2018 Selden Society lecture – Professor Hector MacQueen on Private law’s revolutionaries

2018 Selden Society lecture – Professor Hector MacQueen on Private law’s revolutionaries


Good evening ladies and gentlemen and
welcome to the second Selden Society lecture for 2018. Before the formalities
commenced could I ask you to either turn off or silence your mobile phone. Tonight
we are honoured to have with us Professor Hector MacQueen one of Scotland’s most
outstanding academic lawyers. He is Professor of Private Law at the
University of Edinburgh having recently returned to that post after a seven-year
secondment as a Scottish Law Commissioner. He has a treasure trove of
material which he has written. I stopped counting at 30 books which he has
written or co-written and I did not even attempt to count the number of journal
articles, they go for pages. His research and teaching has focused on three major
areas, the history of law, the private law of obligations and intellectual property
and he has pursued those interests at universities which include Edinburgh,
Utrecht and Cornell. He is a fellow of both the Royal Society of Edinburgh and
the British Academy. Now all that I have said can be found by accessing online
biographies but that can only take you so far with people like Professor
MacQueen. So I investigated his Twitter feed to find out more about the man. The
feed resonates with a pride in all that Scotland is. I noticed that more recently
there has been a concentration on Scottish cricket which has something to
celebrate unlike Australian cricket they’ve actually been winning matches.
There have been a few obtuse references to Brexit so I can’t really tell what
he thinks. But earlier this month considerable attention was given to a
recent destructive weather disturbance called
storm Hector which he seems to have a adopted.
Tonight Professor MacQueen will storm through the debate about the development
of private law and whether we should think of it as evolutionary or
revolutionary. Professor MacQueen. [APPLUASE] Thank you very much for that kind introduction.
One never knows what one is doing on social media. Now I’ve discovered that
it’s providing ammunition for introductions I may well drop out of it
altogether. Thank you also for the honour of the invitation. I’ve been a member
of the Selden Society for a frighteningly long period of time. I
never thought I would end up giving a Selden Society lecture
never mind in Queensland so it’s quite an honour for me. An experience that
I knew I will never forget and I’m extremely grateful to you for coming
along to listen to the thoughts that I have. Which I hope will prove to be of
some interest and the thing that struck me as I was looking at the
text I had prepared was that there wasn’t much reference to Australian and
I regretted that so I’m more than eager to hear of any thoughts that may arise
from an Australian perspective on some of the things I have to say especially
in the second half of the lecture. My starting point is a book that was
published almost as long ago as I became a member of the Selden Society. Herald
Berman’s Law and Revolution. The formation of the Western legal tradition
published in 1983 and at that time I was completing my PhD thesis on medieval
Scots law and thought at the book Berman had produced was exactly the
kind of legal history I could not and would not ever write because his range
was epic. With a range of knowledge and coverage geographical as well as
chronological that was extraordinary but at the same time his tone was elegiac
an age or an era in law was ending in Berman’s view and with that backward-looking
regretful perspective he could identify not only the characteristics of that
passing era but also what had been good about it and what therefore ought to be
preserved if possible. Now the era ending for Berman in 1983 was that of a
Western legal tradition that had begun he said in the 11th century of the
Christian era. Private law had since then been transformed by the radical
centralisation and here I’m quoting “and bureaucratization of economic life of
which socialism in one form or another including state controlled capitalism is
an aspect or a consequence”. This could be seen for example affecting contract, tort,
family and social law and also in criminal law. All of these had previously
been components not just of the law of individual states but of the basic modes
of characterisation of law forming a common bond amongst the various legal
systems, again these are quotations one of these common bonds had been that in
all Western legal systems civil obligations are divided either expressly
or implicitly into contract, dealing, tort and unjust enrichment quasi-contract. Now
the ten basic characteristics that Berman identified as forming the
Western legal tradition law he thought still retained four in 1983. These were
its autonomy from other social institutions such as politics and
religion and other scholarly disciplines, and next its existence as a domain of
professional specialists, three being tort and specialist centres where
legal institutions were conceptualised and systematised and four the existence
of a meta law of legal learning by which legal institutions were evaluated
and explained. The six other characteristics according to Berman
quote again “have been severely weakened in the latter part of the 20th century
