How the Scots Invented the Modern World (15 page)

From the point of view of his researches, however, these convivial at-home evenings were not lost time. Kames liked to mix food and drink, including prodigious quantities of claret, with serious discussion of philosophical and legal issues. Kames’s love of good company set the style and tone of Edinburgh’s intellectual life for nearly a century, while his guests included a series of young men of genius who would dominate the Scottish Enlightenment.

One of these was John Millar, who served as tutor to Kames’s son, then became the University of Glasgow’s first Professor of Civil Law. As a teacher and scholar, Millar would virtually invent modern political history. Another was Adam Smith, who came to Edinburgh in 1746 looking for an academic job. Because none was available, Kames arranged for him to deliver a series of public lectures on rhetoric, literature, and the subject dear to Kames’s heart, civil jurisprudence. Those lectures, delivered between 1748 and 1751, would become the foundation for the
Wealth of Nations.

A third was James Boswell, the son of Kames’s colleague on the Court of Session bench, Lord Auchinleck. The headstrong James quarreled frequently with his cold, reproachful father, and looked to the rough but affectionate Kames as his intermediary when things were going badly at home. After “Jamie” Boswell passed his exam to become an advocate in late July 1762, Kames brought him along on a tour of Scotland’s Border country, not far from his Berwickshire estate. Boswell called Kames a man of “uncommon genius” as well as a “great character.” Kames was in many ways the forerunner of the more famous father figure Boswell met when he moved to London, Samuel Johnson. In fact, Boswell even planned a biography of Kames similar to the one he did for Johnson. He never finished it—sadly, since it might have made the brilliant and sardonic judge from Berwickshire as familiar to modern readers as the learned doctor from Lichfield.

However, the favorite among Kames’s young protégés was David Hume. They were distant relations—different branches of the great Border family of Home—and neighbors. The house at Kames was only ten miles from Ninewells, where David Hume had grown up. David’s father died when he was a child, so Kames again stepped in as a father figure and intermediary. He reassured David’s shocked mother and relations when the headstrong boy decided to give up the study of law and pursue philosophy instead.

Hume called Kames “the best friend I ever possessed” but also “the most arrogant man in the world.” He described him as “an iron mind in an iron body,” but noted: “He is fond of young people, of instructing them and dictating to them; but whenever they come up and have a mind of their own, he quarrels with them.” In fact, Hume and Kames quarreled constantly, especially on matters of religion. David Hume had no religion. Kames was an Episcopalian (rare in Edinburgh, but not in landed upper-class Scottish circles) and detested unbelief. Kames even wrote his
Essays on the Principles of Morality and Natural Religion
as a refutation of Hume—only to become the target of the same vote of censure that hard-liners in the Kirk’s General Assembly were bringing against Hume!
⁷

As it happened, the vote against Hume failed. But it drove home the point that in the larger scheme of things, mentor and protégé were more alike than different. Both offended conventional opinion by pointing out that morality, like society itself, arose from human aspirations rather than divine ones—in Hume’s words, from “mere human contrivances for the interest of society.” Far more than Hutcheson, they worked to detach our understanding of human nature from its traditional theological moorings. Both saw human beings as the products of their environment, whether one was talking about the individual, as Hume did, or the collectivity, which was Kames’s particular focus. They
relativized
man, in the sense that they made who we are dependent to some degree on our experience in a particular time and place, rather than solely on some inborn quality or sense.

This sense of context would become central to the Scottish view of history, anthropology, psychology, and economics. From this perspective, Hume would have to agree with Adam Smith: “We must every one of us acknowledge Kames for our master.”

Kames’s stolen hours of research, reading, and debate first bore fruit in 1732, when he published his
Essays Upon Several Subjects in Law.
He followed this with a second collection of essays on legal history in 1747, and then
Essays Upon the Principles of Morality and Natural Religion
in 1751. Together with
Historical Law Tracts
in 1758, they opened a new chapter not only in the study of comparative law, but also in the study of human history.

The issue Kames raised was deceptively simple: Why do laws exist? What makes it possible for human beings not only to institute rules and regulations for their conduct, but also to agree to abide by them?

The answer he gave was a classic one—but now with an extra twist. Men institute laws, he concluded, in order to protect property. This was self-evident to the heir to a Berwickshire estate. But it was also rooted in every discussion of natural and civil law. A sense of property marked the starting line for all social arrangements. Any child knows that there are certain toys that belong to him, and him alone, and ones that belong to you. Roman lawyers called this a sense of
meum et tuum,
the sense that “that is yours and this is mine.” We can share, and I can even pretend for a time that the tricycle I ride is really
my
tricycle. But at the end of the day, when accounts are settled, things must be returned to their proper owners—otherwise there come tears and recriminations, a sure sign that a fundamental instinct for fairness, a sense of justice, has been violated.

“That is yours and this is mine.” And let’s keep it that way. In other words, I’ll respect yours, if you respect mine. That is why we create society, and with it government, in the first place: so that each person can enjoy what he or she has appropriated by his or her own efforts, without fear of hin-drance. “It is . . . a principle of the law of nature,” wrote Kames, “and essential to the well-being of society that men be secured in their possessions honestly acquired.”

Standing by itself, this was not a very original observation. John Locke, Samuel Pufendorf, even Thomas Hobbes would have said the same thing. But Kames added two points that made his readers sit up and take notice.

