James Dalrymple, 1st Viscount of Stair, on Legal Normativity
James Dalrymple, 1st Viscount of Stair, on Legal Normativity
Abstract and Keywords
The chapter concentrates on Stair’s understanding of laws, whether human-made or divine. Scots law is a particular application of a rational legislation, which ultimately rests upon God’s perfections. However, positive law cannot be entirely derived from natural law, mainly because of the Fall and also for pragmatic reasons. One important aspect of Stair’s contribution to legal and moral philosophy is his distinction between conventional and obediential obligations (from the will of God only), and his account of the principle of ‘engagement’ at work in conventional obligations. Also, Stair’s view that a promise is binding per se, without acceptance by the promisee, deserves attention.
Stair’s Institutions of the Law of Scotland: Deduced from its Originals, and Collated with the Civil, Canon and Feudal Laws, and with the Customs of Neighbouring Nations have a double relationship with legal normativity.1 The book provides a reasoned account of the constitution of rights and traces obligations back to ultimate sources of normativity. In this sense, the Institutions are about the origin, form, and content of legal normativity and thus pertain to the genre of philosophical jurisprudence. However, the Institutions also have, to some extent, normative weight. In the hierarchy of legal sources used in Scotland, since the nineteenth century, Stair is considered to be an institutional writer of some authority and, therefore, can in some instances act as potential source of law, although this should be carefully qualified (see McBryde 1993; Hogg 2009; Vagni 2011).
There is a different question about the Institutions being, or not, a testimony to what Scots Law was in the age of Stair. Hundreds of citations of Scottish cases, from the interregnum Commission for Justice or from the Court of Session, drawing on earlier Practicks or on his own collection as a Lord of Session and other sources (for a thorough analysis, see Wilson 2011), feed Stair’s argument. However, as David M. Walker noticed, taking the Institutions as evidence of the state of Scottish Law in 1681 would ‘beg the question whether and, if so, in what respects and to what extent Stair when (p.141) writing modified or restated, or even created, on the basis of Roman law, a system of Scottish private law’ (Walker 1981a).
When writing the first draft between 1659 and 1661 (as has been established by Ford 2007), what Stair had in mind was far more than a digest of Scottish law. His aim was not to compile contingent material and to impose a rational structure upon it in a superficial way. On the contrary, Stair’s intuition is that the private law of Scotland embodies a universal juristic logic. Although Stair’s choice of language, the vernacular rather than Latin, demonstrates a national focus (Wilson 2010), his interest is in the rational core, the legal thinking behind the decisions of the court. Stair has limited interest in the history of the sources of Scottish law. He writes his Institutions as a philosopher, not as a historian (David 1972), and considers that the relevant information is to be found by consulting reason and judicial decisions, especially ‘the authority of the Lords of Session’ (IV.1.1), rather than by tracking parliamentary acts and statutes.
However, the kind of connection that Stair makes between Scottishness and universality at the outset of his opus magnum is not direct. It is only through Christianity that the national and the rational converge. The law of Scotland, ‘in its nearness to equity, plainness and facility in its customs, tenors and forms’—here ‘equity’ means natural law—‘may be well paralleled with the best law in Christendom’ (I.1.16). Scots law is universal qua Christian.
To secure the place of Scots law on the map of Christian legislation, Stair puts emphasis on its similarities with canon law and civil law. Stair’s jurisprudence sets out a combination of Scottish customary law and of Roman law as a consequence of the universal principles of equity. Roman law and canon law have no authority per se, but only through the customs recognized by Scottish courts, with which they have manifest affinity (I.1.16). Stair’s use of Roman law, his knowledge of which he might have improved during his stay in the Netherlands, is fully in line with the ancient tradition of the training of Scottish lawyers in continental universities.2
A ‘Rational’ Exposition of the Law
Stair addresses the question ‘whether law may or should be handled as a rational discipline, having principles from whence its conclusions may be deduced’ (I.1.17).3 For Stair, as for most seventeenth-century philosophers, being rational is synonymous with being able to be expressed as a series of propositions deriving from a set of axioms.4 However, as he points out, ‘most lawyers’ unduly consider law as ‘incapable of such a deduction, as being dependent upon the will and pleasure of lawgivers, and (p.142) introduced for utility’s sake, and so frequently alterable’. Contrasting ‘judgement’ with ‘memory’ in a manner that is typical of the Cartesian age of rational method, Stair also criticizes commentators of civil law for proposing ‘a congestion of the contexts of the law’ rather than a principled approach. Here Stair sides with Hugo Grotius and the Moderns.5
What are ‘first principles’ (I.1.3) or ‘common principles’ (I.1.4) of law? They are general self-evident normative propositions:
The principles of law are such as are known without arguing and to which the judgement upon apprehension thereof will give its ready and full assent, such as God is to be adored and obeyed, parents to be obeyed and honoured […].
Among those self-evident normative propositions, objects of intuitive assent, some—‘obedience, freedom and engagement’ as ‘the first principles of right’—are ‘most general’ and have the remarkable capacity to generate secondary norms: ‘Here we shall speak of the most general principles, which have influence on all the rights of men […]’ (I.1.18). Rights ‘flow’ directly or indirectly from the principles of natural law. This parallels the way in which, in Stair’s neo-Aristotelian book on natural philosophy, physical phenomena follow ‘communia quædam principia’ ‘per se evidentia’ (certain common principles evident in themselves) (Stair, 1st Viscount 1686: 8), as MacIntyre (1988: 232–234) has cogently argued.
The way in which rights derive from fundamental principles gives Stair’s Institutions their structure. In the 1693 second edition, where the parts and titles of the 1681 edition are rearranged into books, the first two books are about the way in which rights are constituted by laws, according to the ‘most general principles’; the first book deals with personal rights, while the second is dedicated to real rights and related subjects. The third book is about the transfer of rights; the fourth, made out of Stair’s Modus Litigandi—the Form of Process, which had first circulated in manuscript before being printed and bound with the 1681 edition of the Institutions—is about the ‘cognition’ of rights through judicial procedures: ‘action’, prosecution and process are thus broached in the final part, which shows the priority Stair gives in the structure of jurisprudence to right-conferring rules over proceedings. Although Stair did see the Court of Session as a Court of Equity and Common Law, his understanding of the generation of rights was philosophically resistant to the English common law principle that ‘where there is no remedy, there is no right’. Rights are more fundamental in Stair’s philosophical jurisprudence, who sticks to the civil law principle, ubi ius ibi remedium.
