Sympathy with the poor: Theories of punishment in Hugo Grotius and Adam Smith

History of Political Thought

Volumn 20, Issue 2, 1999, Pages

  Salter, John ^a  

^a NONE

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ARTICLE; CRIME; ECONOMICS; EDUCATION; ETHNOLOGY; EUROPE; HISTORY; JURISPRUDENCE; LEGAL ASPECT; OFFENDER; POVERTY; PSYCHOLOGICAL ASPECT; PUNISHMENT; SOCIAL CLASS; SOCIAL JUSTICE; SOCIAL PROBLEM; SOCIOECONOMICS;

CRIME; CRIMINALS; EUROPE; HISTORY, 17TH CENTURY; HISTORY, 18TH CENTURY; JUDICIAL ROLE; POVERTY; PUNISHMENT; SOCIAL CLASS; SOCIAL JUSTICE; SOCIAL PROBLEMS; SOCIOECONOMIC FACTORS;

EID: 0042415472     PISSN: 0143781X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (94)

1. See T. Horne, Property Rights and Poverty, Political Argument in Britain, 1605-1834 (Chapel Hill and London, 1990); I. Hont and M. Ignatieff, 'Needs and Justice in the Wealth of Nations: An Introductory Essay', in Wealth and Virtue: The Shaping of Political Economy in the Scottish Enlightenment, ed. I. Hont and M. Ignatieff (Cambridge, 1983); M. Ignatieff, The Needs of Strangers (London, 1994); J. Moore, 'Hume's Theory of Justice and Property', Political Studies, XXIV, 2 (1976); R. Tuck, Natural Rights Theories: Their Origin and Development (Cambridge, 1979); S. Buckle, Natural Law and the Theory of Property: Grotius to Hume (Oxford, 1991); J. Tully, A Discourse on Property, John Locke and His Adversaries (Cambridge, 1980).
2. See T. Horne, Property Rights and Poverty, Political Argument in Britain, 1605-1834 (Chapel Hill and London, 1990); I. Hont and M. Ignatieff, 'Needs and Justice in the Wealth of Nations: An Introductory Essay', in Wealth and Virtue: The Shaping of Political Economy in the Scottish Enlightenment, ed. I. Hont and M. Ignatieff (Cambridge, 1983); M. Ignatieff, The Needs of Strangers (London, 1994); J. Moore, 'Hume's Theory of Justice and Property', Political Studies, XXIV, 2 (1976); R. Tuck, Natural Rights Theories: Their Origin and Development (Cambridge, 1979); S. Buckle, Natural Law and the Theory of Property: Grotius to Hume (Oxford, 1991); J. Tully, A Discourse on Property, John Locke and His Adversaries (Cambridge, 1980).
3. See T. Horne, Property Rights and Poverty, Political Argument in Britain, 1605-1834 (Chapel Hill and London, 1990); I. Hont and M. Ignatieff, 'Needs and Justice in the Wealth of Nations: An Introductory Essay', in Wealth and Virtue: The Shaping of Political Economy in the Scottish Enlightenment, ed. I. Hont and M. Ignatieff (Cambridge, 1983); M. Ignatieff, The Needs of Strangers (London, 1994); J. Moore, 'Hume's Theory of Justice and Property', Political Studies, XXIV, 2 (1976); R. Tuck, Natural Rights Theories: Their Origin and Development (Cambridge, 1979); S. Buckle, Natural Law and the Theory of Property: Grotius to Hume (Oxford, 1991); J. Tully, A Discourse on Property, John Locke and His Adversaries (Cambridge, 1980).
4. See T. Horne, Property Rights and Poverty, Political Argument in Britain, 1605-1834 (Chapel Hill and London, 1990); I. Hont and M. Ignatieff, 'Needs and Justice in the Wealth of Nations: An Introductory Essay', in Wealth and Virtue: The Shaping of Political Economy in the Scottish Enlightenment, ed. I. Hont and M. Ignatieff (Cambridge, 1983); M. Ignatieff, The Needs of Strangers (London, 1994); J. Moore, 'Hume's Theory of Justice and Property', Political Studies, XXIV, 2 (1976); R. Tuck, Natural Rights Theories: Their Origin and Development (Cambridge, 1979); S. Buckle, Natural Law and the Theory of Property: Grotius to Hume (Oxford, 1991); J. Tully, A Discourse on Property, John Locke and His Adversaries (Cambridge, 1980).
