit and propriety” that direct the development of our moral sentiments (TMS 159.8, Schliesser 2011). Smith thinks we are naturally interested in the welfare of others in a non-self-interested or non-calculative way, for instance, that we are naturally repulsed by treachery and murder, and that we tend to care about how others think of us and want to be lovely as well as loved. Smith would, therefore, side with those who see society as arising out of our natural social propensities, in conjunction with evolving understandings of what is useful to society.

Smith is a little ambiguous about the role that final ends play in his sense of human nature. He rejects the views that we act well and judge morally either because we innately possess a fully specified sense of what is right and wrong or because such fitness can be formed by reason and deduction. Rather, man is steered by natural propensities and evolutionary pressures. But Smith leaves the door open to an invisible hand of the Author of Nature in achieving good ends by means of these  efficient causes (TMS 87.5).

What role, then, does the conventional play for Smith? 

General precepts and innate propensities are insufficient to meet the need of bringing different people’s sentiments into harmony. 

Once one has a certain level of scarcity in material objects, and size and complexity in society, some system of extending mine and thine beyond self-ownership and immediate possession becomes absolutely necessary, though the specifics of what is mine and what is thine, and what it means to “mess with” those objects, can vary with time and place. People naturally tend to feel resentment and are tempted by violence when something essential to their welfare is willfully threatened by others. It becomes necessary in different stages of society to make the various precepts of basic sociality into definite rules of justice that people can go along with. 

If everyone knew what “the law” was in precise terms and how it applied in varied and complex conditions, it wouldn’t matter if it had been consciously set down by a jural superior or not. Long practice is understood to be a source of law. It has been a practical necessity, however, to have authoritative institutions make what the rules are more focal by recognizing, sustaining, codifying, or enacting what the rules are. An ideal or utopian natural law would be a law that defined mine and thine and included the institutional knowledge and dispositions for a distributed enforcement of norms against people who were confused or too selfish to respect the rules. Practical natural law recognizes that authority is a practical necessity to fulfill the purposes of law.  

For Smith, nature hasn’t left man to figure out such moral, jural, and political theory by cogitation. Just as nature gives sentiments of resentment at injury and the capacity to bring resentment under control in the form of rules of justice, it has placed in man the tendency to submit to established authorities.

There is something in Smith’s works that I find slightly ambiguous. In TMS Smith defines CJ as “abstaining from what is another’s, and in doing voluntarily whatever we can with propriety be forced to do” (TMS 269.10). He elsewhere says, however, that a jural superior may sometimes “with universal approbation oblige those under his jurisdiction to behave…with a certain degree of propriety” (TMS 81.8). Surely what one can “with universal approbation” be obliged to do by the state would be among the things that “we can with propriety be forced to do.” But Smith counts as “the most sacred laws of” CJ only violations of person, property, and promises due (Bonica & Klein 2021). And in the 81.8 passage just cited, Smith clearly contrasts “preserving the public peace by restraining injustice” or by prohibiting “mutual injuries among fellow citizens" with this additional power of the sovereign. 

In the lecture notes that have come down to us from Smith’s Lectures of Jurisprudence (LJ), Smith uses the term justice to apply to duties not only pertaining to the most sacred private rights of property and promises-due among equals, but also to rights and duties of citizenship and office arising from a civil constitution (e.g., LJ(a) 8). Smith thinks certain duties subjects owe to their jural superiors, such as statutes defining treason, can be made rather precise and accurate, as when he writes of the relative precision of the “part of publick law which comprehends the duties of subjects to their sovereigns” (LJ(A) 311; see also 291–295, 545). They can, (I think) therefore, be counted in commutative justice.

Adventitious processes such as long accepted practices and the acts of sovereigns play a role in defining CJ. In human affairs, what is necessary (or what tends to be necessary), and therefore what creates perfect rights and duties that ought to be enforced by positive law (as opposed to what tends to the comfort and ornament of society), is a matter of judgment. But once laid down by traditions or by a jural superior, particular rules can become focal, precise, and accurate and are the manifestation of what is thought to be indispensable. It seems to me that, therefore, such rules, insofar as they are generally taken up, would become included in CJ for all practical purposes, if not counted among the most sacred rights of justice. 

Actual government laws, CJ, and what ought to be government laws (Dan’s nonconflicting-rules sets 1, 2, & 4) are, thusly, all entangled for real humans.

There are limits on the merely conventional, however. Tradition and the sovereign can draw or redraw these lines of duty and perfect rights to some degree, if they arise from or don’t stray too far from people’s natural sentiments and the necessity behind natural conventions. Smith’s example of the magistrate commanding good offices on TMS 81 says that the thing commanded must be indifferent or must be seen as otherwise in accord with imperfect duties of proper beneficence in the culture (questions of ethics writ large, Dan’s third nonconflicting-rules set). This suggests that the sovereign can’t or shouldn’t command things that are contrary to proper beneficence. It would be contrary to the natural foundations of law everywhere, for example, for the sovereign to command murder or actions contrary to sacred rules of morality, such as hospitality between parent and child. Notice, too, that commands of good offices or proper beneficence tend by nature to be the kind of thing that is hard to define precisely and accurately. They deal with particulars that are tacit and innumerable and people disagree about them. And the more one adds 10,000 commandments to create precision and accuracy, the more one replaces a shared sense of order and a coherent view of when force should and should not be used with arbitrary tyrannical force. Taken too far, therefore, deviating from people’s natural and moral sentiments of ideal justice, based essentially in sentiments around mine and thine, the jural power destroys liberty, security, justice, and with justice, society itself.