especially in the United States”. First law had ceased to be treated as forming
a coherent whole. Secondly belief in the development of law through time by
reinterpretation of the past was now portrayed as merely an ideological
belief. Further change in the law was seen not as a response to its internal
logic or as resolutions of tensions between legal science and legal practice
but as responses to other external forces. Law had come to be seen not as
transcending politics but rather as a means of effectuating the will of those
holding political authority. The state increasingly monopolised the law pushing
aside additional or other sources of authorities such as the church or
autonomous mercantile communities while denying individuals access to
alternatives such as international law. Finally law had become wholly
subordinate to revolution whereas in Berman’s overarching theme the Western
legal tradition had been successively challenged by great revolutions
stretching back to the 11th century but had re-emerged each
time reshaped but also strengthened and not fundamentally altered until the way
he saw happening in the 20th century. Now Berman maintained that there were
six great revolutions first the papal revolution or reformation of 1075 to
1122 next the Protestant and especially the Lutheran, German
Reformation I’ll get to Calvin later the Lutheran German Reformation of the
sixteenth century what he called the Calvinist English Revolution of the 17th
century that was one of the bits in the book that annoyed me because the Scots and
indeed the Irish and the Welsh were all in that revolution up to their necks as
well. Fourthly the American revolution of 1776. The fifth the French revolution of 1789 and
finally the Russian revolution of 1917. And the 1983 book dealt
with the first of these the papal revolution of the 11th century. In a
further volume published in 2003 he treated the second and third the
Protestants Reformation, the Calvinist English Revolution in detail while also
briefly discussing in an introduction recapitulating his overall thesis about
law and revolution the American French and Russian revolutions. Aged 85 when this
second book came out he may have sensed there would not be enough time left for
him to complete a third. Although an unfinished manuscript was apparently in existence
when he died in 2007. In each of these great revolutions Berman saw certain
patterns or regularities. Each he said marked a fundamental rapid violent and
lasting change in the social system as a whole.
Each sought legitimacy in a fundamental law, a remote past, an apocalyptic future.
Each took more than one generation to establish roots. Each eventually produced
a new system of law embodying some of the major purposes of the revolution and
changing the Western legal tradition but ultimately remaining within it. These
successively renewed systems of law each arose in the context of what was
conceived as a total social transformation. The preceding law or
legal system had failed to respond in time to ongoing social change possibly
through not keeping sufficiently in balance its twin purposes the
preservation of order on the one hand and doing justice on the other. The
revolutions represented the demand for justice prevailing against the
established order. Berman did not hesitate to deploy Thomas Kuhns
structure of scientific revolutions. Shifts from an older but now
demonstrably inaccurate paradigm to a new one that better fits or explains the
now known facts. In law said Berman the old justice
may have to give way to a new one. He went on to argue that none of the
revolutions could completely displace the old law whether immediately or in
the longer run. Frequently the revolution based its appeal or its ideology at
least partly around ideas of a return to a better past state of things. Further he
said eventually each of the great revolutions made its peace with the
pre-revolutionary law and restored many of its elements by including them in a
new system that reflected the major goals, values and beliefs for which the
revolution had been fought. And thus the papal revolution established the
distinct legal spheres of church and state but on a biblical basis. The claim
of the church’s expansive and expanding legal system to ultimate superiority
then virtually forced the state to develop its own system in response. Then
the Protestant Reformation re-emphasize the primacy of scripture and maintained
the division of church and state. Lutheran reformers accepted that the
state prevailed over the church but Calvinists did not. For them there were
two separate spheres and the state was subject to the church. But in all
Protestant countries papal jurisdiction was completely displaced and in that
process the law overall became more secular with the church’s claims being
squeezed and finally whether Lutheran or Calvinist the reformation gave high
status to the place of the individual who had a God-given free will regulated
primarily by conscience. Next the American and French Revolutions firmly
pushed aside any issues of government not only monarchy and aristocracy but also
all organised religion. The general rule of enlightened, rational and secular
humanity organised as a state was promoted instead. The emergent liberal
democracies were then countered in their turn by revolutionary socialism and
the communism that in 1983 was still seemingly dominant in the Soviet Union.
