Abstract

This essay has two purposes—first, to identify Adam Smith as intervening in the debate between Montesquieu and Hume regarding the nature, age, and robustness of English liberty. Whereas Montesquieu took English liberty to be old and fragile, Hume took it to be new and robust. Smith disagreed with both: it was older than Hume supposed, but not fragile in the way Montesquieu claimed. The reason for this was the importance of the common law in England’s legal history. Seeing this enables the essay’s second purpose: achieving a more thorough and nuanced understanding of Smith’s account of liberty. This requires us to go beyond repeating Smith’s famous claim that modern liberty was the result of the feudal barons trading away their wealth and power for inane status goods. As I demonstrate, this is only one part of a much wider story: of liberty requiring, and also being constituted by, the rise of the regular administration of justice, and ultimately the rule of law. Although Smith’s history of the English courts and common law has been almost entirely neglected by scholars, it is indispensable to understanding both his reply to Montesquieu and Hume and his wider political theory of modern freedom.