Oliver Wendell Holmes was wounded three times on the battlefield, and his Civil War experiences affected his outlook and Supreme Court jurisprudence.
This past year, I helped teach a course in the development of the social sciences in Boston College’s Perspectives Program, our equivalent of a great books curriculum. As we read Hobbes, Spinoza, Marx, and Weber, I asked the students to track the thinkers’ views of human nature and of an objective moral order or natural law. Such core beliefs form the foundation of the many disagreements we have in the public square, I explained. Whether you know it or not, your opinion on welfare reform, the role of “judicial activism,” or the nature of marriage can be tied back to your view of what it means to be a human being, whether that includes being accountable to a higher moral order and, if so, in what way.
Few authors corroborate this—entirely unoriginal—thesis more clearly than Henry Home, Lord Kames. Kames (1696–1782) became a lawyer and professor of Roman law in Edinburgh before his appointment to Scotland’s highest civil court, the Court of Session, in 1752. He later secured an additional appointment to the High Court of Judiciary, dealing with criminal cases. A leading figure of the Scottish Enlightenment, Kames was a patron and mentor to Adam Smith and a friend and cousin of David Hume.
He wrote on philosophy, sociology, husbandry, aesthetics, and the law, and on the last-mentioned subject his most famous work was the doorstop-sized Principles of Equity (1760), which has been recently republished by Liberty Fund. To American readers, this might seem like the title of a general treatise on justice. But in 18th century Scotland, courts of equity were distinct from courts of law and operated by their own principles. Kames defines equity in contrast to common law.
Common law courts deal with cases in which the straightforward application of the law to particular cases leads to just results. A common-law judge decides like an umpire, to borrow Chief Justice John Roberts’ analogy, calling strikes and balls as he sees them. Meanwhile equity is, in Kames’ words,
directed less by precise rules, than secundum aequm et bonum [according to what is just and good], or according to what the judge in conscience thinks right. Thus equity, in its proper sense, comprehends every matter of law that by common law is left without remedy; and supposing the boundaries of the common law to be ascertained, there can no longer remain any difficulties about the powers of a court of equity.
Where exactly do those boundaries lie? It’s difficult to say, but Kames seems confident that “a good understanding between the judges of the different courts, with just notions of law, may, in time, ascertain these limits with sufficient accuracy.”
Much of the book is spent offering principles for judgments of equity based on example. We can consider three to get a sense of Kames’ purposes and method.
First, common law declares null and void any deed made beyond the power of the grantor, in whole or in part. A court of equity, by contrast, “gives force to every rational deed as far as the maker’s power extends.”
Second, a justice issues a warrant for the arrest of a criminal in his county. If the criminal escapes arrest to the next county, then according to the judgment of common law he cannot be pursued and a new warrant must be issued. But if the offense is grave, then the officer of the law may pursue him into any county. The common law forbids it, but equity does not because we have the clear impression that such action is “just and salutary.”
Third, consider the example of someone who offers to buy a cow for his neighbor. He purchases the cow, but it dies. Must the neighbor repay him? Under common law, there was no contract and no judgment would be made in favor of the purchaser. But, Kames writes, “equity pierces deeper, in order to fulfill the rules of justice. Service undertaken by a friend upon an urgent occasion, advances gratitude from a virtue to be a duty; and binds me to recompense my friend as far as he has laid out his own money in order to do me service.”
In all three cases, it is clear how a judgment of equity could bring about a conclusion that would seem more just than the conclusion reached under the common law. But the third example shows that there is a purpose beyond this that Kames would have the court of equity serve: “A court of equity commences at the limits of the common law, and enforces benevolence where the law of nature makes it our duty. And thus a court of equity, accompanying the law of nature in its gradual refinements, enforces every natural duty that is not provided for at common law.”
Equity pushes the boundaries of benevolence toward duty and justice.