But in none of these great shifts even the last was the past wholly obliterated
thus in the Soviet Union the state used law extensively not only to plan and
control economic activity but also to achieve the egalitarian goals of the
revolution and to strengthen the cohesion of family, neighbourhood and
workplace and even though the socialist revolution ultimately failed in the
1990s Berman argued in 2003 that Soviet law had left its mark in the
Western legal tradition through general acceptance of a much increased rule for
the state in economic and social relationships. Quote “not just in Russia
but throughout the West the law of the state has come to play the role of
parent or teacher in nurturing attitudes officially considered to be socially
desirable”. In sum then for Berman in the whole history of the Western legal
tradition was one of interaction between revolution and evolution. But he
emphasised the impact which revolution had upon the law his focus was on that
and not so much in revolution from within the law itself. He conceded that
one of the key elements in his Western legal tradition was law seeing its own
change as a response to its internal logic or as resolutions of tensions
between legal science and legal practice but he specifically rejected the idea
that law changes incrementally or evolves gradually over time. Rather he
thought it changed radically at specific periods although not necessarily all at
once. As a result of forces external to the law but these periods of legal
change were not quite like, now this is my metaphor not Berman’s were not quite
like the extinction of the dinosaurs when the earth collided with a gigantic
meteorite. In Berman’s thinking the dinosaurs got back onto the feet that
remained to them post catastrophe dusted of themselves down in a
environment and carried on in renewed and different forms. Now I don’t want
this evening or indeed at any point in my future career to engage in a
comprehensive analysis of Berman’s thesis and pronounce either for or
against it in a whole or even in part. But it’s helpful in approaching the
issue of revolutions in the law of obligations at least to pose some of the
questions Berman’s work seems to suggest. Is there such a thing as the Western
legal tradition and if so did Berman characterise it correctly. Does
fundamental change in law follow only from revolution outside the law? Does
revolution necessarily involve physical violence and the accomplishment of
change? How was the paradigm shifting in Kuhn’s scientific revolutions achieved
for example? Then as this last question suggests are the revolutions identified by
Berman the only ones of significance for law? What about for example the print
revolution of the 15th century. Perhaps foreshadowing other
communications revolutions arising later from the regularisation and widening
availability of postal services followed in fairly rapid succession by telegraphy,
telephony, broadcasting and the Internet. What about the Industrial Revolution and
the transport revolution which arose not only from mechanisation but also from
canals, railways, the macadamisation of roads and the development of powered flight?
From the internal perspectives of the law itself one might ask where does
Roman law fix as one might have thought a crucial base for the Western
legal tradition. Berman did address this question. In his view Roman laws place in
the Western legal tradition arose only because of its rediscovery in the late
11th century and because there after both church and state adopted it for
their own ends. In between the fall of Rome in 476 and the 11th century
Roman law lapsed into virtual disuse or to renew my earlier
metaphor it was a dinosaur killed by the meteorite.
It was the medieval lawyers and jurists who in Jurassic Park style recovered the
dinosaurs DNA from its physical remains and then transformed it into a living
system again capable of deployment within both current ecclesiastical and
secular law. Before then there was no Western legal tradition in Berman’s
definition of the concept. It was the medieval not the Roman
jurists who refer to Roman law as the corpus iuris the body of the law and who
accordingly interpreted it as a whole. There are however some difficulties with
this exclusion of Roman law in its own right from the Western legal tradition.
While the classical Roman lawyers of the 1st to 3rd centuries may not have
specifically described their law as a body they could certainly see it as a
system or as a whole lending itself to general description and analysis as such.
Ulpian who wrote around the beginning of the 3rd century gave us this description
of what a complete use i.e. right or law was about. Either of acquiring or of
keeping or reducing so the question is either how something may come to be
somebody’s or how a person may keep a thing or keep his use his right or how
he may alienate or lose it. Ulpian further detected three basic precepts or
principles underlying or underpinning the law and here the quote is from Ulpian,
“to live honourably or honeste not to harm any other person to render to each his own”.
Ulpian also formulated the distinction between public law and private law.
Public law is that which respects the establishment of the Roman Commonwealth.