‘The Roman law takes up for its object persons, things, actions, and, according to these, orders itself. But these are only the extrinsic object and matter, about which law and right are versant; but the proper object is the right itself, whether it concerns persons, things, or actions, and […] the order of jurisprudence may be taken up in a threefold consideration, first of the constitution and nature of rights, second in their conveyance or translation from one person to another […], third in their cognition, which comprehends the trial, decision and execution of everyman’s right […].’
By giving a structuring role to obligations as limitations on the freedom of some and to the corresponding rights in others, Stair reshapes Justinian’s arrangement, as David M. Walker points out:
‘Stair saw that there was something more important than rules about persons, things and actions. The fundamental subject for examination and exposition was the legal right, or legally recognised and enforceable claim against another or others generally, and the counterpart duty on that other or on them.’
Law should be exposed in a rational way, starting from universal principles, so that we would know what rights and obligations we have as men or women and how we acquire new rights and obligations in a social or commercial setting. However, a rational exposition does not necessarily suppose that the whole content of law should or could derive from those principles. In fact,
‘the deduction of reason, further from the fountain, through the bias and corruption of interest, may make it much more dubious, in hypothesi, when it comes to the decision of particular cases in all their circumstances’
Human beings, as they are, have interests and goals that often do not square with the demands of natural law or ‘equity’.
Natural law ‘cannot be altered’ because its ‘unchangeable ground’ is ‘congruity to the nature of God, angels, and men’ (I.1.1, already quoted). One epistemic consequence is that we can discover the content of natural law by thinking about the nature of God, angels, and human beings, that is, by the method Stair adopts in the anonymous Vindication of the Divine Perfections (1695). Stair does not subscribe to a strongly voluntarist concept of natural law. Whereas divine positive law is ‘mutable’ (I.1.8), the law of nature cannot be altered and, as such, is ‘the immutable moral law’ (I.1.9).6 For God, who has ‘absolute freedom of his choice’, ‘unchangeably determine[s] himself by his goodness, righteousness, and truth’, that is, by his perfections (I.1.1). Stair connects immutability and morality in the law of nature and sees it as the fundamental rule of a realm common to all rational beings. The same law ‘is also the law of all rational creatures, by which they ought to determine and rule their free action’ (I.1.1). However, angels and human beings are also governed by ‘other dictates of their reason’, such as (p.144) those of obedience to God (we cannot say that God has to obey himself). Most importantly, ‘reason does determine mankind yet further from the convenience of his nature and state, to be humble, penitent, careful, and diligent for the preservation of himself and his kind’. So incentives to social virtues and basic norms of individual and collective prudence complement the law of nature as far as human beings are concerned.
The ‘Influence’ of the ‘Most General Principles’
In book I of the Institutions, Stair’s use of the term ‘equity’ prima facie has little to do with the English concept of a power given by the monarch to a specific jurisdiction, the court of Chancery,7 in order to moderate ‘the most exorbitant penalties’ of the common law (IV.3.1), conformably to the idea of equity as ‘the moderation of the extremity of human laws’ (I.1.6). According to I.1.18, equity, which Stair does not distinguish from equality, is identical with natural law.8 Thus, although Stair saw the Court of Session as manifesting the King’s sovereign power to dispense equity and develop equitable law, he had a deeper and broader conception of equity which was not confined to jurisdictions of courts. Equity ‘does truly comprehend the whole law of the rational nature’ and thus comprises the three fundamental principles: Obedience, freedom, and engagement.
1. The principle of obedience claims that human beings ought to obey God.
2. The principle of freedom claims that human beings are free in matters where they are not bound by the first principle, not ‘restrained’ by obedience (‘where obedience ends, there freedom begins’, I.1.20).
Beyond ‘a few necessary moral duties’ (I.1.20), human beings—in a state governed by natural law only—have been left unconstrained in their actions. We should be careful not to bring into this discussion the question whether the will is determined. Stair tries to take a position compatible with the Calvinist confession. He makes clear that this second principle concerns freedom of action only (‘a liberty ad contradictoria, that he may do or not do, and ad contraria, that he may do this or the contrary’, I.1.20). Stair silently sets aside the metaphysical and theological predicament of freedom of will and focuses on freedom as permission to act. It is important to note that human freedom ‘is not absolute, but is limited’, first of all ‘by the will of God and our obediential obligation’ (I.2.5).
3. The principle of engagement claims that humans are free to restrain their own freedom (‘engagement begins where freedom ends’, I.1.21).
In deriving obligations and rights from these principles, Stair claims that he succeeds where Roman law failed: he provides a ‘good distinct division’, ‘according to the principle or original from whence they flow, as in obligations obediential, and by (p.145) engagement, or natural and conventional’ (I.3.2). What is most remarkable in this juristic trinity is also that it is a strict ordering of principles. Human beings could not be free, were they not first obedient, freedom being delimited by obedience. Human beings could not be ‘engaged’, were they not first free, engagement being an adventitious limitation on human freedom. Without pushing the comparison too far, we might apply the Rawlsian idea of lexical priority: the first and second principles must be fully satisfied before moving respectively to the second and third ones. Stair’s division thus has a generative dimension.