The first was that while Francis Hutcheson was insisting that men form governments in order to pursue the common good, Kames’s emphasis on this self-interested sense of property introduced a note of realism. Kames was quite willing to believe in the notion of an innate moral sense, and man’s natural sociability. His
Essays on the Principles of
Morality and Natural Religion
endorsed much of Hutcheson’s point of view. It even contains Hutchesonian phrases such as, “Nature, which has designed us for society, has connected us strongly together by a participation [in] the joys and miseries of our fellow creatures.” But life as an attorney had taught Kames a more realistic, if not cynical, view. Kames recognized that human beings need a more compelling reason to draw together into a binding community, and to surrender their personal freedom to others.

This is what our desire to protect our property, what we have worked for and set aside for ourselves, forces us to do. It forces us to take the plunge, to enter into this network of rights, duties, and obligations with other people, because without it we will never feel secure about our property. “For without property,” Kames pointed out, “labour and industry [were] in vain.”

If Hutcheson was arguing that the most important instinct human beings have in common is their moral sense, Kames was saying that it is their sense of property and desire to own things. “Man is disposed by nature to appropriate”—one reason human beings are perennially adverse to common ownership of goods. It is not enough just to have goods; they must be
my
goods. Property is more than just material objects—it is a part of my sense of self. Without it, I am missing an important dimension of my personality, projected outward into the world. In fact, in eighteenth-century English, the language of Kames’s works,
property
meant the same as
propriety
: those things that are
proper
to me, and to me alone. To Kames and his followers, including Hume and Adam Smith, to own
things
is in fact to own
myself.
Property makes me a whole and complete human being.

So it is not surprising, then, that human beings make the desire for property the guiding force in their lives, and devote so much time and energy to getting it, holding it, increasing it, or stealing it. “We thirst after opulence,” Kames remarked in
Historical Law Tracts.
David Hume would put it even more vividly: all the other passions, including self-interest itself, have relatively minor effect on our lives, compared with the desire for property. “This avidity alone of acquiring goods and possessions for ourselves and our nearest friends is insatiable, perpetual, universal, and
directly destructive of society
.”

Hume’s point seems to contradict Kames’s belief that property stands at the origin of society, but it actually restates it. We establish government precisely to put a check on
other people’s avidity for our personal goods.
Where property is, laws and government follow, not out of keen desire for them, but out of necessity. What we want and have, others want, too, and they will do anything to get it, if we let them.

If
we let them. What we might not have the time or even the inclination to do, compelling others to leave our possessions alone, the law does for us. In this way, Kames believed the law, meaning not just legal rules but their enforcement as well, served a powerful didactic purpose. It tells us our duty, toward others with regard to property and other rights, and toward ourselves. Doing injury to one person’s property hurts everyone, because violating the rights of one, such as the right to property or the right to life, threatens the rights of all. In other words, the law projects a particular moral picture onto the world, which we as members of the community must share.

In its very earliest stages, as in the laws of Moses or of Hammurabi, the law simply taught men not to harm others, in their person or their possessions. Then it taught the importance of keeping promises and contracts, including the buying and selling of goods. Finally, as in the civil law code of the ancient Romans, “it extended to other matters, till it embraced every obvious duty arising in ordinary dealings between man and man.”

Eventually the law’s role in creating a moral order is supplemented by an internal device: the voice of conscience. “In the social state under regular discipline,” Kames explained, “law ripens gradually with the human faculties, and by ripeness of discernment and delicacy of sentiment, many duties formerly neglected are found to be binding on conscience.” Our innate moral sense finds a social footing, and the law is forced to catch up with the new attitudes: “Such duties can no longer be neglected by courts of law.”

The happiest society, Kames concludes, is one where the law and culture, or what he and the rest of the eighteenth century called “manners,” match. “The law of a country is in perfection,” Kames wrote, “when it corresponds to the manners of a people, their circumstances, their government. And as these are seldom stationary, the law ought to accompany them in their changes.”

And what are those changes? This was the second new twist Kames gave to his subject, one that was even more momentous and far-reaching. Kames attempted nothing less than to organize the history of the human community into four distinct stages, based on his extensive reading in comparative law, history, and geography, in order to show how each of these stages forces changes in the way people think, act, and govern their lives.

“Hunting and fishing,” he explains in
Historical Law Tracts,
“were the original occupations of man.” The life of the hunter and fisher, like those of the Bushmen of southern Africa and Eskimos in Kames’s own day, encourages him to avoid other human beings, except members of his own family, as competitors in the daily hunt for game. Then, somewhat later, men learned to follow the animal herds and discovered how to domesticate them for their own purposes. This is the second stage, the pastoral-nomadic stage. “The shepherd life promotes larger societies” of clans and tribes, “if that may be called a society which hath scarce any other than a local connection.”

Instead, the “true spirit of society, which consists of mutual benefits and in making the industry of individuals profitable to others as well as to themselves,” must wait for the third stage of the human community, that of agriculture. Cultivating the fields is by necessity a communal enterprise: “this circumstance,” the need for cooperation to bring in the annual harvest, “connects individuals in an intimate society of mutual support.” New occupations arise—plowman, carpenter, blacksmith, stonemason—and new relationships: between craftsman and farmer, between landlord and tenant, between master and slave. New forms of cooperation, in one sense, but also new sources of conflict and the clash of competing interests.

In the first two stages of human society, Kames argued, that of hunter-gatherers and pastoral-nomads, there is no need for law or government, “except that which is exercised by the heads of families over children and domestics.” It was the agricultural community that first needed additional help. Why? Because “the intimate union among a multitude of individuals, occasioned by agriculture,” bred a complexity of rights and obligations no one had encountered before, and which earlier custom could not control. The law takes over, enforced by sanctions and punishment. These in turn require law enforcers, “men of weight and probity” to judge and acquit. “In short,” Kames concluded, “it may be laid down as an universal maxim, that in every society the advances of government toward perfection are strictly proportioned to the advance of the society toward intimacy of union.”