The Adam Smith Review Volume 8

Fonna Forman

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781317569329
• Edition: 1
• Topic: Business
• Subtopic: Business General
• Index: Business

Adam Smith's contribution to economics is well-recognised, but in recent years scholars have been exploring anew the multidisciplinary nature of his works. The Adam Smith Review is a refereed annual review that provides a unique forum for interdisciplinary debate on all aspects of Adam Smith's works, his place in history, and the significance of his writings to the modern world. It is aimed at facilitating debate between scholars working across the humanities and social sciences, thus emulating the reach of the Enlightenment world which Smith helped to shape.

The eighth volume of the series contains contributions form a multidisciplinary range of specialists, including Fonna Forman, Ryan Patrick Hanley, Dionysis Drosos, Matti Norri, Adelino Zanini, Cesare Cozzo, Estrella Trincado, Michaël Biziou, Carsten Herrmann-Pillath, Heinrique Schnieder, The Right Honorable Gordon Brown, Gavin Kennedy, Iain McLean, Vernon Smith, Alan Lopez, John Thrasher, Tom Martin, Brian Glenney, ?ule Özler, Paul A. Gabrinetti, Craig Smith, Michelle A. Schwarze, Edwin van de Haar, Farhad Rassekh, Lauren Brubaker, Gordon Graham and Eric Schliesser.

Themes of the volume include:

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• Translating Smith's Theory of Moral Sentiments

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• Smith and China

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• Adam Smith in Kirkcaldy

Articles

Adam Smith and the rights of the dead

Alan Lopez

‘I have so much to do—

And yet—Existence—some way back—

Stopped—struck—my ticking—through—’

Emily Dickinson

I

Immanuel Kant tells us in his ‘Third Definitive Article for a Perpetual Peace’ [1795] that the Earth is property shared by all human beings (Kant 1983: para. 358). This argument follows Kant’s plea for what he calls a ‘cosmopolitan right…of universal hospitality’ (ibid., emphasis in original).¹ It is the idea that we have a ‘right to visit, to associate’, indeed, to ‘belong’, based on ‘our common ownership of the earth’s surface’ (ibid.). What is notable about Kant’s argument for hospitality is that, although originally genetic, in the sense that this right to hospitality is derived from the fact that ‘originally no one had a greater right to any region of the earth than anyone else’, it becomes clear that Kant’s reasons are not simply structural, but ethical (ibid.).² Owing to the fact that we share this ‘earth’ which ‘is a globe, [we] cannot scatter ourselves infinitely’, must, finally, ‘tolerate living in close proximity’ (ibid.).³ It is this idea of toleration to which John Locke appeals in his earlier Letter Concerning Toleration [1689], which is not that we should tolerate the conditions in which we live, against which in some instances Locke argues, but that we should tolerate and indeed respect others’ rights to be.⁴ Locke’s is a noble aim, but one that becomes troubled once we recall that we all share this globe. Kant strengthens Locke’s claim by arguing that the argument for hospitality should rest not upon moral whim,⁵ which in Locke allows refusal of toleration to certain groups, but upon this shared right to the earth, what Kant in his Metaphysics of Morals, only two years after ‘Perpetual Peace’, will call ‘[t]his rational idea of a peaceful [1797], even if not friendly, thoroughgoing community of all nations on the earth…a principle having to do with rights’ (Kant 1998: 6: 352; emphasis in original).

But while it is one thing to say we share the earth with one other, what does it mean to say we share the earth with the dead?⁶ This is the question that Adam Smith asks in his Lectures on Jurisprudence. How ‘sacred’ should we consider the will of the dead, let alone the ‘Will of a dead Friend’? (Corr. Letter 156 from Hume, 3 May 1776).⁷ In determining ‘how far the right of the dead might extend,’ if indeed ‘they h[ave] any at all’, hence in asking ‘[w]hat obligation [a]…community [is] under to observe the directions he made concerning his goods’ (LJ(A) i.150), Smith anticipates Kant’s hospitality, (Smith 1982: LJ(B), para. 169) since in Smith’s view this question of obligation can be answered only by answering the even more fundamental question of who counts, as in who counts as ‘subjects of a state’ (LJ(B), para. 86). One drawback of Kant’s right of hospitality is that, despite the wide reach he reserves for equality and the sharing of the earth, the right itself is quite narrow, consisting only of ‘the right of an alien not to be treated as an enemy upon his arrival in another’s country’ (Kant 1983: para. 358).⁸ This is notable in its contradistinction to Kant’s earlier insistence, in ‘Theory and Practice’ [1793], that all individuals possess these rights, those of ‘equality’ and ‘freedom’ and ‘independence’, ‘a priori’, simply by virtue of our being ‘a human being’ (Kant 1983: para. 290; emphasis in original), as in ‘a being who is in general capable of having rights’ (para. 291). Although Kant says that we possess these rights owing to our shared humanity, he also says they are enforceable only to the extent that we are ‘a member of the commonwealth’ (para. 291). It is only in civil society where these rights are secured and their exercise guaranteed, since it is only in civil society where observation of them can be enforced through what Kant calls ‘coercion’ (para. 290), thus ‘public law’ (para. 292). So, for Kant, determining the reach of these inalienable rights, let alone a right of hospitality, similarly becomes a question of who counts as a citizen of the state. Are the dead citizens of the state? If Kant’s is our criterion, the dead would seem to have three strikes against them.⁹ As Patrick R. Frierson observes, ‘[t]he dead are not human, not sentient, and not even living’ (Frierson 2006: 453). Where, then, does this leave the dead?