There are two kinds of restrictions and constraints on human freedom: voluntary, through engagement, and involuntary (so far as human wills are concerned), through obedience. What is crucial to obediential obligation is that the obedient person’s will does not create the content of the obligation. Stair’s analysis of marriage highlights the distinction between obediential and conventional obligations. Obligations between husband and wife are obediential (I.1.19), like ‘obligations of restitution, reparation, and remuneration’.9 ‘In all which we are engaged not by will and consent.’ Stair contrasts obediential obligations with strictly contractual ones. Thus marriage is not a contract, because the obligations between married people do not depend on their will in the sense they would be created by their wills, although it depends on their will to enter marriage. ‘Though marriage seems to be a voluntary contract by engagement, because the application of it is, and ought to be, of the most free consent’, ‘it is not a human, but a divine contract’ (I.4.1). Marriage is voluntary in the sense that the parties have to decide whether they want to marry or not. However, it is not voluntary in the sense that the institution of marriage, its substance, would be created or even altered by the will of the parties, or by any other human will. If the civilians call that kind of obligation (that of marriage, or that of ‘restitution, reparation, and remuneration’) ‘quasi ex contractu, because they find them obligatory, and yet not by contract’, they should not conflate it with contractual obligation (I.1.19).
Drawing on I.1.19, where Stair says that obedience proper (that is, obedience to God) is ‘immediately obliging without any tie upon him by himself’, we may characterise engagement as a power to place oneself under an obligation and even to define the content of self-imposed obligations. In a long-term history of the philosophical invention of autonomy, Stair would deserve to be mentioned. However, although conventional obligations arise ‘from the will of man’, it is crucial to note that their normative force is founded in God, by whom we are thus mediately bound to execute those obligations: God ‘obliges us to performance, by mediation of our own will’ (I.10.1). So the autonomy of human beings is deeply relative, to say the least.
We should be careful not to conflate the way in which conventional obligations ‘arise’, that is, in what circumstances they appear, and the way in which performance of obligations is required of us. In the case of obediential obligations, there is no such (p.146) difference, since the will of the Maker both gives rise to the obligation and compels humans to performance. In the case of conventional obligations, we might think that the human will, fully autonomous, obligates itself by itself, independently of God’s authority, which, as I will argue, would be an oversimplification. When Stair writes about conventional obligations as ‘arising from the will of mind, whereby our own will ties us in that wherein God has left us free’ (I.10.1), he accounts for the way in which these obligations ‘arise’—a term most frequent in the Institutions—not for the source that compels to perform.
This is a most important point to assess Stair’s ambiguous place in the history of the early modern agent as an ‘autonomous’ subject. Neil MacCormick correctly considers that keeping faith is an obediential obligation in Stair, and observes:
The full account of that would be that God wills that whatever commitments men of their free will undertake, those commitments they must keep. So although it would be wrong within the theory to say that conventional obligations are independent of the will of God, they are unlike ‘obediential obligations’ in that their particular existence and content for each of us is also and necessarily dependent on our own will.
I submit that MacCormick’s proposal is supported by Stair’s distinction between mediate and immediate obligation, and the distinction I have set out between the origin of an obligation (the way it ‘arises’) and its normative grip (the compulsion to perform).
I have characterized the first principles of equity as claims about obedience, freedom, and engagement. In fact, this reading is debatable. Stair writes that just as the principles of equity are obedience, freedom, and engagement, so the principles of positive law are society, property, and commerce (international as well as national). Occasionally, he also presents them as having a propositional form in the modality of obligation (‘that God is to be obeyed by man’, I.1.18). This apparent hesitation—does the principle of freedom consist in freedom itself or in the claim the humans are free? does one principle of positive law consist in commerce or in the normative claim that commerce ought to be ‘maintained’?—is consistent with the traditional, originally Aristotelian understanding of ‘principles’ both as fundamental propositions and as causes.
It is both as normative propositions and as causes that principles have consequences. When Stair talks about ‘obligations by paction,10 promise, or contract, all which do arise from the principle of engagement’ (I.1.21), he means that conventional obligations are instituted by acts of engagement of human wills. When Stair examines the case of reparation as a ‘natural obligation’, he also uses the vocabulary of ‘arising’ to account for the relationship between obediential obligations and their principle. ‘Obligations of delinquence’ too are obviously obediential, not conventional, even though human faults have to be voluntary. They
arise without any convention, consent, or contract, either particularly, or only by virtue of any positive law, and therefore they must needs have their original from the authority and will of God, and of our obedience due thereto; for, though they do proceed from our fact, and from our will, whence that fact is voluntary committed, yet it is not from our contracting will; and therefore, these obligations do not receive their effect and measure, or extent, by our will.
From Psychology to Juristic Logic
With the fascinating concept of ‘engagement’, we are at the intersection of scholastic philosophy of mind and juristic logic.11 In modern English, we would rather say ‘commitment’ to signify a voluntary restriction of one’s freedom of action. Stair gives much importance to human commitments as a specific source of obligations and of correlative rights. ‘Engagement’ is, among the three acts of the will that Stair mentions (I.10.2), the only one that has the kind of normative authority that is required for someone to be bound by oneself:12
1. Desire is ‘a tendency of inclination of the will towards its object’. Desire is not sufficient to constitute a right. If I feel that I would be happy to lend you my bicycle tomorrow, this does not give you a right to use it.
2. Resolution is ‘a determinate purpose to do that which is desired’. This is not ‘efficacious’ either, as far as the constitution of a right is concerned. If I fully intend to lend you my bicycle tomorrow, nothing forbids me from reconsidering this resolution. As Stair puts it: ‘Whatsoever is resolved or purposed may be without fault altered.’ Reconsidering one’s resolution ‘without evident ground’ ‘imports levity and inconstancy, and sometimes deceit and unfaithfulness’. Changing one’s resolution rashly may warrant moral blame, as a sign of unreliability or of lack of character. However, it is not a moral transgression properly speaking, simply because having a firm resolution per se does not give rise to any obligation, ‘though it were never so fully cleared or confirmed by word or writ’. The metaphysical reason for that normative incapacity of resolutions is that they are what, one century later, Thomas Reid will call ‘solitary’ acts of the mind. As Stair puts it: ‘Resolution is but an act of the will with itself, as deliberation is of the understanding, acting within itself, and it is unquestionable, nothing can be obliged to itself though it be obliged to God or to another in relation to itself.’
