Guerra-Pujol on A Plea to Adam Smith Scholars

F. E. Guerra-Pujol, Pontifical Catholic University of Puerto Rico; University of Central Florida, has published A Plea to Adam Smith Scholars. Here is the abstract.

My plea to Adam Smith scholars is this: stop citing Adam Smith's Lectures on Jurisprudence (Smith 1978) without proper qualification, let alone a disclaimer. Although this work purports to be a primary source--a transcription of Smith's law lectures at the University of Glasgow--these student lecture notes pose two practical problems. One is that we have no idea how faithful or accurate this transcription of Smith's law lectures is. The other problem is that Smith himself may have repudiated the ideas contained in those early law lectures.

Download the essay from SSRN at the link.

Guerra-Pujol on Adam Smith's Blind Spot

F. E. Guerra-Pujol, Pontifical Catholic University of Puerto Rico; University of Central Florida, has published Adam Smith's Blind Spot. Here is the abstract.

This article connects Adam Smith's maxims of taxations-as well as a possible precursor to Smith's maxims: Roussel de la Tour's Richesses de l'etat-with Geoffrey Brennan and James Buchanan's critique of optimal taxation theory. Among other things, Brennan and Buchanan's critique of the optimality criterion fills an important gap not only in the optimal-tax literature but also in Adam Smith's thought.

Download the article from SSRN at the link.

Guerra-Pujol and Alcouffe on Adam Smith in the City of Light @ProfessorPujol

F. E. Guerra-Pujol, Pontifical Catholic University of Puerto Rico; University of Central Florida, and Alain Alcouffe, University of Toulouse-Capitole, have published Adam Smith in the City of Light. Here is the abstract.

The general outline of Adam Smith’s travels in Europe has been retold many times, but little is known about his comings and goings in Paris. What we can say, however, is that the Scottish philosopher’s time in the City of Light marks an important turning point in his personal and intellectual life. He began his Paris sojourns by permanently resigning his professorship. He concluded them by mourning the death of one of the teenage boys who had been entrusted to his care. In all, Adam Smith made three separate visits to Paris. His first visit occurred in February of 1764 and lasted less than a fortnight (Rae 1895, p. 174; Ross 2010, p. 210), but his second and third stays lasted much longer--from February to July 1766 and then from September to October 1766--interrupted only by a short interlude in Compiègne in August. Moreover, several important events took place in Paris during all three of Adam Smith’s stays in the City of Light, dramatic episodes that a keen observer of the world like Smith must have taken notice of, including the intense debate from May 1763 to April 1764 over taxation and royal finances that took Paris by storm the political showdown known as the "séance de la flagellation", when Louis XV made a rare appearance in the French capital to scold the members of the legislature at a session of the Parlement de Paris on 3 March 1766; and the appearance of David Hume’s reply to Rousseau, which was published in Paris on 21 October 1766. Accordingly, Part 1 of this work revisits Smith’s first foray in Paris in February 1764. Next, Part 2 explores Smith’s second sojourn in Paris, from February to July 1766. Part 3 then concludes by revisiting Smith’s last days in Paris.

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Crosswell on The Common Law and the Wealth of Nations @bakermckenzie

Stephen Crosswell, Baker McKenzie, has published The common law and Adam Smith's Wealth of Nations. Here is the abstract.

Understanding the relative effectiveness of common law and legislation led systems is plainly relevant as the UK unshackles itself from the regulatory system of the European Union and as discussions take place on Hong Kong’s future as a common law jurisdiction to service China’s financial markets and international trade. However, there are much bigger shifts in the world that move this issue to a level of fundamental importance. Adam Smith developed a theory of the ‘four-stage’ advancement of society - from hunter-gatherer to herder, then agricultural and finally commercial society. He developed this theory at a time when England had substantially transitioned out of the agricultural stage, through what became known as the Agricultural Revolution, into its role as the seat of the Industrial Revolution and the leading commercial centre in the world. He, and other jurists of the time, saw the debate about whether legislation could effectively drive that transition as the central question of their time, the answer to which would, in the long run, affect the fate of nations and Empire. They had a clear view on this, informed by the study of thousands of years of human history. For them, the common law was vastly superior. This article examines the debate that took place on these issues at the time that England was going through the Industrial Revolution, the Benthamite revolution that followed and the modern basket of rights that obfuscate the key question that policy-makers should be asking: if the common law was so successful in driving the Industrial Revolution, what confidence can we have in a legislated approach to the Technology Revolution?

