Tijdschrift voor Rechtsgeschiedenis, Vol. 72, 327-57, 2004
32 Pages Posted: 1 Nov 2008 Last revised: 12 Jan 2016
Date Written: November 1, 2008
This article concerns Adam Smith's historical jurisprudence, and his efforts to produce an explanation for why certain civilizations produce certain laws. Smith's historical jurisprudence is based on the idea that a civilization passes through certain 'ages' (determined by its mode of subsistence at the time), and that each 'age' provokes the creation of certain legal ideas. Several 18th-century thinkers were following a similar line of thinking. Smith proceeds empirically, rejecting the rationalizations of his natural law predecessors in favour of data-gathering and causative explanations.
One of his principal sources of data was Roman law: the literature is rich with examples. Unfortunately the law does not always fit Smith's mode-of-subsistence theory. This sometimes results in real intellectual contortions on Smith's part. His treatment of Roman burdens-on-land (servitudes) is an example: he argues that they were originally person-to-person, like contracts, which is manifestly wrong.
These difficulties notwithstanding, it is not a fair conclusion that Smith's historical jurisprudence was 'unworkable'. A fairer conclusion is that completing his task with the aid of Roman law would have been an enormously time-consuming task, but not impossible.
This essay provides the text and translation of Samuel L.B. von Cocceji, Introductio ad Henrici L. B. Cocceii Grotium Illustratum, continens dissertationes prooemiales, Halle 1748, Diss. XII ('Systema de iustitia naturali et romana'), 4.3.6 (ss. 302-305).
Keywords: Adam Smith, natural jurisprudence, historical jurisprudence, Roman law, Cocceius, Cocceji
Suggested Citation: Suggested Citation
Metzger, Ernest, Adam Smith and Roman Servitudes (November 1, 2008). Tijdschrift voor Rechtsgeschiedenis, Vol. 72, 327-57, 2004. Available at SSRN: https://ssrn.com/abstract=1293065