Private that which respects individuals interests for there are some things
which are useful to the public and others which are of benefit to private
persons. Now perhaps a few decades before Ulpian sometime in the middle of the
second century another jurist Gaius could say that all law related to
persons, things or actions and then structure his Institute’s most probably
a student textbook or course around this idea. Within that structure Gaius
subdivided the category of things between corporeal and incorporeal and
obligations formed part of the latter subdivisions. I hope you can see from my
diagram. In terms of Gaius treatment obligations also shaded off into the
last of the laws divisions actions. The characteristic feature of an obligation
was that it was a claim to a performance from another person which might that did
not necessarily also involve a claim to a corporeal thing. Obligations themselves
were further divided into those arising from contract and delict. In his
Institutes Gaius also ignores this division did not cover all the
obligations known to the law in particular that of repairing a mistake
in payment. In another work of which we know only through Justinian’s Digest
Gaius went a bit further. Obligations he said arise either from contract or from
wrongdoing or by some special right use again from various kinds of cause. Now
around four hundred years later in the 6th century Justinian’s Institutes
explicitly dedicated to young law students gave a fourfold division of
obligations contract, quasi-contract, delict
and quasi delict. However Justinian maintained Gaius fourfold
classification of contracts those arising from handing things over. The
real contracts those arising from words the verbal contracts or stipulation,
those arising from writing the literal contracts and finally those arising from
simple consent. Justinian’s Institutes one could add was also
structured as Gaius’s book had been on the basis of persons, things and actions. What
distinguished contracts from other obligations was never made clear by
Gaius or indeed Justinian. Gaius may have drawn on the Aristotelian distinction
between voluntary and involuntary transactions from a scattering of texts
through the digest we can tell that by the classical period of Roman law the
basic idea of contract in its different forms was as an agreement intended to be
binding it with it also being possible in a few cases to make an enforceable
unilateral promise. Agreement or paction was defined as the consent of two or more
persons to the same thing. Characteristically however the classical
juris did not pursue the implications of this general analysis in any great depth.
They threw in tantalising statements such as there being no action arising
from a nudum pactum a bare or naked agreement. Although it might provide a
defence to a claim. There was also the rule that nobody could stipulate in
favour of a third party. The determination that the practice of barter could not be
classified in law as sale trigger the development of innominate real contracts
characterised by exchange of performances where the first performance
had to be rendered before the counter performance became enforceable i.e.
potentially every voluntary exchange of performance which did not already come
under one of the named contracts like sale or hire. As we shall see in due
course these statements and ideas would become critical in the medieval and
later discussion of Roman law. So at least part of the explanation for the
success of Roman law in the medieval period I would suggest counter to Berman
is because it already provided even if it did not fully articulate a persuasive
system within which to think about law. The surviving texts were not just
disconnected pabulum with which the medieval jurors could
begin to build a structure. In particular the basic division of persons, things and
actions has a long history of influence on legal writing across Europe. Now
Berman himself recognised this in his 2003 book. There he argued that use of
the division by German Protestant jurists of the 16th century in order to
systematise the treatment of the law as a whole was the crucial final step in a
shift away from the Scholastic approach of the Middle Ages. A general legal
science was achieved by elaboration of the division through deployment of the
Aristotelian analysis of the causes, come back to that later.
Berman further argues that in the 16th century the focus of juristic attention
shifted from the Digest to Justinian’s Institutes and began also to embrace non
Roman positive law and certainly the division of persons, things and actions
became the basis for instructional books on national laws across
continental Europe and indeed in Scotland until the end of the 18th
century and following the example of Justinian these books were usually
entitled Institutes or Institutions. Now the use of persons, things and actions as
the basis for writing about the law as a whole included England. As early as a
thirteenth century Henry de Bracton explicitly deployed the division as the
basis and structure of his book the Laws and Customs of England.
Now while despite its title Coke’s 17th century Institutes did not follow the
institutional pattern. It was used in John Cowell’s Institutiones iuris anglicani
published 1605 and also influenced both Matthew Hale’s Analysis
of the Civil Part of the Law published in 1713 but written before 1676 the
year of Hale’s death and Thomas Wood’s Institute of the Laws of England first
editions 1720. Persons, things and actions were finally used again in Blackstone’s
commentaries first published between 1765 and 1769. And what
this means is that Gaius was someone who had succeeded in establishing a way of
presenting the law that over a very long period of time could hold good or at
least be thought useful for teaching students, writing text books and
eventually as we shall soon see preparing systematic legislative codes.
And this leads me to the reference and the title of this lecture at least part
of it. Authors as possible revolutionaries in law. First we don’t
know of anyone who anticipated Gaius and his thinking about the overall structure
of the law and how to present it and he seems to have been the first to
distinguish between property and obligations and within obligations
between contract, delict and other kinds of obligation. How did he manage to
achieve this possibly revolutionary and above all enduring scheme? Not in the
context of a political revolution of the kind discussed by Berman. So far as we
can tell it occurred simply because an author as a teacher had to think about
how to present the law in a way that could be understood by the reader or the
student coming to the subject without prior knowledge or at least very little.
