Legal Theory

Three features stand out in the legal theory of the Scottish Enlightenment: the engagement of the legal profession generally in such theorising; a strong interest in history and law, leading on to investigations of a proto-anthropological and proto-sociological nature; and the move away from an emphasis on legislation to one on development of the law through the formulation of new rules through the decision of specific cases. In all of these there was a complex interplay between legal theory and legal practice. Some of this was common to legal theorising in general in the period; some, however, was distinctive to the Scottish Enlightenment, arising not only out of the particular circumstances of the Scots lawyers themselves (particularly of the bar, the Faculty of Advocates), but also out of certain developments in ethics in Scotland. To explore these features it is necessary to examine the development of thinking about law under the impact of the natural law tradition, focusing not so much on the natural law theories in detail, but rather on the institutionalisation among lawyers of an approach to law that valued natural law theorising in legal education and practice. This chapter will thus examine the intellectual culture that had arisen among Scots lawyers by 1700 and their education, showing how, through the eighteenth century, their training came to privilege learning in natural law in some form or another over an older legal humanism.