5. See T. Horne, Property Rights and Poverty, Political Argument in Britain, 1605-1834 (Chapel Hill and London, 1990); I. Hont and M. Ignatieff, 'Needs and Justice in the Wealth of Nations: An Introductory Essay', in Wealth and Virtue: The Shaping of Political Economy in the Scottish Enlightenment, ed. I. Hont and M. Ignatieff (Cambridge, 1983); M. Ignatieff, The Needs of Strangers (London, 1994); J. Moore, 'Hume's Theory of Justice and Property', Political Studies, XXIV, 2 (1976); R. Tuck, Natural Rights Theories: Their Origin and Development (Cambridge, 1979); S. Buckle, Natural Law and the Theory of Property: Grotius to Hume (Oxford, 1991); J. Tully, A Discourse on Property, John Locke and His Adversaries (Cambridge, 1980).
6. See T. Horne, Property Rights and Poverty, Political Argument in Britain, 1605-1834 (Chapel Hill and London, 1990); I. Hont and M. Ignatieff, 'Needs and Justice in the Wealth of Nations: An Introductory Essay', in Wealth and Virtue: The Shaping of Political Economy in the Scottish Enlightenment, ed. I. Hont and M. Ignatieff (Cambridge, 1983); M. Ignatieff, The Needs of Strangers (London, 1994); J. Moore, 'Hume's Theory of Justice and Property', Political Studies, XXIV, 2 (1976); R. Tuck, Natural Rights Theories: Their Origin and Development (Cambridge, 1979); S. Buckle, Natural Law and the Theory of Property: Grotius to Hume (Oxford, 1991); J. Tully, A Discourse on Property, John Locke and His Adversaries (Cambridge, 1980).
7. See T. Horne, Property Rights and Poverty, Political Argument in Britain, 1605-1834 (Chapel Hill and London, 1990); I. Hont and M. Ignatieff, 'Needs and Justice in the Wealth of Nations: An Introductory Essay', in Wealth and Virtue: The Shaping of Political Economy in the Scottish Enlightenment, ed. I. Hont and M. Ignatieff (Cambridge, 1983); M. Ignatieff, The Needs of Strangers (London, 1994); J. Moore, 'Hume's Theory of Justice and Property', Political Studies, XXIV, 2 (1976); R. Tuck, Natural Rights Theories: Their Origin and Development (Cambridge, 1979); S. Buckle, Natural Law and the Theory of Property: Grotius to Hume (Oxford, 1991); J. Tully, A Discourse on Property, John Locke and His Adversaries (Cambridge, 1980).
8. See Horne, Property Rights and Poverty; and Hont and Ignatieff, 'Needs and Justice in the Wealth of Nations'.
9. See Horne, Property Rights and Poverty; and Hont and Ignatieff, 'Needs and Justice in the Wealth of Nations'.
10. Hugo Grotius, De Jure Belli ac Pacis Libri Tres, Vol. 2, trans. F.W. Kelsey (Oxford, 1925), II.XX.XXIX.1.
11. Adam Smith, The Theory of Moral Sentiments, ed. D.D. Raphael and A.L. Macfie (Oxford, 1976), VII.iv.8.
12. Ibid., II.ii.6-7; and Adam Smith, Lectures on Jurisprudence [A] (1762-3), ed. R.L. Meek, D.D. Raphael and P.G. Stein (Oxford, 1974), ii.90.
13. Ibid., II.ii.6-7; and Adam Smith, Lectures on Jurisprudence [A] (1762-3), ed. R.L. Meek, D.D. Raphael and P.G. Stein (Oxford, 1974), ii.90.
14. Grotius, De Jure Belli, Prolegomena, 6.
15. Ibid., 8.
16. Ibid., I.I.X.1.
17. Ibid., I.I.VIII.1.
18. Ibid., II.XX.XX.nb3.
19. Ibid., II.XX.XX.2.
20. Ibid., II.XX.I.1.
21. Ibid., II.XX.IV.1.
22. Ibid., II.XX.V.1.
23. Ibid., II.XX.VI.2.
24. Ibid., II.XX.XXVIII.
25. Ibid., II.XX.II.3.
26. Ibid., II.XX.XXI.
27. Ibid., II.XX.II.1.
28. Ibid., II.XXIX.1.
29. Ibid., II.XX.XXIX.2.
30. Ibid., Prolegomena, 44.
31. Ibid., II.XX.XXXV.
32. Ibid., II.II.VI.1.
33. Ibid., II.II.VI.2.
34. Ibid., II.II.VI.4. Tuck characterizes this argument as an appeal to 'interpretative charity' (Tuck, Natural Rights Theories, p. 80). Buckle has objected to this on the grounds that: 'it is not simply that we should assume that the founding fathers had the best or the most appropriate intentions; rather we are forced to believe "that it was their intention to depart as little as possible from natural equity". And, because natural equity implies the original universal use right, this right can never be denied.' (Buckle, Natural Law and the Theory of Property, p. 46.)