These boundaries change because, in Kames’ view, human nature itself is continually progressing “in the order of Providence,” growing more refined with each generation. This progress mirrors the development of individual human beings:
The savage state is the infancy of man; during which the more delicate senses lie dormant, abandoning nations to the authority of custom, of imitation, and of passion, without any just sense of morals more than of the fine arts. But nations, like individuals, ripen gradually, and acquire in time a refined taste in morals, as well as in the fine arts; after which we find great uniformity of opinion about the rules of right and wrong, with few exceptions but what may proceed from imbecility, or corrupted education.
This is not to say that human nature changes so wildly that different members of society are in different stages of progression. That would undermine the innate conviction of a common human nature that allows for legal judgments common to all humanity. Nor is it to say that principles of right and wrong are evolving. Kames thinks we have a common and uniform sense of what is right and wrong, on which courts likewise depend “with great success.”
But Kames also thinks that these moral senses are just that: senses or intuitions. He is forthright that “the science of morals cannot be founded on any truths that may be discovered by reasoning.” Morality does need reasoning, but it must reason about “certain axioms or intuitive propositions.” These may be principles such as duty or passions such as anger, which—unlike reason—have the strength to determine men’s actions.
Selfishness and benevolence are particularly important for Kames. Both are innate in human nature, blended “by divine wisdom” to “fit man for his present state.” Reason dictates that our conduct should conform to our nature. If we were only benevolent, we would dispossess ourselves of everything and become unable to do anything. Nor should we be only selfish, of course, but make sure that in advancing our own interests we do not neglect those of others.
According to Kames’ anthropology, as human nature progresses, two things happen. First, our feelings change and this brings about changes in our moral and legal sense. It’s not as though our reasoning is clearer and, for example, we can now see that Africans and Europeans have the same set of rights. Rather, we now feel repugnance at slavery and segregation. Those sentiments govern our moral judgments, and we come into greater agreement about these sentiments.
Second, our sense of benevolence becomes greater and more refined, such that what was previously only a matter of charity has now become a matter of duty. It is here that courts of equity help with the evolution of human society. By deciding cases in which our sentiments of justice are not satisfied by the dictates of common law, judges help to expand benevolence in society. Kames wrote that equity, “scarce known to our forefathers, makes at present a great figure. It has, like a plant, been tending to maturity, slowly indeed, but constantly; and at what distance of time it shall arrive at perfection, is perhaps not easy to foretell.” He could have just as easily substituted “man” for “equity.”
It should come as no surprise that this lofty view of the judicial munus resulted in decisions that were sometimes more expansive than onlookers thought legitimate. Michael Lobban, in his introduction to this edition, writes:
Kames was also sometimes unpopular with his colleagues for seeking to make innovations both in substantive law and procedure, in line with his view that law was mutable and susceptible to improvement with the progress of society. This tension is captured well in Boswell’s ditty: “Alemoor [one of Kames’ fellow judges] the judgment as illegal blames. / ’Tis equity, you bitch, replies my lord Kames.”
While the United States does not have designated courts of equity (with the exception of Delaware and, in a modified way, Illinois and New Jersey), many judges echo Kames’ view of the judicial role—and do so in cases that fall outside the jurisdiction of Kames’ court. Their judgments not only decide on the case at hand, but aim more or less overtly at perfecting human nature. The legal challenges to such cases are important. But Kames offers us other lessons as well.
For if we think that the history of the past hundred years—with its genocidal bloodletting—has disproved any notion that human nature is progressing toward perfection; if we think that our nature cannot be changed by the stroke of a judge’s pen; if we think that morality is about sentiments but that reason is not just the scout of the passions; if we think that those sentiments require a moral culture that maintains the right first principles; and if we think that such a moral culture is not ever-improving; then we recognize that we must not only offer legal challenges to bad decisions, but philosophical and anthropological ones as well. We must argue for a sound understanding of what human beings are and whether their laws should accord with anything higher than their will and feelings of agreeability and disagreeability.
Such arguments are just as important as arguments about judicial overreach or public policy because, as Lord Kames reminds us, they provide their foundation.