by Dr Stephen Bogle, Senior Lecturer in Private Law, University of Glasgow
Contract before the Enlightenment: the ideas of James Dalrymple, Viscount Stair, 1619-1695 was published in March this year by Oxford University Press. It investigates the intellectual impulses which inspired Viscount Stair’s transformative account of the law of contract. In his wide-ranging, Institutions of the Law of Scotland first published in 1681,[1] Stair offers a specific title on ‘conventional obligations’, which includes an examination of contracts, unilateral promises, firm offers, acceptance, and third-party contracts, as well as remedies, followed by separate titles on nominate contracts (loan, mandate custody, sale, hire and society). It is seen as foundational to the law of contract in Scotland. As Martin Hogg said in his pioneering study of Stair, ‘Any understanding of the nature of the Scots law of obligations, including the theory of Scots contract law, must begin with the Institutions of the Law of Scotland.’[2] The book, therefore, offers a fresh examination of what inspired Stair to place the law of contract on a new philosophical basis. This post gives a summary of the book’s central themes. In other words, it tells you six things you should know about Stair’s account of contract law.
1. A powerful analytical and normative framework for contract
In title 10 of Book I, Stair offered his readers a novel way by which to think about voluntary obligations. And when this section is read in conjunction with the opening passages of the Institutions, it is evident that Stair provided a new theoretical framework for the law of contract in seventeenth century Scotland. Drawing upon sources of law which were familiar to his audience, Stair innovated by organising matters around the will and consent of parties, by favouring party autonomy over more restrictive formation frameworks, and demonstrating how to evaluate a proposition of law according to its utility and equity. It may not have been an account which was familiar to his seventeenth century contemporaries, but it has endured as a powerful analytical framework for the analysis of contractual obligations.
It is shown in the book that Stair’s system of assessment – balancing equity and utility – frequently leads him to prefer a more commercial rather than principled solution to a contractual problem. This connects to another development found in Stair’s Institutions; that is, he sought to demonstrate that the underlying principles of private law in Scotland were: the peace of society, the security of property, and the freedom of commerce.
To give the law of Scotland this normative structure was groundbreaking in comparison to existing accounts of private law available to Scots lawyers in the seventeenth century. In this theory, contract was therefore connected to the promotion of commerce within society, which gave the law of contract, according to Stair, a purpose. Which on first appearances may seem surprising given the otherwise restrictive environment of the seventeenth century, but once placed within the context of Calvinist promotion of peaceable commerce and sociable trade for the flourishing of society, Stair’s viewpoint is explicable.
2. Innovation within the Roman Law tradition
One of the key arguments of the book is that although the footprint of Roman law is unmissable within the sources and mindset of seventeenth century Scots lawyers, including Stair, he nevertheless innovated within this legal tradition. This suggests other impulses were acting upon him when he wrote about the law of contract. In taking this approach, the book explains how Stair drew upon non-legal sources to construct a new framework. In doing so, the book also attempts to make connections between Stair and 18th-century writers in Scotland, as well as in Europe, who adopted a similar style of thinking when it came to the purpose, nature, and structure of private law within a modern society.
To detect Stair’s intellectual influences, Contract before the Enlightenment adopts a close reading of the concepts, terms, and citations he used in the Institutions. Along with this, an integrated analysis of Stair’s written works, including his theological treatise, is undertaken, which is used in conjunction with a contextualisation of Stair within the rich intellectual context of mid-seventeenth century Scotland. On this basis, it is demonstrated that Stair drew from – what appears to us today – an eclectic mix of sources and ideas: medieval philosophical theology, Aristotelianism, Calvinism, numerous seventeenth century jurists, and the natural law theorist, Hugo Grotius.
In title 10 alone, Stair said that contracts are concluded by the will of parties, which was realised through external acts, such as writing or transfer, but that was merely the embodiment of the primary trigger – the will. He therefore said a nudum pactum was enforceable in Scots law although centuries of learned legal writing said otherwise. Promises were, in theory, enforceable regardless of whether the recipient was aware of it. Private law was structured around interpersonal duties and not property law or status. This collection of principles allowed Stair to reshape the conventional description of Scots customary law and, indeed, it is unique when compared to contemporary natural law accounts of contract law offered in the seventeenth century.
3. A distinctive path for Scots contract law
The outcome of this was to set the law of contract in Scotland on a distinctive path. Of course, Contract before the Enlightenment is only the start of the history of contract law in Scotland. It speaks to early developments within the making of the modern law, but stops around the 1720s[3] Another conclusion is that the immediate reception of Stair’s ideas by his direct colleagues and subsequent jurists was mixed if not muted.
As the book argues, it was not the lawyers but rather the moral philosophers who continued the style of jurisprudence which Stair utilised in the Institutions. For the most part, at least until Bankton’s Institutes, published in the 1750s, there was very little to suggest that Stair’s system had jettisoned the traditional Roman law arrangement of the law of contract and familiar notions of contracting.
Yet it is unmistakable that contractual thought in Scotland is distinctive, and it has been something which comparative lawyers have been interested in since the early 20th century.[4] Its individuality is not necessarily problematic, as this is about arrangement and concepts rather than implementation and practice. While the story is about how Stair struck out on to an individual path, it must be stressed that this path was guided by the needs of commerce and the requirements of equity.
4. Stair, Grotius, and Calvinism
It is also evident that Stair’s characterisation of the law of contract was shaped by Calvinism. Previous studies of Stair have spotted the influence of Grotius upon the Institutions. Several chapters in the book therefore carefully examine the relationship between Grotius and Stair when it comes to contracting. Grotius evidently gave Stair a model of natural law thinking which impressed him. However, Stair departed from Grotius in several key places, i.e., for example, in concluding that a promise without acceptance was enforceable, which suggests Stair had reasons for departing from Grotius.