35. Ibid., II.II.VI.4. Tuck characterizes this argument as an appeal to 'interpretative charity' (Tuck, Natural Rights Theories, p. 80). Buckle has objected to this on the grounds that: 'it is not simply that we should assume that the founding fathers had the best or the most appropriate intentions; rather we are forced to believe "that it was their intention to depart as little as possible from natural equity". And, because natural equity implies the original universal use right, this right can never be denied.' (Buckle, Natural Law and the Theory of Property, p. 46.)
36. Ibid., II.II.VI.4. Tuck characterizes this argument as an appeal to 'interpretative charity' (Tuck, Natural Rights Theories, p. 80). Buckle has objected to this on the grounds that: 'it is not simply that we should assume that the founding fathers had the best or the most appropriate intentions; rather we are forced to believe "that it was their intention to depart as little as possible from natural equity". And, because natural equity implies the original universal use right, this right can never be denied.' (Buckle, Natural Law and the Theory of Property, p. 46.)
37. Samuel Pufendorf, De Jure Naturae et Gentium Libri Octo, Vol. 2, trans. C.H. Oldfather and W.A. Oldfather (Oxford, 1934), II.III. 15.
38. Ibid., III.III.1.
39. Samuel Pufendorf, On the Duty of Man and Citizen, ed. J. Tully (Cambridge, 1991), I.5.18.
40. Ibid., I.5.23.
41. Pufendorf, De Jure Naturae et Gentium, II.VI.5.
42. Ibid., II.VI.2. See also Pufendorf, On the Duty of Man and Citizen, I.5.18. Buckle argues that the interpretation of this principle is helped by placing it in the context of Pufendorf's understanding of societies and laws in terms of agreements: 'If law is the fruit of such a rational political process, it is shaped by what rational beings could be imagined to assent to.' (Buckle, Natural Law and the Theory of Property, p. 112.) Horne links the right of necessity in Pufendorf more explicitly to the contracts that created property rights: 'the right to take from another in a dire emergency was based on the supposition that individuals would not consent to a system of rights that might require that they starve' (Horne, Property Rights and Poverty, p. 36).
43. Ibid., II.VI.2. See also Pufendorf, On the Duty of Man and Citizen, I.5.18. Buckle argues that the interpretation of this principle is helped by placing it in the context of Pufendorf's understanding of societies and laws in terms of agreements: 'If law is the fruit of such a rational political process, it is shaped by what rational beings could be imagined to assent to.' (Buckle, Natural Law and the Theory of Property, p. 112.) Horne links the right of necessity in Pufendorf more explicitly to the contracts that created property rights: 'the right to take from another in a dire emergency was based on the supposition that individuals would not consent to a system of rights that might require that they starve' (Horne, Property Rights and Poverty, p. 36).
44. Ibid., II.VI.2. See also Pufendorf, On the Duty of Man and Citizen, I.5.18. Buckle argues that the interpretation of this principle is helped by placing it in the context of Pufendorf's understanding of societies and laws in terms of agreements: 'If law is the fruit of such a rational political process, it is shaped by what rational beings could be imagined to assent to.' (Buckle, Natural Law and the Theory of Property, p. 112.) Horne links the right of necessity in Pufendorf more explicitly to the contracts that created property rights: 'the right to take from another in a dire emergency was based on the supposition that individuals would not consent to a system of rights that might require that they starve' (Horne, Property Rights and Poverty, p. 36).
45. Ibid., II.VI.2. See also Pufendorf, On the Duty of Man and Citizen, I.5.18. Buckle argues that the interpretation of this principle is helped by placing it in the context of Pufendorf's understanding of societies and laws in terms of agreements: 'If law is the fruit of such a rational political process, it is shaped by what rational beings could be imagined to assent to.' (Buckle, Natural Law and the Theory of Property, p. 112.) Horne links the right of necessity in Pufendorf more explicitly to the contracts that created property rights: 'the right to take from another in a dire emergency was based on the supposition that individuals would not consent to a system of rights that might require that they starve' (Horne, Property Rights and Poverty, p. 36).