3. Engagement is the act ‘whereby the will confers or states a power of exaction in another, and thereby becomes engaged to that other to perform’. Contrary to resolutions, (p.148) engagements constitute rights in others, because they consist in acknowledging or in giving to others the power to compel the ‘engaged’ party to perform. A and B being persons, and φ an action, the grammar of engagement is: A is ‘engaged’ to B to φ. To draw again on Thomas Reid’s idiom, engagements are acts of the mind that are essentially ‘social’ (Reid 2010).13
Suppose I promise you that I will lend you my bicycle tomorrow. This is an engagement on my part toward you. You are aware that I have made a promise to you, simply because a promise is made by X to Y generally through a proper speech act that informs the promisee. You may have remained silent. You may have informed me that you scorn to use that boneshaker. Nothing in this attitude deprives you from your right to use my bicycle tomorrow. Your right has been constituted by a one-party engagement: my promise.
Suppose my neighbour Isabel has an interest in the bicycle, so that calling it my bicycle is oversimplified. Isabel and I consent to lend you the bicycle tomorrow. This is a two-party engagement (constituted by Isabel’s engagement and by my engagement). You are a third-party to that engagement. You may not be aware that now you have a right to use the bicycle tomorrow. In addition, you may have not yet heard about this, but that does not alter your right.
In both cases, obligations and rights arise by another circuit than that of offer and acceptance. Stair claims that a promise in the strict sense—for he happens to use the term in a more generic sense (1.10.5)—has nothing to do with an offer the validity of which depends on its acceptance by the beneficiary—a point to which I return in the section on ‘Engagement and the Case of Pure Promises’. Although he knows well enough that most conventional obligations are based on offer and acceptance, he maintains that some are not.14
One important question concerns the source of normativity of engagement. Why do engagements have a normative authority that desires and resolutions do not have? Is it for reasons that are internal to the nature of engagement? Indeed, engagement itself is a source of normativity. A promise gives birth to a correlative right in the promisee. The promisor is bound to comply, and may be compelled to do so. The question is whether engagement is the primitive normative ground. Now, according to Stair, engagement (the term means here the capacity to engage, not a particular exercise of it) is the third ‘first principle’ of equity, after obedience and freedom. This means that the normative force of a promise or of any engagement is derivative. A promise in the strict sense, distinct from an offer, binds absolutely, unconditionally. However, breaking a promise is a transgression not only of the particular obligation contracted by the promisor, but also of what I have called the ‘juristic trinity’.
(p.149) Our engagements give rise to conventional obligations. We are ‘bound to fulfil’ our ‘voluntary engagements’ (I.1.18) by natural law. To the question can the (human) will obligate itself? it seems to me that Stair gives two different answers, depending on whether we see it as (1) a question about the ability of the will to give rise to conventional obligations, or as (2) a question about the ability of the will to compel itself to act according to its ‘engagement’. As to (1), the will can do it. As to (2), it cannot and in that sense only God’s will, as expressed through the moral law, obligates a human will. Fidelity to promises rests upon a virtue required of us by natural law. Nothing is more opposed to Stair’s understanding of the normativity of promises than Hume’s claim that promise-keeping draws on an ‘artificial virtue’. Hume just contradicts Stair’s claim that ‘there is nothing more natural than to stand to the faith of our pactions’ (I.1.21).15
The Constitution of Subjective Rights
Rights of human beings are ‘the formal and proper object of law’. Stair tends to limit his use of the term ‘right’ to refer to subjective rights: ‘Right is a power given by the law of disposing of things, or exacting from persons that which they are due’ (I.1.22). Since law is produced by the will of a lawmaker, whether human or divine, we might say, as well, that rights are constituted by a will, so that subjective rights essentially depend on human positive law, divine positive law, and natural law. There are three kinds of human rights: personal liberty (‘personal liberty is the power to dispose of our persons, and to live where, and as we please, except in so far, as by obedience or engagement, we are bound’); dominion over things or ‘real right’ (‘power of disposal of the creatures in their substance, fruits and use’); and obligation (between debtors and creditors). Thus, subjective rights are derivative and depend on the law that produces them. Each kind of rights may be limited as well as constituted either by obedience (the will of God) or by engagement (human will).
‘The will is the only faculty constituting rights, whether real or personal; for it is the will of the owner, that naturally transfers right from him to the acquirer’ (I.10.1). However, we should not infer from the claim that buyers’ rights of ownership are constituted by sellers’ wills (jointly with their own will to buy) that the obligation to perform under a sales contract is human-made. Another example: The wills of the creditor and the debtor together constitute a personal right, the power of exaction in the creditor, and an obligation in the debtor. This should not be taken as meaning that human will constitutes the whole of conventional obligation. As Stair says in I.1.22, the right in the creditor (which ‘has no proper name’) corresponds to ‘a legal tie whereby the debtor may be compelled to pay, or perform something, to which he is bound, by obedience to God, or by his own consent and engagement’ (my emphasis). This disjunctive formulation is interesting: It suggests that obedience to God is still at (p.150) the background of conventional obligation.16 In I.3.3, Stair writes that in obediential obligations ‘we are bound solely by our obedience to God’ (my emphasis), whereas he defines conventional obligations as being such ‘as we are bound by and through our own will, engagement or consent’, without using ‘solely’, which gives support to the line of interpretation adopted by MacCormick.17
Moreover, we should pay attention to the phrase ‘by and through our own will’, which hints at a source of normativity beyond ‘our own will’. Human will is not simply that by which we may be bound, but that through which God binds us. Obedience is fundamental. Conventional obligations do not belong to a normative realm that would be independent from the divine source of normativity. This reading is consistent with the fact that Stair, as a Calvinist, could not accept a strong version of the claim that human will is autonomous and able to bind human agents on the path of rightness. His interest in Grotius did not make him an Arminian.