Even the author who wanted only to present the rules had to think about how
to begin and how to go on and recognise it would not be enough to reel off a
list of rules without reflecting at least a little on what connected one
rule to another and in this perhaps as already suggested use could be made of the
existing thinking of Greek philosophy. What I want to turn to now is I
foreshadowed a moment or two ago is civil codes and revolutions. As a distinct set
of observations arising from Berman’s thesis. It relates to the book he didn’t
sadly live to write on the French and the American Revolutions. Now in a
striking contrast one crucial consequence of the French Revolution
but not the earlier American one was a civil code for the New Republic. The
French code was undoubtedly a deliberate departure from the ancien régime, albeit
one drawing heavily on the European legal tradition.
Berman sees it as reflective of a deist belief system in which God had provided
man with powers of reason to determine their own welfare.
But codification was also to provide a less exalted more nationalistic
model for many other reconstructed or newly emerging states in the 19th
century as when Belgium and the Netherlands were liberated from French
hegemony in 1830 and 1838 respectively or even more strikingly following the
unification of Italy and Germany later on in the 19th century. Greek aspirations
towards a civil code although not completely realised until after the
Second World War seem also to have begun after the country
gained independence from Turkey in 1827. Even where the stimulus of nationalist
fervour inspired by newly won independence or unification was lacking
19th century continental European states seem to have seen codes rather as their
20th century successors saw airlines an essential badge of
contemporary stated hence codification Portugal 1867, Spain 1889 and after
decades of preparation Switzerland in 1907. Now the 20th century saw at least
three complete recodifications in Western Europe, in Italy 1942, Portugal
1966 and the Netherlands in 1992. I know a little about the origins of the
current Portuguese code other than that it follows the German model but the new
Italian code began as a project in Mussolini’s reconstitution of the
country after the first world war or the work towards a new Netherlands code
completed in 1992 commenced an immediate aftermath of the Second World War as
part of the reconstruction of a country shattered by years of war
and foreign occupation. And the civil codes have not lost their symbolic
standing as a signal of statehood for newly independent or freshly
starting states is shown very clearly by the ongoing creation of codes in the
former Iron Curtain countries since the fall of the Berlin Wall in 1989 and the
collapse of the Soviet Union in 1991. For example Russia between 94 and 2006,
Lithuania in the year 2000, Estonia in 2002, Ukraine in 2004, Hungary 2014 and the
Czech Republic in the same year. The interesting exception I think is Poland
which just had its present civil code since 1964. There’s a separate story there
which I hope to pursue some other occasion. Codes like the law books of the
Roman medieval and early modern eras are a way of presenting the law for ease of
understanding and used by the citizens affected by them. Even the most recent
examples in the formerly communist world follow the ancient Gaian division of
persons, things and actions. Although since at least the German code in 1900
the last is often hived off into separate codes of procedure and remedies.
The focus of the codes is the individual human being as a bearer of powers, rights
and duties from conception to death in relation to the self, other persons and
objects in the surrounding world and in this they reflect the secularisation of
law identified by Berman as a legal transformation which followed the
reformation and was completed with the French and American Revolutions.
Subsequent codes often if not invariably arisen as part or in the aftermath of
fundamentally significant political events. Not necessarily revolutions
however but also what the codifers may have seen as liberations,
reconstructions or at least declarations of identity or renewal within a larger
whole. Now the question that arises for me is why the American Revolution did not
lead to such a codification or perhaps put it another way why the later French
Revolution did. It maybe that whereas France became a unified republic the USA
became a federal one in which private law the classic territory of the code
remained in the hands of the constituent states. The interesting thing about the
United States the individual states is that there had already been codes and
some of the pre-revolutionary states as early as the 17th century. A codification
movement developed after the Revolution based on the idea that the new
sovereignty of the people required amongst other things clear limitations
upon judicial power to determine the law. Civil codes in Louisiana and Quebec
helped to maintain each jurisdictions distinctive legal identity and
traditions within the much larger and typically non-codal federations of
the USA and Canada respectively. The first Louisiana code in 1808 was at
least partly reactions the USA’s Louisiana Purchase of 1803 while the
first Quebec code of 1866 immediately preceded the confederation of Canada in
1867. Pressure for codification within the USA gained new momentum in the early
part of the nineteenth century as a response to the flow of cases and the
fragmentation of law in the rapidly expanding republic. In the second half of
the century codes were actually adopted in Georgia, the Dakotas, California, Idaho
and Montana. And these codes can often be linked to each territories recognition
as a state within the federation. Several were influenced by comprehensive draft
civil code for New York published in 1865 but in the end not adopted there.