46. Pufendorf, De Jure Naturae et Gentium, VIII.3.5.
47. Ibid., VIII.III.19.
48. Francis Hutcheson, An Inquiry into the Original of our Ideas of Beauty and Virtue (Hildesheim, 1971), II.II.1.
49. Ibid., II.Intro. and II.I.I.
50. Ibid., II.VII.IV.
51. Ibid.
52. David Hume, A Treatise of Human Nature, ed. L.A. Selby-Bigge and P.H. Nidditch (Oxford, 2nd edn., 1978), p. 477.
53. Henry Home, Lord Kames, Essays on the Principles of Morality and Natural Religion (Hildesheim and New York, 1976), I.II.III. Hutcheson gives formal definitions of obligation in Inquiry, II.III.I. See the discussion of Hutcheson on obligation in Buckle, Natural Law and the Theory of Property, pp. 213 and 281. Kames thinks that Hutcheson's account of obligation is no different from the approbation of the moral sense, which, he says, can be applied to virtues other than justice. Buckle says that Hutcheson's obligation is identical to moral motivation (ibid., p. 281). These assessments amount to the same thing: Kames is looking at obligation from the point of view of our determination to approve actions while Buckle is looking at it from the point of view of our determination to perform them.
54. Henry Home, Lord Kames, Essays on the Principles of Morality and Natural Religion (Hildesheim and New York, 1976), I.II.III. Hutcheson gives formal definitions of obligation in Inquiry, II.III.I. See the discussion of Hutcheson on obligation in Buckle, Natural Law and the Theory of Property, pp. 213 and 281. Kames thinks that Hutcheson's account of obligation is no different from the approbation of the moral sense, which, he says, can be applied to virtues other than justice. Buckle says that Hutcheson's obligation is identical to moral motivation (ibid., p. 281). These assessments amount to the same thing: Kames is looking at obligation from the point of view of our determination to approve actions while Buckle is looking at it from the point of view of our determination to perform them.
55. Henry Home, Lord Kames, Essays on the Principles of Morality and Natural Religion (Hildesheim and New York, 1976), I.II.III. Hutcheson gives formal definitions of obligation in Inquiry, II.III.I. See the discussion of Hutcheson on obligation in Buckle, Natural Law and the Theory of Property, pp. 213 and 281. Kames thinks that Hutcheson's account of obligation is no different from the approbation of the moral sense, which, he says, can be applied to virtues other than justice. Buckle says that Hutcheson's obligation is identical to moral motivation (ibid., p. 281). These assessments amount to the same thing: Kames is looking at obligation from the point of view of our determination to approve actions while Buckle is looking at it from the point of view of our determination to perform them.
56. Henry Home, Lord Kames, Essays on the Principles of Morality and Natural Religion (Hildesheim and New York, 1976), I.II.III. Hutcheson gives formal definitions of obligation in Inquiry, II.III.I. See the discussion of Hutcheson on obligation in Buckle, Natural Law and the Theory of Property, pp. 213 and 281. Kames thinks that Hutcheson's account of obligation is no different from the approbation of the moral sense, which, he says, can be applied to virtues other than justice. Buckle says that Hutcheson's obligation is identical to moral motivation (ibid., p. 281). These assessments amount to the same thing: Kames is looking at obligation from the point of view of our determination to approve actions while Buckle is looking at it from the point of view of our determination to perform them.
57. Smith, Theory of Moral Sentiments, VII.iii.2.9.
58. Ibid., II.i.
59. Ibid., II.i.3 and II.i.4.
60. Ibid., II.ii.1.5.
61. Ibid., III.6.10.
62. K. Haakonssen, The Science of a Legislator, The Natural Jurisprudence of David Hume and Adam Smith (Cambridge, 1981), p. 63.
63. Smith, Theory of Moral Sentiments, II.i.1.6.
64. Ibid., II.ii.2.2.
65. Smith, Lectures on Jurisprudence (A), ii.89. In an earlier formulation of his theory Smith took a different view; see Smith, Theory of Moral Sentiments, Appendix II, p. 390.
66. Smith, Lectures on Jurisprudence (A), ii.89. In an earlier formulation of his theory Smith took a different view; see Smith, Theory of Moral Sentiments, Appendix II, p. 390.
67. Smith, Theory of Moral Sentiments, II.ii.1.5.
68. See Haakonssen, Science of a Legislator, pp. 151-3; and V. Brown, Adam Smith's Discourse, Canonicity, Commerce and Conscience (London and New York, 1994), Ch. 5, section 4.
69. See Haakonssen, Science of a Legislator, pp. 151-3; and V. Brown, Adam Smith's Discourse, Canonicity, Commerce and Conscience (London and New York, 1994), Ch. 5, section 4.