Engagement and the Case of Pure Promises
Stair’s comments on unilateral binding promises, later considered as typical of Scots law, articulate a view of normativity according to which the existence and validity of the obligation may not depend on the consent of the party that may benefit from it. In a nutshell, there are moral obligations that are not contractual. In I.10.5, Stair gives much importance to the distinction between unconditional promises and promises ‘dependent upon acceptance’, such as ‘offers’ (revocable by the offeror before acceptance of the offeree) or promises made conditional upon performance of some act on the part of the promisee. In practice, it might be difficult to establish whether a statement is a promise strictly speaking or an offer; or whether the expression of an intention is or is not a promise; in any case the onus of proof is on those who claim that there has been an unconditional promise (Scottish Law Commission 1977).
The case of unilateral binding promises is not a curious fact, which Stair would passively register, but something that echoes Stair’s basic assumptions in his systematic account of law. For this conception of a promise that is not conditional upon the consent of the promisee—although actual benefits depend on its acceptance; and in spite of the right of the promisee to reject the promise (I.10.4)—fits well with Stair’s reluctance to give consent an exclusive role in the creation of obligations. Human beings interact within a network of obligations, some of them they do not create, others (p.151) they create; among the obligations they create, some are contractual, others strongly depend on the moral law.18
Although Stair discusses promises under the general heading of ‘conventional obligations’, it is quite clear that, in his view, the normative grip of promises is obediential. Stair does not deviate from the traditional view that it is by the law of nature that promises are ‘morally obligatory’. What Stair has in mind seems to be the difference between the way in which I bind myself by agreeing to go to the theatre with someone who agrees to accompany me, and the way in which, having promised, I am bound to keep my word. In the former case, the (contractual) binding is entirely the effect of human will. In the latter case, it is not.
Obediential obligations flow from the will of God; conventional ones flow from the will of man (I.10.1). Every obligation is voluntary in this sense: it is caused by a will, human or divine. Conventional obligations are voluntary in a stronger sense: they exist ‘by mediation of our own will’ (I.10.1). For God ‘has given us that liberty in our power, that we may give it up or restrain and engage it […]’. Now, the moral obligation of promises does not exist ‘by mediation of our own will’. As the obligation of marriage is obediential, although getting married is a matter of consent for both parties, it is not obligatory to keep one’s promise only because we consent to keep it, although one consented to promise. Just as a married person, I am bound to behave in certain ways, which constitutes the legal content of marriage, as a promisor I am bound to behave in a certain way, which simply consists in keeping my word. In both cases the substance of the obligation is not up to me. It is predefined by the divine law.
The case of marriage clearly shows the difference between natural and positive obligations. The ‘economical power and authority, whereby the husband is lord, head and ruler over the wife’ is not contingent on any social circumstances or individual projects. When the Lord declares to Eve that Adam will rule over her, although it may ‘seem a penalty imposed upon her for being first in the transgression’ (and thus a part of positive divine law), it is ‘no more than a consequence of the moral law, whereby marriage being instituted before the Fall, the woman was made for the man, and the man for the woman’ (I.4.9).
As we have seen in the section on ‘The “Influence” of the “Most General Principles” ’, it also illustrates the distinction between obligations that depend on obedience and obligations that depend on engagement. ‘As a husband has a power to restrain his wife from her liberty of going where she will […] so may parents restrain their children and also constrain them to the performance of moral duties, and that without any engagement’ (I.2.5). The authority of parents over their children does not depend on the consent of the latter, who never consented to be children, and a fortiori cannot (p.152) depend on their engagement, that is, on their decision to further limit their own freedom, which is limited by obediential obligation.
That there are natural obligations betwixt parents and children, not proceeding from the consent of either party, or from the constitution of any human law, but from the obedience man owes to his maker […] is evident by the common consent of all the nations of the world, how barbarous soever.
The case of wives is slightly different, since becoming wives depends on their consent; however, and this is a good example to grasp the distinction between consent and engagement, what they consented to is the divine institution of marriage, which involves limitation of their freedom in an obediential, not conventional, manner. The limitation of a wife’s freedom is not the direct effect of her consent to get married, but a consequence of the status of wife, to which they have consented.
I have claimed that Stair’s view on the obligation of promises rests upon the same principles. Or, to put it differently, promises oblige independently of human wills. Contracts oblige through the mediation of the will of contractors. Human freedom is ‘engaged’, limited by itself, in the case of agreements. It is limited by the law of God in the case of promises in the strict sense. Therefore, promises are not on the same footing as agreements and contracts. Acceptance is essential to contracts, not to promises.19
In I.10.11, Stair elaborates upon the Roman law distinction between four ways to contract: contracts may be ‘perfected by things, words, writ, or sole consent’. When contracts rest upon pledges (‘things’), their obligatory force is quite different from that of promises. Instances of the contracts by sole consent are ‘contracts of sale or location, or hiring, society, and mandate or commission’. Here Stair interestingly adds: ‘But all other promises and actions are now [as opposed to Roman law] valid contracts by sole consent, except where writ is requisite.’ Thus only one kind of contract, by sole consent, is akin to promises.
If promises were not morally obliging, they could have no effect but by positive law (which is no more itself that a public paction […]) and then all pactions and agreements among nations would be ineffectual, and all commerce and society among men should be destroyed.
We should read this as meaning that the obligation of promises is fundamental, and the obligations of ‘pactions’ and agreements is derivative.
The obligation of promises should be sharply distinguished from that of contracts and offers, in so far as the former is not conditional, whereas the latter depends on acceptance by the co-contractor or the offeree:
The value of the doctrine of the binding force of the unilateral promise may be thought to lie principally in its consonance with, and its according of effect to, the generally accepted moral standard that seriously intended promises should be kept …
(Scottish Law Commission, 1977: 6)
The moral standard is the canon principle that omne verbum de ore fideli cadit in debitum (quoted by Stair, I.10.7; see Scottish Law Commission, 1977; see also Vagni 2011). The obligation is constituted by the act of promising. Therefore, it is constituted as soon as the promise is made to the promisee, independently of the acceptance of the benefits by the latter, and without having to be made in a deed under seal. Proof of the promise by an oath or a written form may be necessary in practice; however, the obligation is internal to the bare promise and not produced by the oath or the deed.
