Adam Smith and Roman servitudes

Metzger, E. (2004) Adam Smith and Roman servitudes. Tijdschrift voor Rechtsgeschiedenis: Legal History Review, 72(3-4), pp. 327-357.

Abstract

This article discusses Adam Smith's historical jurisprudence, and his efforts to produce an explanation for why certain civilizations produce certain laws. Smith's historical jurisprudence is based on the idea that a civilization provides for its subsistence in a certain way, and that the way it does so provokes the creation of certain legal ideas. Smith proceeds empirically, rejecting the rationalizations of his natural law predecessors in favour of data-gathering and causative explanations. One of his principal sources of data was Roman law: the literature is rich with examples. But the 'data' comes with a high price. There is a great quantity of law described in the Roman sources, and not all of that data immediately fits Smith's mode-of-subsistence theory. Smith sometimes finds himself having to explain why certain Roman laws, which on first blush contradict him, do in fact support his theory on closer examination. His treatment of Roman servitudes is an example of this struggle. These difficulties notwithstanding, it is not a fair conclusion that Smith's historical jurisprudence was 'unworkable'. A fairer conclusion is that completing his task with the aid of Roman law would have been an enormously time-consuming task, though possible. This essay provides the text and translation of Samuel L.B. von Cocceji, Introductio ad Henrici L. B. Cocceii Grotium Illustratum, continens dissertationes prooemiales, Halle 1748, Diss. XII ('Systema de iustitia naturali et romana'), 4.3.6 (ss. 302-305).

• Item Type: Articles
• Keywords: Adam Smith, natural jurisprudence, historical jurisprudence, Roman law, Cocceius, Cocceji.
• Status: Published
• Refereed: Yes
• Glasgow Author(s) Enlighten ID: Metzger, Professor Ernest
• Authors: Metzger, E.
• Subjects: B Philosophy. Psychology. Religion > B Philosophy (General); K Law > K Law (General)
• College/School: College of Social Sciences > School of Law
• Journal Name: Tijdschrift voor Rechtsgeschiedenis: Legal History Review
• ISSN: 0040-7585
• Copyright Holders: Copyright © 2004 Brill
• First Published: First published in Tijdschrift voor Rechtsgeschiedenis 72(3-4):327-357
• Publisher Policy: Reproduced in accordance with the copyright policy of the publisher