I agree with Dan wholeheartedly, therefore, that rules of mine and thine among equals, arising out of self-ownership, propertization, and promise-keeping norms, the most sacred rules of commutative justice, are focal for defining justice in a precise and accurate way, and by that route define the core sense of liberty.

If the purpose of law is to coordinate human sentiments to generate and secure natural goods expressed through and arising from society, certain excesses of governments would be contrary to the purpose and essence of law. We can thus think about there being a higher “law” that is in some way a standard for judging positive law.

In LJ Smith discusses rules pertaining to the duties of jural superiors to their subjects and to other sovereigns, although these rules remain loose, vague, and indeterminate, and, therefore, more like ethics than jurisprudence. Grotius tried to establish the laws of war and peace in the mold of jurisprudence rather than of ethics, and Smith is somewhat critical of the effort as a form of casuistry (LJ(B) 397). And yet Smith discusses these issues in LJ in terms of there being ideal, though imperfectly focal, ideas of justice that an ideal impartial spectator would know. I think Smith discusses these issues in LJ both to clarify the limits of precise and accurate CJ and to illustrate how using CJ by analogy can show how we all would think about the questions of revolution, war, and peace as matters of justice, if we could see them with full impartiality and accuracy.. The way we naturally form moral judgments suggests that there is, in principle, a God’s eye view of matters of resistance and revolution, even if different people’s views of this overall view can’t practically be brought into harmony. There is, then, something that we appeal to in our hearts and judgments which we take to be an ideal rule we ought all to follow that would specify the issue, as seen by an ideal impartial spectator. The judgment of such a spectator would be, to those who saw the wisdom of his judgment correctly, the law on the question. Issues of revolution can only be left to an appeal to heaven (LJ(B) 433).

Do these moral principles and precepts of a higher law found in conscience and reason have to be laid down by a lawful, providential being to be called “law”?

It might be interesting to point out that the word sanction is a contranym, having somewhat opposite meanings. The root of the word is related to sanctify, the idea of something being recognized as or being made sacred. Sanctity is holiness, goodness, purity, godliness. Sanction can either mean,  “a provision of a law which enforces obedience through rewards or penalties” or to express or confer “authoritative permission” or approval.

I don’t see the force of law arising from the will of a superior accompanied by rewards and punishments. Rather, the force of law arises from understanding its goodness. We are to obey or be in accord with good, not out of fear or deference to a tyrannical superior who threatens us, but because good is good. To see and understand good is to want it, but to be ignorant of good or to turn away from good naturally causes suffering. Good sanctions good. 

Smith is correct when he says that the idea of law in human affairs that is most focal are “those general rules which the sovereign lays down to direct the conduct of his subjects” (TMS 166.6). But the general rules of morality held in conscience have “authority” and “are justly regarded as the Laws of the Deity” (TMS 161). Our understanding of the natural law is always our highest representation of what we think Good, Truth, the source of Beatitude in the highest sense, dictates to be desirable, permissible, and imperative. We can’t violate conscience without doing violence to our highest sense of the sacred.

With Dan, I think that the rules of mine and thine among equals, along with the rules spelling out “messing with” those objects—that is, the most sacred rules of commutative justice—constitute a touchstone for something we may call natural jurisprudence. But sentiments and rules regarding authority and civic offices must also be involved. Like his ethics, Smith’s natural jurisprudence would use (1) an explanation of the way things are based on a description of necessities and tendencies in human nature as laid out in TMS and (2) a description of the varied expressions of these principles as manifest under different historical conditions. These principles would be a source not only of description but of refinement and critique of positive laws—a description of the way things are and ought to be.

References:

Bonica, Mark J, Daniel B. Klein. 2021. Adam Smith on Reputation, Commutative Justice, and Defamation Laws. Journal of Economic Behavior & Organization 184: 788–803. Link

Klein, Daniel B. and Erik W. Matson. 2022. Nature, Convention, and Natural Convention. Just Sentiments, Liberty Fund’s Adam Smith Works, April 27. Link

Matson, Erik W. and Daniel B. Klein. 2022. Convention without Convening, Constitutional Political Economy 33: 1–24. Link

Schliesser, Eric. 2011. Reading Adam Smith after Darwin: On the Evolution of Propensities, Institutions, and Sentiments. Journal of Economic Behavior & Organization, 77 (1): 14–22.

Smith, Adam. 1976 [1790]. The Theory of Moral Sentiments. Edited by D.D. Raphael & A.L. Macfie, Liberty Fund.

Smith, Adam. 1978. Lectures on Jurisprudence. Edited by R.L. Meek, D.D. Raphael, & P.G. Stein, Liberty Fund.