Stair resists the shift, typical of early modern natural law, from the view that promises, since they are per se binding, are a source of enforceable obligation, to the view that contracts, and thus mutual acceptance, are the true source of legal obligation, including that of promises. Stair maintains two distinct sources of obligation, that of agreement, and that of promise, that is, the duty of keeping one’s word seen as a consequence of the duty of telling the truth.20 ‘The promise obliges the conscience, and the honesty of the promisor’ (I.10.4). Stair sticks to the traditional view that promise-keeping depends on the virtue of fidelity, which transcends and conditions political interactions, whereas Grotius and most authors in the seventeenth century consider promise-keeping as a matter of justice.21
A Consequence of the Fall: The Gap between Equity and Utility
The enforcement of equity is manifestly affected by the Fall. Equity or natural law and positive law (meaning human legislation, for there is also a divine positive legislation, that of Mosaic theocracy (‘judicial law’, I.1.9) or that of ‘ceremonial laws’, which ‘are not written in the heart of man, nor deducible by reason from any such principle’ (I.1.8)) should concur, since the function of the latter is to enforce the former. However, due to the Fall, it happens that it is better to waive some demands of equity. ‘Man being now depraved’,
in this estate it is profitable to him to quit something of that which by equity is his due, for peace and quietness sake, rather than to use compulsion and quarrelling in all things, and to find out expedients and helps to make equity effectual.
(p.154) Here Stair contrasts the principles of equity as the ‘efficient causes of right and laws’ (I.1.17) with the principles of positive law as the ‘final causes or ends for which laws are made, and rights constitute and ordered’. Thus, only the principles of equity may be considered as principles in a strict sense, that is, as sources of normativity, from which legal obligations flow. The so-called principles of positive law, which consist of ‘society, property and commerce’, should rather be considered to be about the aims or intentional consequences of human institutions and regulations. Thus, they are interested in what is good or bad, useful or harmful, not, properly speaking, in what is right or wrong. In a sense, Stair combines a deontological account of ‘equity’ and a consequentialist account of positive law (‘whose aim and interest is the profit and utility of man’ (I.1.18); see also his remark that ‘human law is that which, for utility’s sake, is introduced by men’ (I.1.10)). Now, the right and the good (the latter synonymous with expedient, see I.1.16) diverge because of the Fall (‘if man had not fallen, there had been no distinction betwixt bonum and æquum’).
How should we understand Stair’s elusive claim here? What he has in mind seems to be that human beings should be considered as they are, that is, ‘apt to fraud or force’ (I.1.18), so that they tend to be most quarrelsome in matters of distributive justice. So it is far more difficult simultaneously to enforce equity, giving each one one’s due, and to look after collective well-being. Sometimes it is better, ‘for the profit of man now in his lapsed state’, ‘to lay aside the effects of’ equity (I.1.17; see also I.1.8, ‘it may be more profitable for the people to forbear the pursuance’ of some points of right ‘than to be at the trouble and expenses of the pursuit’). The Fall has brought about a divorce between the right and the useful. It is important that conflicts in the fallen do not necessarily depend on a biased sense of right and wrong. On the contrary, that sense is not universally corrupted, and is relatively preserved in comparison with the sense of the good or the bad, simply because it consists in the knowledge of law, in legal science, rather than in what the British moralists will call a ‘moral sense’ in the first decades of the eighteenth century: ‘God in his goodness has given man more radiant rays of reason, and preserved it more after his Fall, about his rights of meum and tuum, than in any other science or knowledge, which for the most part are dubious and conjectural …’ (I.1.17). One effect of the Fall and of the divergent fates of the sense of the right and of that of the good, is the chronic conflict between the legal and the moral, justice and prudence, the right and the good, equity and utility. This is how Stair makes his jurisprudence compatible with the reformed confession.
Positive law and political obligation are, to a great extent, governed by human projects. The question ‘why engage?’ is meaningful, whereas the question ‘why obey?’ is meaningless. We are bound to obey God. We may or may not bind ourselves through engagements, according to prudential considerations and the necessities of the principles of positive law, society, property, and commerce. As rational beings we ought to wonder whether we should thus diminish our freedom in this or that particular matter. Once bound, considerations of justice should govern the way in which we behave, until prudential considerations lead us to reconsider our engagements. This is how the world goes.
(p.155) Stair’s political philosophy should be in line with his account of the principles of positive law. However, it is barely outlined in his Institutions. Setting divine positive law aside, as far as human policy is concerned, Stair seems to stand on the side of Locke against Filmer—although there is no evidence that Stair read Locke, nor that Locke read Stair, in spite of their affinity as supporters of William and Mary. Drawing on I.1.15–16, in which Stair defends a view, strikingly similar to that of Locke, about the role of government as a public authority which each one recognizes in order not to be ‘a sovereign judge in [one’s] own cause’, MacCormick has argued that for the author of the Institutions, political obligation must be ‘a species of conventional obligation, in Stair’s sense, dependent on a contract among the members of a community’ (MacCormick 1979). However, here again, we should not merge the question of the way in which we acquire a conventional obligation and possibly contribute to the definition of its content, and the question of the foundation of its normative grip. There must be some obediential element (in the strict sense: that of obedience to God) behind political obligation for a member of the Kirk who cunningly tried in 1681 to sabotage the Test Act by including into it, under the head of a definition of the Protestant religion, a reference to the Scots Confession of Faith (on this episode, see Hutton 1981). In its article 24, the 1560 Confession, ratified by the Parliament in 1567, makes clear that magistrates are appointed not only ‘for civil policy, but also for maintenance of the true religion’, that is, the religion of the Kirk, whose ‘only head’ (art. 16) is Christ. We are quite far from Locke’s universe.