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Guerra-Pujol on Die Adam Smith Probleme

F. E. Guerra-Pujol, Pontifical Catholica University of Puerto Rico; University of Central Florida, has published Die Adam Smith Probleme. Here is the abstract.

The German mathematician David Hilbert famously identified 23 unsolved problems in mathematics in 1900. Following David Hilbert’s example, this paper contributes to the literature on Adam Smith by identifying a number of unsolved problems involving the life and work of the great philosopher-economist Adam Smith. For reference, my list of “Adam Smith problems” will be divided into three broad categories: Smith the flesh-and-blood man, Smith the public intellectual, and Smith the testator. As a result, the remainder of my paper will be organized as follows. Part I explores some open questions regarding various aspects of Adam Smith’s life and life choices. Next, Part II identifies several additional questions regarding Smith’s main works, ideas, and beliefs. Last, Part III will address one last Adam Smith mystery: his decision to have his unpublished works destroyed after his death.

Download the article from SSRN at the link.

Malloy on Adam Smith's Market Jurisprudence @SUCollegeofLaw @SyracuseLRev

Robin Paul Malloy, Syracuse University College of Law, has published Adam Smith's Market Jurisprudence at 73 Syracuse Law Review 159 (2023). Here is the abstract.

Perhaps the most important and fundamental lesson of Adam Smith’s theory of jurisprudence for contemporary lawyers is that successful communities share a commitment to the rule of law and to the primacy of justice. As represented by the metaphor of the impartial spectator, the rule of law requires rational and impartial decision-making in accordance with due process. The rule of law is not merely an expression of economic or political power in some other form. In Smith’s theory, conflating the triadic relationship among law, economics, and politics undermines civic society and destabilizes the very pillars upon which civilization rests. Learning from Smith, we know that law and justice cannot simply be reinterpreted in terms of an economic calculus, nor can law and justice be understood as the mere exercise of power in service of identity politics. When the rule of law becomes confused with economics or politics, justice is in trouble. In the midst of such confusion, the language and mechanics of justice may survive as rhetorical and logical exercises in decision-making, but justice loses its ethical and aesthetic grounding. This loss of ethical and aesthetic grounding ultimately undermines the moral authority of law, reduces voluntary cooperation among people, and undercuts the sentiment of common interest.

Download the article from SSRN at the link.

Guerra-Pujol on Adam Smith and the Balliol College Conspiracy @PUCPR1 @UCF

F. E. Guerra-Pujol, Pontifical Catholic University of Puerto Rico; University of Central Florida, has published Adam Smith and the Balliol College Conspiracy. Here is the abstract.

Did Adam Smith’s academic superiors at Balliol College, Oxford conspire to search his private rooms, and was the young scholar then reprimanded by them for the heresy of reading David Hume? Although this 18th-century conspiracy story has been retold many times, its veracity has never been corroborated. This paper thus contributes to the Adam Smith literature in three ways: by assembling in one place the original reports of the Oxford conspiracy, by showing how this oft-told Adam Smith conspiracy story has evolved over the years, and by subjecting these accounts to lawyerly scrutiny.

Download the article from SSRN at the link.

Malloy on Adam Smith's Market Jurisprudence @SUCollegeofLaw @SyracuseLRev

Robin Paul Malloy, Syracuse University College of Law, has published Adam Smith's Market Jurisprudence at 73 Syracuse Law Review 159 (2023). Here is the abstract.

Perhaps the most important and fundamental lesson of Adam Smith’s theory of jurisprudence for contemporary lawyers is that successful communities share a commitment to the rule of law and to the primacy of justice. As represented by the metaphor of the impartial spectator, the rule of law requires rational and impartial decision-making in accordance with due process. The rule of law is not merely an expression of economic or political power in some other form. In Smith’s theory, conflating the triadic relationship among law, economics, and politics undermines civic society and destabilizes the very pillars upon which civilization rests. Learning from Smith, we know that law and justice cannot simply be reinterpreted in terms of an economic calculus, nor can law and justice be understood as the mere exercise of power in service of identity politics. When the rule of law becomes confused with economics or politics, justice is in trouble. In the midst of such confusion, the language and mechanics of justice may survive as rhetorical and logical exercises in decision-making, but justice loses its ethical and aesthetic grounding. This loss of ethical and aesthetic grounding ultimately undermines the moral authority of law, reduces voluntary cooperation among people, and undercuts the sentiment of common interest.