The draft produced by commissioners led by David Dudley Field was structured as
persons and things because actions had already been dealt
with in a separate code of Civil Procedure enacted in 1848. The American
historian Lawrence Friedman suggests that codification succeeded in the USA
only in quote “sparsely settled states in a hurry to ingest a legal system” and
again quote “something of a civil law tradition” as well as a local bar without
vested interests in keeping the old rules. Interesting thoughts. Friedman is as
some may know historian very much against codes and restatements and other similar
devices. Beg your pardon with this. So it’s not
quite Berman’s enlightened revolution in the United States whether codes are
seen as secular expressions of the power of human reason or as a means of making
the law known to the people in general or of restricting judicial power over
the law. There is however nonetheless a significant contrast in legal experience
of two revolutionary republic’s where the revolutions were driven by similar
political ideals, the single code for the whole state in France against late and
scattered instances of codes in a few of the federation’s constituent parts the
United States. Has there ever been a revolution in the law of obligations?
That’s my final question. One candidate for consideration is the emergence of a
general law of contract in the 16th and 17th centuries and the displacement of
that fourfold division of contracts in Roman law which I referred to earlier as
a starting point for legal analysis of this subject. The sixteenth century
Spanish scholastics synthesis sorry I knew I would have
great difficulty in getting that one out, the sixteenth century Spanish scholastics
synthesis of Roman law with Aristotelian and Thomist thinking was crucial in this.
Berman too noted the emergence of a general law of contract as an aspect of
the overall systematisation of law in the period in which protestant jurists
in Germany such as Mattheus Wesenbeck also played an important
part. The generalised approach to contract established in this period
still holds good for all the major European codes. My starting point here
however is Scottish legal history. I’m afraid you are not going to escape from
that this evening. This is James Dalrymple Viscount Stair
who published his Institutions of the Law of Scotland and 1681 with a
second edition in 1693. It’s an extraordinary work. Certainly in
the Scottish context as I will suggest later at least noteworthy in the
European one it was quite different from anything published before in Scots law.
Now Stair’s exposition used the institutional scheme of persons things
and actions but dealt with the first of these almost entirely in the context of
persons relations with and obligations to one another
i.e. between husband and wife, parents and child
the incapable and their guardians. His principal concern was with the rights of
persons i.e. things and with the constitution, transfer and extinction of
those rights. Before he became a lawyer Stair taught philosophy at Glasgow
University and traditional Aristotelian thought is apparent in all his legal
writing indeed it’s key part really of what made it original from a Scots law
perspective. For Stair positive law flowed from natural equity albeit only
imperfectly. The principles of equity that were the
efficient cause are Aristotelian language of rights and laws were first
man’s obedience to God, second the freedom of man otherwise which however
being in his power, thirdly man might constrain by voluntary engagement with
others. The principle of obedience produced those positive law obligations
not resulting from voluntary obligation i.e. what we would now call the law of
delict or tort and a law of unjustified enrichment or
restitution as well as the family law topics already referred to.
Individual freedom led to personal liberty of action outside these
obediential obligations as Stair termed them but voluntary obligation a
voluntary engagement produced the law of promises and contracts which Stair
called conventional obligations. He rejected the fourfold Roman division.
Unlike the distinction already drawn between obediential and conventional
obligations Stair argued an Aristotelian mode that the fourfold distinction
insinuates no reason of the cause or rise of these distinct obligations as is
requisite in a good distinct division. He subsequently gives over a whole chapter
to obligations conventional by promise, paction and contract in which he further
clearly rejects as unnecessary the traditional Romanist division of
contracts into four kinds either perfected by things, words, writ or sole
consent. Every paction said Stair “produceth action”. All pactions and
contracts being now equally efficacious the key distinction between them lay in
the gratuitousness or otherwise of the transaction. Stair treated the common
requisites and properties of contracts as deeds of the rational will such could
not be entered by those lacking the power of reason such as and I quote
infants, idiots and furious i.e. insane persons rather than just angry ones and
those affected by fear, drunkenness, disease or error in the substantials of
what is done. The act of contracting must be of purpose
to oblige in relation to things within the party’s powers. Contracts of
impossibilities and in things unlawful or void. Stair also discussed equality of
exchange abatement of price and the principle of mutuality or reciprocity in
onerous contracts. And in all this he was providing a Scottish contribution to a
shift in thinking which has been going on across Western Europe for some time.