On that point, the book argues that in some ways, Stair attempted a Calvinist natural law description of the law of contract that reworked Grotius’s approach, introducing subtle but significant differences. Nonetheless, both laid great stress upon the freedom of individuals to contract. Something which is notable and revealing of a pro-commerce attitude at the foundation of Stair’s depiction of contract law.
5. God and Contract
Neil MacCormick asked if Stair’s system could work without God. He suggested it could, albeit it would not be recognisable to Stair.[5] In his significant study of Stair’s contractual thought, Martin Hogg remarked that for Stair his contract theory would not work without God given that it was at the heart of his vision of law. But, importantly, Hogg notes, a non-theistic version of Stair’s contract theory is perfectly feasible for contemporary Scots contract law.[6]
As this book establishes, Stair’s conception of freedom of contract was set within the context of church and state politics, and his Calvinist viewpoint regarding the boundaries of each. For Stair you had the freedom to create an obligation upon yourself – it was up to you to choose. However, the choice was made within a world where every person was understood to have a specific calling to bring glory to God through their earthly actions. The freedom was therefore a freedom to contract in a manner which would bring glory to God.
Contract before the Enlightenment argues Stair did not wish the church to legislate on this question. It was for the individual to decide according to his conscience. However as is also demonstrated, mid-to-late seventeenth century Scots were surrounding by fine-grained instructions about how they should use their liberty – from catechisms to casuistry literature to pulpit preaching, there was instruction on how one’s earthly affairs, including trade and commerce, should be conducted in a Godly manner.
Importantly, you often find within this style of Calvinist instruction an attitude to contracting which is conducive to a capitalist style of commerce. Indeed, as Gordon Marshall demonstrated many years ago, for a Calvinist ‘obedience to God, serving him in one’s calling or trade as well as in prayer, is therefore commended manner of increasing one’s wealth. Diligence in lawful callings is, in short, the duty of all Calvinists.’[7] Arguably, therefore, using your liberty to contract and to, hopefully, increase your wealth was, if done carefully, bringing glory to God.
6. Stair and the Scottish Enlightenment
Stair’s approach to natural rights, contract and liberty connects to how many eighteenth-century moral philosophers discussed such things. Specifically, the book interprets Stair’s natural law theory – his new philosophical basis for the law of contract – as an early example of natural law jurisprudence.[8] Inspired by Grotius, like many eighteenth-century moral philosophers, Stair sought to give the law a rights-based structure, albeit his viewpoint was from that of the duty/obligation imposed rather than the right held. However, in constructing the law of contract around the will and aiming towards commercial flourishing, Stair shares much in common with those who wrote about natural law in the eighteenth century in the style of natural jurisprudence.
On Knud Haakonssen’s interpretation of natural jurisprudence, this manner of natural law writing divided duties into those owed to God, ourselves, and others.[9] It utilised Roman Law and juristic concepts, such as rights, duties, property, and contract, to provide a practical explanation of natural law’s realisation, particularly in terms of what we owed to others. It was pragmatic and concerned with how to arrange duties in a coherent manner.
It provided, for the most part, a natural law theory which was complimentary to Roman Law concepts, as well as the political structure of modern eighteenth century states in Northern Europe. And it placed private law at the heart of civil society. As the book concludes, this is what Stair was able to do for the law of contract, and indeed, private law more generally. He gave private law an account which was, for the seventeenth century, modern, robust and, in time, highly influential.
*Order Contract before the Enlightenment online at https://global.oup.com/academic/ with 30% promotion code AAFLYG6
[1] James Dalrymple, Viscount Stair, Institutions of the Law of Scotland (Edinburgh: Andrew Anderson, 1681), a second edition was published in 1693.
[2] Martin Hogg, ‘Perspectives on Contract Theory from a Mixed Jurisdiction’ (2009) 29 (3) Oxford Journal of Legal History 643, 648.
[3] For a landmark new study of the history of contract law in Scotland, see Hector L MacQueen, ‘Contract and Commerce’ in Jonathan Hardman, Alisdair D J MacPherson and Adelyn L M Wilson (eds.), Bell and Beyond: The Development of Commercial Law in Scotland, vol 1 (forthcoming, EUP).
[4] Hector L MacQueen, ‘Scots Law and the Road to the New Ius Commune’ (2000) 4 (4) Electronic Journal of Comparative Law available at <http://www.ejcl.org/ejcl/44/art44-1.html.
[5] ‘Stair and the Natural Law Tradition: Still Relevant’ in Hector L MacQueen (ed), Miscellany Six (Edinburgh: Stair Society, 2009) 1-10.
[6] Martin Hogg, ‘Perspectives on Contract Theory from a Mixed Jurisdiction’ (2009) 29 (3) Oxford Journal of Legal History 643, 651.
[7] Gordon Marshall, Presbyteries and Profit: Calvinism and the Development of Capitalism in Scotland, 1560-1707 (Oxford: Oxford University Press, 1980) 103. I am indebted to Professor MacQueen for bringing Marshall’s book to my attention.
[8] For a more extensive discussion of this interpretation see, Stephen Bogle, ‘Morality before the Enlightenment: an interpretation of Stair’s natural law theory, c. 1681’ Journal of Scottish Philosophy (forthcoming, 2023).
[9] Knud Haakonssen, ‘Natural jurisprudence and the identity of the Scottish Enlightenment’, in Ruth Savage (ed.), Philosophy and Religion in Enlightenment Britain, (Oxford: Oxford University Press, 2012) 258–76.