Download the article from SSRN at the link.

Malloy on Law and the Invisible Hand: A Theory of Adam Smith's Jurisprudence (Draft Chapter 1) @SUCollegeofLaw

Robin Paul Malloy, Syracure University College of Law, has published Law and The Invisible Hand: A Theory of Adam Smith's Jurisprudence (Draft Chapter 1) (as part of Robin Paul Malloy, Law and the Invisible Hand: A Theory of Adam Smith's Jurisprudence (Cambridge University Press 2021). Here is the abstract.

Fundamentally, law is to society as gravity is to the solar system, it is the invisible force that holds it together and keeps it operating smoothly and productively. Law enhances social cooperation, facilitates trade, and extends the market. In these ways, law functions like Adams Smith’s invisible hand, guiding and facilitating the progress of humankind. This paper outlines the elements of understanding Smith's theory of jurisprudence, and introduces the theory developed in my book.

Download the draft from SSRN at the link.

Guerra-Pujol on Love or Liberty? A Short History of Adam Smith in Love @lawscholar

F. E. Guerra-Pujol, University of Central Florida; Pontifical Catholic University of Puerto Rico, is publishing Love or Liberty? A Short History of Adam Smith in Love in Econ Journal Watch. Here is the abstract.

Who were Adam Smith’s lost loves, and how does the enigma of Smith’s love life inform his defense of personal and economic liberty? With a view toward systematizing the available evidence and extending the work of previous scholars, I will re-assemble all the admissible amorous evidence, subject such facts to critical scrutiny, and draw reasonable inferences from these sundry proofs. First, I will present four pieces of primary evidence regarding Adam Smith’s lost loves. Secondly, I will make several new conjectures and revisit several intriguing hypotheses concerning Doctor Smith’s sexuality and romantic attachments. Thirdly, I speculate about Smith’s adamant desire to have his private papers and correspondence destroyed upon his death and about the possibility of a lost travel diary from his Grand Tour of France, and lastly, I will consider two additional clues that may shed light on this amorous enigma. Specifically, I will revisit Adam Smith’s analysis of love and lust in The Theory of Moral Sentiments, and I will conclude this paper by exploring the geographical dimension of Adam Smith’s enigmatic love life: the strict ecclesiastical regulation of sex in the Scotland of Doctor Smith’s youth.

Download the article from SSRN at the link.

Bonica and Klein on Adam Smith on Reputation, Commutative Justice, and Defamation Laws @mbonica @GeorgeMasonU

Mark Bonica, University of New Hampshire, Health Management and Policy, and Daniel B. Klein, Department of Economics, have published Adam Smith on Reputation, Commutative Justice, and Defamation Laws as GMU Working Paper in Economics No. 19-24. Here is the abstract.

We explore two issues in reading Smith. The first concerns whether he thought that “one’s own” as covered by commutative justice included one’s reputation. Several passages point to the affirmative. But reputation is left out of Smith’s “most sacred laws” description of commutative justice. Moreover, so much of reputation—e.g., “Steve’s work stinks”—does not fit Smith’s description of commutative justice’s rules (precise and accurate). Our reading makes use of older terminology from Pufendorf, Carmichael, and Hutcheson distinguishing “simple” and “intensive” esteem, and suggests that the “reputation” that sometimes appears is of a simple variety (“Steve steals horses”) that potentially incites invasion of commutative justice’s three staples—person, property, promises due. On that reading the “reputation” that comes under commutative justice would be adjunctive to the three staples. Our reading also recruits Hume, who nowhere even hinted at reputation being a constituent of commutative justice. The second matter explored is Smith’s policy inclination about defamation laws (libel, slander) as they would pertain to intensive esteem. By our lights, were Smith to favor intensive-reputation defamation laws (against, say, “Steve’s work stinks”), we would have to count that as another exception made to the liberty principle. Smith’s remarks are mixed, but we think he was rather inclined against aggressive or extensive laws of such kind. (Also, we draw a parallel to patent and copyright.) Looming behind our discussion is the question: Why did Smith leave us with contrarieties and unclarity? We figure that if Smith thought that wantonly telling malicious lies like “Steve’s work stinks” was not a violation of commutative justice and, moreover, is best left perfectly legal, those are judgments that the liberal project’s great prophet would hardly want to make plain, because indifferent readers would misunderstand them and adversaries would misrepresent them.