The pre-existing obstacles and the Roman texts were not limited to the fourfold
division of contracts. The famous statement against the enforce ability of
the bare or naked paction seemed to suggest that a contract had to fit into
one of the types recognised by law or otherwise fail unless perhaps it was an
innominate real contract of exchange or one of the recognised forms of unilateral
promise. But the canon law in the Middle Ages had not applied the principle
against bare pacts on the basis that scripture abjured falsehood. Stair
himself noted that the canon law had “taken off” the exclusion of naked
pactions and his “every paction produceth action” was in effect an
abbreviated translation of the ‘pacta quantumcunque nuda servanda sunt’
pacts are to be kept however bare which is actually found in the decretals of
Pope Gregory IX promulgated as early as 1234. But the canonists held
that to bind promissory words had to be uttered with serious intent. Stair’s “of
purpose to oblige” and in any event ecclesiastical courts claim jurisdiction
in these matters only if the undertaking had been supported with an oath invoking
spiritual sanctions for non-performance. Now as Berman notes by the mid 16th
century there was significant doubt amongst at least some civilians in the
protestant lands about the scope of the prohibition upon naked pactions and
secular courts. Meanwhile in Spain Catholic scholastic theologians were
fusing the philosophy of Aristotle and the 13th century theology of Thomas
Aquinas to produce a rational vision of natural law in which promise keeping was
a mark of the Christian life reflecting the virtues of fidelity keeping one’s
word, liberality the sensible giving away of resources to chosen others and
commutated justice the equivalence of exchanges so that no one was enriched at
the expense of another. In the 17th and later centuries
the great Dutch jurist Hugo de Groot usually known as Grotius and
other northern natural lawyers would be conduits by
which this originally Catholic natural law thinking was transmitted to
Protestants secular legal systems. Now the influence of Grotius and Stair
account of rights is apparent from both internal citation and comparison of the
two men’s work but it is important to know that Stair didn’t always agree with
his predecessor. The most significant example for present purposes is that
where Grotius held that an entirely unilateral promise only became binding
as to his performance upon its acceptance by the promisee, Stair took
the opposite view. It was a topic upon which the Spanish scholastics had also
differed. The view Stair preferred meant for Scots law not only that the
unilateral promise was binding simply by virtue of having been made but also the
undertaking of contracting parties in favour of a third party likewise created
a right for that third party directly. As a result it was not even necessary that
the promisee or the third party be in existence or fully capable in order for
a right to be at least inchoate from the time of its formation by the
promisors. Now Stephen Bogle and I have recently argued this disagreement with
Grotius is to be explained by Stair’s much stricter Calvinism. It would have
been unthinkable for Stair to suggest as Grotius had done that natural laws
basis in human reason meant that it would be possible even if there was no
God. In Stair’s world view the distinction between the obedient obligations imposed
by God and the self-imposed conventional obligations was not absolute. A starting
point for the recognition of conventional obligations were certainly
the moral position with regard to the exercise of individual free will but this
being God-given it too was subject to the obediential obligations flowing from
the will of God. Ultimately conventional obligations were also a obediential.
Like the Spanish scholastics and the other northern
European natural lawyers Stair saw promise-keeping as virtuous.
But he could not give the glory for promise-keeping for undertaking and
performing promises as a virtuous act to man alone for the strict Calvinist man
attained virtue only through God’s grace. Stair’s statement that man gives up his
liberty through a promise or contract quote “whereby God obliges us to
performance by mediation of our own will” that’s wholly in keeping with the
orthodoxy of Calvinist theology. So a promise did not need the promisee’s
acceptance because the promisor’s obligation was owed first and foremost
to God likewise an offer an acceptance there was no requirement the latter be
communicated to the offeror, it was enough that the acceptor had declared an
intention to accept the offer. It was also in this sense that is submitted
that Stair said that the promise and third party right were a revocable even
if the beneficiary didn’t exist. The commitment that was made was absolute in
the eye of an all-knowing God and so could not be withdrawn. Drawing to a
close now, if Stair was a revolutionary in the 17th century and seeking to smooth
the Scots law of contract on from a strictly Romanist character then it
could probably be said even at the time and certainly in the 18th century that
he was a failed one. His contemporaries and most later Scottish writers up to
1750 maintained the fourfold Roman distinction of contracts of the expense
of any more general model. Stair himself had written five chapters on Roman
nominate contracts after his general one. And most significantly he and his
successors found great difficulty in applying the system of nominate
contracts to what were ever more important standard mercantile
transactions. Bills of exchange and insurance were unknown in Roman law for
example yet they were crucial lubricants of international, inter-regional and
intercity trade and credit throughout Europe from the later Middle Ages on.