70. Smith, Theory of Moral Sentiments, II.ii.2.1.
71. The only situation Smith can think of in which harming others is justifiable on the grounds that it is the only way to save one's life is the classic example of two men clinging to a plank after a shipwreck, where the plank cannot save them both. If one pushed the other off he could justify his action by a plea of necessity. But, Smith says: 'this is of so little consequence and so seldom occurs that the law omits it altogether' (Smith, Lectures on Jurisprudence (A), ii.116).
72. Smith, Theory of Moral Sentiments, I.i.3.7.
73. For an excellent contemporary discussion of the relationship between resentment and punishment see P.F. Strawson, 'Freedom and Resentment', in P.F. Strawson, Freedom and Resentment, And Other Essays (London, 1974).
74. In saying that some acts are compelled Grotius does not mean that they are involuntary but that they are performed, as Aristotle says, 'through fear of something worse, or for some admirable purpose' (Aristotle, Ethics (Harmondsworth, 1976), III.i).
75. Pufendorf, De Jure Naturae et Gentium, II.VI.2.
76. Cicero, On Duties, ed. M.T. Griffin and E.M. Atkins (Cambridge, 1991), III.21.
77. Smith, Theory of Moral Sentiments, III.3.6.
78. Ibid., II.ii.2.3.
79. Ibid., II.ii.2.1.
80. Ibid., III.2.7.
81. Ibid., IV.1.8.
82. Ibid., IV.1.9.
83. Ibid., IV.1.10. Moreover, modern commercial societies were capable of satisfying the needs of the poor in a way which did not lead to their dependence on the rich. It was possible for the poor in a commercial society to provide for their own subsistence by working for someone else on a free contractual basis, which did not entail their servitude. The most explicit illustration of the way Smith brought in this feature of modern societies to the discussion of jurisprudential questions was his argument against voluntary slavery ( Smith, Lectures on Jurisprudence (A), iii.142; and Smith, Wealth of Nations, IV.ix.47).
84. Ibid., IV.1.10. Moreover, modern commercial societies were capable of satisfying the needs of the poor in a way which did not lead to their dependence on the rich. It was possible for the poor in a commercial society to provide for their own subsistence by working for someone else on a free contractual basis, which did not entail their servitude. The most explicit illustration of the way Smith brought in this feature of modern societies to the discussion of jurisprudential questions was his argument against voluntary slavery ( Smith, Lectures on Jurisprudence (A), iii.142; and Smith, Wealth of Nations, IV.ix.47).
85. Ibid., IV.1.10. Moreover, modern commercial societies were capable of satisfying the needs of the poor in a way which did not lead to their dependence on the rich. It was possible for the poor in a commercial society to provide for their own subsistence by working for someone else on a free contractual basis, which did not entail their servitude. The most explicit illustration of the way Smith brought in this feature of modern societies to the discussion of jurisprudential questions was his argument against voluntary slavery ( Smith, Lectures on Jurisprudence (A), iii.142; and Smith, Wealth of Nations, IV.ix.47).
86. Smith, Theory of Moral Sentiments, V.2.8.
87. Ibid., III.3.37.
88. Smith, Wealth of Nations, I.viii.39. See also Smith, Lectures on Jurisprudence, iii.133.
89. Smith, Wealth of Nations, I.viii.39. See also Smith, Lectures on Jurisprudence, iii.133.
90. Smith, Wealth of Nations, I.viii.36. The demand and reward for labour are highest, and hence the conditions of the 'labouring poor, of the great body of the people' is the happiest, in an advancing society, 'it is hard in the stationary, and miserable in the declining state'. There are no guarantees, however, that an advancing state can continue forever. Smith raises the prospect of the natural limits to expansion 'in a country which had acquired that full complement of riches which the nature of its soil and climate, and its situation with respect to other countries allowed it to acquire; which could, therefore, advance no further ...' (Smith, Wealth of Nations, I.ix.140). In such a state the wages of labour would, Smith thinks, probably be very low.
91. Smith, Wealth of Nations, I.viii.36. The demand and reward for labour are highest, and hence the conditions of the 'labouring poor, of the great body of the people' is the happiest, in an advancing society, 'it is hard in the stationary, and miserable in the declining state'. There are no guarantees, however, that an advancing state can continue forever. Smith raises the prospect of the natural limits to expansion 'in a country which had acquired that full complement of riches which the nature of its soil and climate, and its situation with respect to other countries allowed it to acquire; which could, therefore, advance no further ...' (Smith, Wealth of Nations, I.ix.140). In such a state the wages of labour would, Smith thinks, probably be very low.
92. Smith, Theory of Moral Sentiments, II.i.5.10.
93. Ibid., VI.ii.1.20.
94. Horne, Property Rights and Poverty, p. 122.