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Adam Smith and Roman Servitudes

By Ernest Metzger


This essay is a preprint of an article that appeared at: Tijdschrift voor Rechstsgeschiedenis, 72 (2004), 327–57.This essay discusses Adam Smith historical jurisprudence and his use of Roman law materials in his Lectures on Jurisprudence. It argues that Smith found it difficult to maintain his theory of legal development in the face of a highly developed body of Roman law literature

Topics: Adam Smith, Roman Law, Servitudes, Scottish Enlightenment
Year: 2005
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    1. (1957). 16 I pass over the question whether it is correct to speak of 'rights' at all in early (or classical)
    2. (1970). 18 In this respect Smith was at a disadvantage, not having the benefit of Gaius' Institutes and in particular Gaius' discussion of the legis actio procedure. On the remedies for enforcement of ancient servitudes,
    3. 28 Smith's remarks on the ages of civilisation are included in many places in his works; some of the more extended treatments may be found in:
    4. (1983). 55 Carmichael determined that moral philosophy (broadly) at Glasgow would consist of lectures in natural theology followed by lectures in moral philosophy based on natural law. Carmichael's contributions to the curriculum are discussed
    5. (1998). 62 On natural and adventitious rights in Smith's system, see Haakonssen, Science
    6. (1999). Adam Smith and the Virtues of Enlightenment, doi
    7. (1992). Adam Smith on Feudalism, Commerce and Slavery,
    8. Adam Smith Out of Context, doi
    9. (1996). Adam Smith Out of Context: His Theory of Rights in Prussian Perspective, in: Natural Law and Moral Philosophy, doi
    10. De officio hominis et civis 1.12.8; Heineccius, Elementa iuris civilis secundum ordinem Institutionum (supra, n. 27), § 392; Arnold Vinnius, Institutionum imperialium commentarius academicus et forensis,
    11. (1993). For the course, Carmichael prepared an edition of Pufendorf supplemented with his own extensive commentary. Carmichael, Supplementa (supra, n. 27). There is a new English translation of parts of Carmichael's commentary together with other writings:
    12. (1988). From Pufendorf to Adam Smith: The Natural Law Tradition in Scotland, in: The Character and Influence of the Roman Civil Law,
    13. Gottlieb Heineccius, Elementa juris naturae et gentium, Venice 1802,
    14. (2000). Grotium Illustratum, continens dissertationes prooemiales, Halle 1748,
    15. (1990). Istituzioni di Diritto Romano, doi
    16. (1981). Lectures Celebrating the Foundation of the Faculty of Law,
    17. (1972). Lord Kames and the Scotland of his Day, doi
    18. (1978). reprinted Indianapolis

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