Download the paper from SSRN at the link.

Weingast on War, Trade, and Mercantilism: Reconciling Adam Smith's Three Theories of the British Empire

Barry R. Weingast, Stanford University Department of Political Science, has published War, Trade, and Mercantilism: Reconciling Adam Smith's Three Theories of the British Empire. Here is the abstract.

Adam Smith proposed two contradictory theories of the British Empire in the "Wealth of Nations" and hinted at a third. The first view holds that the empire was created for merchants eager to establish monopolies on the colonial trade. Smith concludes that "Great Britain derives nothing but loss" from the colonies. In the second view, Smith celebrates the European discovery of the new world, opening up non-incremental increases in division of labor, specialization and exchange. The empire thus fostered the economic growth of both sides of the British Atlantic, net of the costs of monopoly. Smith's third argument is the least developed. It holds that many mercantile restrictions had a direct purpose in improving Britain's security given its more than century-long military conflict with France. How do we reconcile the incompatibility of Smith's three views of the British Empire? Smith provides too little guidance. I argue that, to understand the British Empire, we must view it from the perspective of a long-term military rivalry with France. Many of the navigation regulations were designed to advantage Britain vis-a-vis France. Smith argues, for example, that the harm to France from prohibiting trade in military stores more than compensated for the loss in wealth due to the restrictions. I demonstrate the logic of these claims using tools from modern political science.

Download the article from SSRN at the link.

The Role of Emotion In English Law and Legal Theory

For those of us who think the English are dour or lack affect,, and that English lawyers are more of the same, a new book offers to change our views. Newly published by Bucknell University Press is Impassioned Jurisprudence: Law, Literature, and Emotion, 1760-1848, edited by Nancy E. Johnson. Here is a description of the contents from the publisher's website.

In this volume of essays, scholars of the interdisciplinary field of law and literature write about the role of emotion in English law and legal theory in the late eighteenth and early nineteenth centuries. The law's claims to reason provided a growing citizenry that was beginning to establish its rights with an assurance of fairness and equity. Yet, an investigation of the rational discourse of the law reveals at its core the processes of emotion, and a study of literature that engages with the law exposes the potency of emotion in the practice and understanding of the law. Examining both legal and literary texts, the authors in this collection consider the emotion that infuses the law and find that feeling, sentiment and passion are integral to juridical thought as well as to specific legislation.

Includes an introduction by Nancy E. Johnson, Simon Stern, Blackstone's Legal Actors: The Passions of a Rational Jurist, Nancy E. Johnson, Narrative Sentiment in Adam Smith's Lectures on Jurisprudence, J. T. Scanlan, Love and the Law in Boswell's Development as a Writer in the Late 1760s, Melissa J. Ganz, Freedom and Fetters: Nuptial Law in Burney's The Wanderer, Erin Sheley, Doubled Jeopardy: The Condemned Woman as Historical Relic, Peter de Bolla, The Madness of Sovereignty: George III and the Known Unknown of Torture, Ian Ward, The Great Dramatist: Macaulay and the English Constitution. Also includes a Timeline of Selected Legal Publications, Legislation, and Events, and a Bibliography.



 
 

The First Amendment, Commercial Speech, and Adam Smith

Robert Post and Amanda Shanor, both of Yale Law School, have published Adam Smith's First Amendment at 128 Harvard Law Review Forum 165 (2015). Here is the abstract.

From the time of the New Deal, it has been black letter constitutional law that purely economic regulations should be subject to review under the deferential rational basis standard. This was the meaning of consigning Lochner v. New York to the anticanon. In recent years, however, this constitutional principle has come under severe strain because plaintiffs have begun using First Amendment protections to challenge basic economic regulations. They have sought to transform the First Amendment into a powerful engine of constitutional deregulation.

In this article, we argue that using the First Amendment for this objective contradicts the Amendment’s fundamental democratic purpose. First Amendment freedoms create a protected space in which citizens can discuss and decide how they wish to govern themselves, including how to regulate their economy. Ascribing to the First Amendment a particular social or economic policy contradicts this function. The First Amendment vests the People with the power to choose or reject policies, including policies of libertarian economic deregulation.