I have construed Stair’s stance on the source of normativity of human conventions thus: a human agent is able ‘to engage himself’, that is, to limit his freedom; however, the question why agents ought to comply with conventions and perform their own engagement is relevant; fortunately, there is an answer at hand: performance of engagements is required by the law of nature: ‘Being engaged by the law of nature he must perform’ (I.1.15). Obligations human beings may acquire voluntarily derive their normative grip from the law of nature, that is, the moral law. When considering the lexical priority (see my section ‘The “Influence” of the “Most General Principles” ’) in Stair’s juristic trinity of obedience, freedom, and engagement, we should pay attention to the fact that all obligations derive their normative force ultimately from God’s authority:
A. Obediential obligations derive their normative force from God’s will as expressed by natural law (‘founded on an unchangeable ground, the congruity to the nature of God, angels and men’, I.1.1).
It would be wrong to suppose that the case of obediential obligations should be paralleled by conventional obligations thus:
B. Conventional obligations derive their normative force from human will.
B is false. In fact, there is a more complex circuit behind the force of conventional obligations:
Bʹ is true. Within a theocentric view, by focusing on the generation of obligations and the correlative constitution of rights, the arrangement Stair adopts to structure the exposition of Scots law gives centre stage to private right, not as a particular branch, but as the logical core of jurisprudence. One might consider that Stair’s main achievement was the exposition of Scots private law as a rational system based upon the principles of natural law. That is half the truth. The other half is that private law pervades Stair’s understanding of natural law, and of positive law as well, by making obligations and the power to ‘engage’ central to the whole normative structure, within the limits set by the priority of obedience to God. What is interesting here is not only what Stair as a philosopher did to Scots law, but also what Stair as a Scottish lawyer did to philosophical jurisprudence.22
Anstey, P. (ed.). (2017). The Idea of Principles in Early Modern Thought. New York: Routledge.
Baier, A. (1991). A Progress of Sentiments: Reflections on Hume’s Sentiments. Cambridge, Mass.: Harvard University Press.
Campbell, A. H. (1954). The Structure of Stair’s Institutions (21). Glasgow: Jackson.
Campbell, J. C. (2017). The Development of Principles in Equity in the Seventeenth Century. Interdisciplinary Perspectives. In P. Anstey (ed.), The Idea of Principles in Early Modern Thought (45–76). New York: Routledge.
David, H. (1972). Introduction à l’étude du droit écossais. Paris: Librairie générale de droit et de jurisprudence.
Ford, J. D. (2007). Law and Opinion in Scotland during the Seventeenth Century. Oxford: Bloomsbury Publishing.
Gellera, G. (2012). Natural Philosophy in the Graduation Theses of the Scottish Universities in the First Half of the Seventeenth Century. Doctoral dissertation, University of Glasgow.
Gordley, J. (1993). The Philosophical Origins of Modern Contract Doctrine. Oxford: Clarendon Press.
Gordon, W. M. (1995). Roman Law in Scotland. In R. Evans-Jones (ed.), The Civil Law Tradition in Scotland (13–40). Edinburgh: The Stair Society.
Haakonssen, K. (1989). The Science of a Legislator: The Natural Jurisprudence of David Hume and Adam Smith. Cambridge: Cambridge University Press.
Haakonssen, K. (1996). Natural Law and Moral Philosophy: From Grotius to the Scottish Enlightenment. Cambridge: Cambridge University Press.
Hogg, M. (2009). Perspectives on Contract Theory from a Mixed Legal System. Oxford Journal of Legal Studies, 29 (4): 643–673.
Hutton, G. M. (1981). Stair’s Public Career. In D. Maxwell Walker (ed.), Stair Tercentenary Studies (1–68). Edinburgh: The Stair Society.
MacCormick, D. N. (1979). Law, Obligation and Consent: Reflections on Stair and Locke. Archiv für Rechts-und Sozialphilosophie, 65: 387–411.
MacIntyre, A. C. (1988). Philosophy in the Scottish social order. In Whose justice? Which rationality (241–259). London: Duckworth.
MacQueen, H. L. (2015). Contract Formation between Distant Parties. In L. A. DiMatteo & M. Hogg (eds.), Comparative Contract Law: British and American Perspectives (90–108). Oxford: Oxford University Press.
MacQueen, H. L. & Bogle, S. (2017). Private Autonomy and the Protection of the Weaker Party: Historical. In S. Weatherill & S. Vogenauer (eds.), General Principles of Law: European and Comparative Perspectives (269–296). Studies of the Oxford Institute of European and Comparative Law. Oxford: Hart.
McBryde, W. W. (1993). Promises in Scots Law. The International and Comparative Law Quarterly, 42 (1): 48–66.
Reid, D. (2008). Thomas Aquinas and Viscount Stair: the Influence of Scholastic Moral Theology on Stair’s Account of Restitution and Recompense. The Journal of Legal History, 29 (2): 189–214.
Reid, T. (2010). Essays on the Active Powers of Man, eds. K. Haakonssen & J. A. Harris. Edinburgh: Edinburgh University Press.
Richter, T. (2003). Did Stair Know Pufendorf? Edinburgh Law Review, 7 (3): 367–378.
Scottish Law Commission (1977). Constitution and Proof of Voluntary Obligations: Unilateral Promises. Memorandum, 35.
Stair, Sir J. Dalrymple, 1st Viscount (1686). Physiologia nova experimentalis. Leiden.
Stair, Sir J. Dalrymple, 1st Viscount (1693). The Institutions of the Law of Scotland: Deduced from its Originals, and Collated with the Civil, Canon, and Feudal Laws, and with the Customs of Neighboring Nations. In IV Books. The Second Edition. Edinburgh.
Stair, Sir J. Dalrymple, 1st Viscount (1695). A Vindication of the Divine Perfections, Illustrating the Glory of God in Them, by Reason and Revelation: Methodically Digested into Several Meditations. By A Person of Honour. London.
Vagni, L. (2011). The Enforceability of Promises in Scotland and in the European Contract Law: A Comparative Analysis from an Italian Perspective. Comparative Law Review, 2 (1).
Walker, D. M. (1981a). The Background of the Institutions. In D. M. Walker (ed.), Stair Tercentenary Studies (69–78). Edinburgh: The Stair Society.