Stair placed them in the category of innominate contracts of exchange,
bills of exchange where money for money and the contract of assurance where
money or things are given for the hazard of anything that is in danger
whether it be goods or persons. Now a little later William Forbes who’s I
think listed on the on the screen wrote introduced a non-Roman mixed form the
contract he that he called ‘perfect partly by writ, partly by Consent”
within which he placed all in its own the bill of exchange. He made insurance a
real contract presumably because the insured paid a premium for which a
return be forthcoming upon defined events not certain to happen. In the mid
18th century Andrew McDouall Lord Bankton took the view that a bill of exchange
quote “is similar to mutuum i.e. the real contract of loan” but “partakes likewise
of mandate and exchange and as a compound of all three and as something
further peculiar to itself”. It sounds like a very bad exam answer. Insurance on
the other hand is a kind of sale for there by the assured purchases security
to his goods for a certain premium given to the issuers. So Bankton treated the
subject at some length in the same chapter sale i.e. as a consensual contract.
John Erskine writing 1760s also placed insurance as a consensual contract
although one distinct from sale it was he thought an aspect of the location or
chartering of a ship. However Erskine dealt with bills of exchange in a Forbes
like way in the chapter on obligations by word and by writing
portrayed as a form of mandate i.e. consensual but always in writing albeit
informal. Now these conceptual struggles in Scotland came to a sudden
end with the Edinburgh Professors of Scots law, my predecessors of the late
18th and early 19th centuries Baron David Hume and George Joseph Bell
pictured on your screen. They simply bypass the Roman structures in their
expositions and indeed in Hume’s case the idea of any general theory or law of
contract as distinct from contracts. For Hume bills and insurance were quite
straightforwardly particular forms of contract alongside sale, hire and all the
others. Bell however sought to make Scots law fit for a commercial and mercantile
world. To this end he recognised a general law of both contract and
unilateral voluntary obligations and he divided what he called mutual contracts
into sale, hire, agency, maritime, contracts and finally insurance. But the structure of
the law was governed by mercantile functionality not Roman categories. Did
all this amount to a revolution in the law in Scotland or more widely in
Western Europe? James Gordley has suggested that
significance of a general law of contract was largely theoretical and in
Scotland the Tory Baron Hume who disliked theory would probably have
agreed with him if we may judge from the way he framed his lectures entirely in
terms of a series of named contracts. But the Whiggish Bell’s different approach is
of interest here. He wanted a flexible law that could respond in particular to
the changing practices of merchants and traders. The Roman categories had proved
unable to cope with standard kinds of commercial transactions and
relationships in use for centuries and not just the novelties like negotiable
instruments and insurers partnership for example was now something very different
from societas and mandate was not at all like the contemporary agency brokerage
or factoring. A general law of contract for Bell
arching over the particular force by was the means by which the law could keep
moving with the times yet it would not itself become a rigid form by virtue of
its default nature giving primacy to what parties expressly or impliedly
agreed. In these last few paragraphs I’ve been trying to justify my titles
inclusion of merchants amongst the possible revolutionary forces in private
law with their trading activities ignoring or at any rate falling outside
and challenging the scope of the traditional law and
this may also be reflected in the creation of codes of commercial law
alongside but separate from the European civil codes and indeed the
classic example is a Uniform Commercial Code which emerged in 20th
century United States. But whether or not these observations have succeeded in
casting any fresh light on Harold Berman’s ambitious thesis about the
Western legal tradition and the relationship within it between law and
revolution let me finish by observing that our ability to discuss aspects of
law under the umbrella title of obligations is due to an insight
seemingly first achieved by an otherwise obscure Roman jurist called Gaius nearly
two thousand years ago. A legal paradigm still not overthrown. Thank you very much. [APPLAUSE] The Selden Society in Queensland seeks
amongst other things to encourage a greater interest in the history of the
legal system which permeates our society. Professor MacQueen has helped us
enormously tonight by engaging in the type of exposition only the true expert
can provide. He showed us the large picture, the connections and the
progression of the law. He took us on the tour of private law over the last
millennium and we are in his debt. Would you please thank him again. [APPLAUSE] The next Selden society lecture will be
on Thursday the 30th of August when Justice Patrick Keane will speak to us
about Dr Kevin O’Doherty, the Irish convict doctor who attended at the birth
of the baby who became Lord Atkin. Thank you for coming tonight please join us
for refreshments in the gallery.

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