The Supreme Court that created the commercial speech doctrine — now the key site of dispute in this constitutional conflict — was well aware of this potential contradiction. The Court therefore defined the doctrine to protect the rights of listeners to receive information rather than to safeguard the autonomy of speakers. Some recent court decisions have lost track of this basic distinction, and have used the First Amendment to shield the undisturbed operation of the laissez faire market. Astonishingly, they have even cited Adam Smith to justify their decisions. This approach is inconsistent with the architecture and history of the commercial speech doctrine as well as with the First Amendment’s most basic role in safeguarding democratic governance.

Commercial speech advocates justify their position by arguing that the First Amendment must protect speech in the marketplace because it protects all speech, wherever and however it occurs. But this contention does not survive even the most casual scrutiny. It would lead to the absurd result that constitutional protections extend to those who commit crimes with speech, such as conspiracy or violations of the antitrust laws; to doctors, lawyers, and bankers who commit malpractice or fraud; or to the contracts that make up our commercial transactions. Speech is in fact everywhere. If all speech were to receive the same protections as public discourse, the country would become, literally, ungovernable. Were the First Amendment to extend in such an undifferentiated way, it would simultaneously authorize democratic deliberation and render powerless the government produced by that deliberation.

We argue that the First Amendment can continue to serve as the guardian of our democracy only if it is regarded as plural. Different forms of speech must receive different forms of constitutional protection. Unless this principle is clearly kept it mind, First Amendment decision-making threatens to revive the long-lost world of Lochner and to destroy the very democratic governance the First Amendment is designed to protect.

Download the article from SSRN at the link.

Adam Smith's Views on International Law and International Relations

Nicolas Hachez, Leuven Centre for Global Governance Studies, has published Views on International Law and International Relations in Adam Smith's Lectures on Jurisprudence. Here is the abstract.

This article aims to analyze and interpret the views on international relations and international law expressed in Adam Smith's little studied Lectures on Jurisprudence, in connection with the works of Grotius, Hobbes and Pufendorf. In order to do so, the article first tries to unravel Smith's account of the formation of society and government in domestic orders, understood as a complex intertwinement of human and economic factors. The article then goes on to analyze Smith's stated reasons why the seemingly universal human and economic processes leading to the formation of domestic societies and governments are failing when they are to apply in the international order. Finally, this article explores Smith's views on the idiosyncratic rules governing international relations, i.e. the Law of Nations. The conclusion of the article then attempts to formulate insights for a more harmonious international society based on Smith's premises.

Download the paper from SSRN at the link.

Adam Smith and the Judiciary

Robin Paul Malloy, Syracuse University College of Law, has published Adam Smith in the Courts of the United States, at 56 Loyola Law Review 33 (2010). Here is the abstract.

Be it on topics of property, contract, commerce, trade, tax, legal history, or other matters, jurisprudence in the United States often invokes economic thinking in providing a rationale for legal outcomes. Consequently, I wondered how often the appeal to economic thinking in the courts included a reference to Adam Smith, the founder of modern economics. This essay traces the citations to Adam Smith in the judicial opinions of the Federal Courts starting with the first two cases to cite Smith in 1796; 214 years ago. The essay provides a brief contextual discussion about Smith and the way in which he has been cited over the years. This is followed by a report on the full set of citations to Adam Smith in the case opinions of the Federal Courts and in the legal briefs filed in those cases.



Between the years 1796 and 2009, Adam Smith is directly referenced in 162 cases, and in legal briefs filed in 213 cases. Over time Smith is cited for different purposes. He is cited in case opinions dealing with a range of topics including: tax, trade, commerce, labor, antitrust, and private property. The way in which Smith is referenced over time also changes. In general, references to Smith shift over time as he goes from being an authoritative reference on matters of taxation to being a mere iconic punctuation point in the arguments of those seeking to promote free markets and laissez-faire.



The article offers quotations from case opinions and establishes a record of Adam Smith’s appearances in the Courts of the United States. Interestingly, 70% of the citations to Smith occur since 1970. Hopefully, the article will be a fun piece to read no matter what one’s specialized research or teaching area may be.

Download the article from SSRN at the link.