Walker, D. M. (1981b). The Structure and Arrangement of the Institutions. In D. M. Walker (ed.), Stair Tercentenary Studies (100–105). Edinburgh: The Stair Society.
Wilson, A. L. M. (2010). Stair and the Inleydinge of Grotius. The Edinburgh Law Review, 14: 259–268.
Wilson, A. L. M. (2011). The Sources and Method of the Institutions of the Law of Scotland by Sir James Dalrymple, 1st Viscount Stair, with Specific Reference to the Law of Obligations. Edinburgh: The University of Edinburgh.
(1) James Dalrymple (1619–1695) was appointed in 1641 as a regent at the University of Glasgow. In 1646, he published his Theses Logicae, Metaphysicae, Physicae, Mathematicae et Ethicae (see Gellera, 2012). Having privately studied law during his years of regency—and thus coming to law as an academic, from a philosophical background (Wilson 2011: 38)—he was admitted to the bar in 1648, before sitting as a judge from 1657 onwards. During the years 1659–1661, Stair had been working on the first draft of his major work, The Institutions of the Law of Scotland (1st edition in 1681; 2nd edition in 1693). After the Restoration, in 1661, he was nominated as a judge in the Court of Session, which he was to preside over from 1671 to 1681. A political refugee in the Netherlands in 1682, having matriculated at the University of Leiden, where some luminaries of Dutch law were teaching, he published his Physiologia Nova Experimentalis in 1686 (reviewed by Pierre Bayle in Nouvelles de la République des Lettres as early as December 1685), in which there is little ‘new’ or ‘experimental’. He returned to Scotland in the wake of the Glorious Revolution and was again president of the Court of Session.
(3) In order to facilitate reading, spelling in all quotations from Stair’s second edition of the Institutions (1693) has been modernized.
(5) Major sources of the Institutions, along with Hugo Grotius, are Petrus Gudelinus and Arnoldus Vinnius, as Adelyn Wilson has shown in her thorough examination of Stair’s art of citation: ‘Both Gudelinus and Vinnius were trying to balance a study of the intellectual analyses of Roman law by the great legal humanists with the needs of contemporary practice. The similarity in their aims may have been a significant factor in Stair’s selection of these works as sources’ (Wilson 2011: 129). Although there is some intellectual affinity between Stair and Samuel von Pufendorf (Campbell 1954), the timeline of Stair’s writing is hardly compatible with a direct access to Pufendorf’s work (Richter 2003).
(6) Stair elaborates on the distinction between ‘positive’ and ‘moral’ commands in Vindication of the Divine Perfections, 129–131.
(8) ‘This natural law is also called equity from that equality it keeps amongst all persons’ (I.1.6).
(10) A ‘paction’ is ‘the consent of two or more parties, to some things to be performed by either of them’ (I.10.6).
(12) MacCormack (1977: 160–4) considers that Stair’s typology is a ‘simplified version’ of Grotius’ division of utterances about the future (De Jure Belli ac Pacis, ii. 11) by which intentions may be expressed: declaration of intent; imperfect promise (pollicitatio); the highest degree is the complete promise or intention to confer a right to the other party. However, Stair’s concept of engagement is more elaborated than Grotius’ third degree and promises are only one enactment, although exemplary, of the fundamental capacity to engage.
(13) In his discussion of promises and contracts, Reid uses the term ‘engagement’ (2010: 333 and 336).
(14) ‘It was this classic Will Theory understanding of the basis of conventional or voluntary obligations that made it relatively unproblematic, I would suggest, for the Scottish courts at the turn of the seventeenth and eighteenth centuries to see an exchange by parties of duplicate documents, each subscribed only by the other, as simply one of the ways in which such obligations might come into existence’ (MacQueen 2015).
(16) As MacQueen & Bogle (2017: 282) have shown, Stair’s analysis of the obligation of promises is in line with Calvinist orthodoxy, according to which a person can be virtuous only through God’s grace.
(17) It is important to note that if in I.3.3 Stair talks about our being ‘bound solely by our obedience to God’ in the case of obediential obligations, this does not prevent him in the next section (I.3.4) from distinguishing between obediential obligations ‘by the will of God immediately’ and ‘by the mediation of some fact of ours’ (for instance, human ‘delinquency’)—which echoes the distinction I have made in the section on ‘The “Influence” of the “Most General Principles” ’ between the source of normative force and the way in which the obligation ‘arises’.
(18) Stair cannot content himself with the ‘vulgar distinction’ between obligations and contracts, which is along these lines: obligations are on one party; in contracts both parties are obliged (1.10.5). This distinction is also to be found in Pufendorf and other authors, and was probably discovered by Stair in Vinnius’ commentary on Justinian’s Institutes (Richter 2003).
(19) In this context, there has been much debate about Stair’s obscure mention of ‘pollicitation’ : ‘We must distinguish betwixt promise, pollicitation, or offer, paction and contract, the difference amongst which is this, that the obligatory act of the will is sometime absolute and pure, and sometime conditional […].’ (I.10.10) For a general discussion of pollicitatio as unilateral consent in late scholasticism, see Gordley (1993), who does not mention Stair. It seems reasonable to consider that Stair borrows the term from Grotius, whom he refers to in the same passage. For Grotius, a pollicitatio is weaker than a promise: it binds the will for the future, without giving the other party the correlative right to enforce it (for a comparison between Stair and Grotius on this subject, see MacCormack 1977).
(20) It is against Stair that Adam Smith rejects the claim that promise-keeping depends on veracity in his Lectures on Jurisprudence (1762–1763), ii, 59–60 (21 January 1763). For a brief discussion of Smith’s view, see Haakonssen 1989.
(22) I thank Stephen Bogle for his invaluable help on several thorny issues in Stair’s legal thought, such as his understanding of ‘equity’, and especially for drawing my attention to the neglected Vindication of the Divine Perfections. I am also grateful to Hélène Pignot for her help on the draft of this chapter.