Smith insists that the dead have rights, just not of the rational sort identified by Kant; the dead possess what Smith more modestly calls a right to ‘piety’, known in the ecclesial vernacular as ‘a reverence for the will of the dead’, the sense ‘that the will of the deceased with respect to his goods or heirs should be observed’ (LJ(A) i.161). Smith soon enough moves away from this ecclesial foundation in his account of the rights of the dead, loosening the impersonal language of ‘should’ to the somewhat more convivial and inviting ‘regard we all naturaly have to the will of a dying person’ (LJ(A) i.150), the ‘pleasure’ ‘[w]e naturaly find…in remembering the last words of a friend and in executing his last injunctions’ (LJ(B) para. 165).¹⁰ But the point is the same, and it turns on Smith’s language of ‘last words’ and ‘last injunctions’. We ‘regard’ this last ‘request’ (para. 165), according to Smith, what he earlier calls ‘the right we conceive men to have to dispose of their goods after their death’ (LJ(A) i.149), not so much because this is ‘a piece of piety not to be dispensed with’ (i.161), which, while true in some respects, suggests a kind of relenting in favor of avoiding punishment to ourselves, but rather owing to the ‘impiety’ and indeed ‘injury’ we ‘conceive [would] be done to the dead person’ were we ‘not to comply with [their] desire’ (LJ(B) para. 165), in this instance that slight acknowledgment, itself the basis of testamentary succession at all, that ‘the heir of blood is [not] always thought the preferable one’ (LJ(B) para. 156). The novelty of Smith’s account of succession, meaning most simply his ‘found[ing]’ it ‘on piety and affection to the dead’ (para. 89), lies in the very creative way this wrests the right from any jurisprudential foundation. And which is where this right of the dead becomes interesting, hence a matter of jurisprudence, which is when its extension infringes upon the rights of those who are properly subjects of the state – those of the living.¹¹ And since we are dealing with ‘inanimated bodies’ (Smith 1982 TMS: I.i.13), when we refer to any acts of infringement, from dead to living, we naturally mean those rights possessed when the deceased was alive, what Jean Barbeyrac, in his commentary on Samuel Pufendorf’s Of the Law of Nature and Nations [1706], calls our appeal to that right that we might have the ‘liberty’ to ‘dispose of [our] Goods at [our] Death’, the liberty to ‘leave them to such Persons as [w]e love’ (Pufendorf 1749: 420 n. 2). These are thus the rights of testamentary succession, or those rights, entails, belonging to what Smith calls ‘[t]he greatest of all extensions of property’ (LJ(B), para. 166). To the extent that we do wish to observe the rights of the dead, what Pufendorf gingerly interprets as the ‘Management of what belong’d to the dead’, our ‘Care of [those]…who are no longer Members of human society’ (1749: 420), how far may we extend these rights, the rights of those ‘reckon’d as no body in civil Consideration’ (418), without infringing upon the rights of those who are, or those of the living? Which is the question: what are the demands the dead may make upon the living?

II

While nowadays testamentary succession is an accepted practice with little fanfare, although gifts bequeathed to universities can be of note, and one has usually heard a story of an individual leaving their estate to beloved family pets, this normalcy was not the case for Adam Smith (Friedman 2009: 75–76). Smith saw as a real challenge the possibility of testamentary succession at all, let alone the question of how far it may reasonably extend, putting it plainly: ‘There is no point more difficult to account for than the right we conceive men to have to dispose of their goods after their death. For at what time is it that this right takes place[?]’ (LJ(A) i.149). To be fair, the question mark is mine; Smith is not asking a question, to which he already knows the answer, so much as expressing incredulity at the point when this right is understood to take place, which, as he tells us, is ‘[j]ust at the very time that the person ceases (to have?) the power of disposing of them’ (ibid.). This is where Smith’s real questions begin.¹² On the one hand, it makes sense why testamentary succession, what Smith calls ‘the testamentary heir[‘s]…claim or right to any of the testators goods’, takes place when it does, which, as Smith explains, is not ‘untill the moment that he is dead; for till that time he can not even have any reasonable expectation of his possessing them, as the testator may alter his inclination’ (ibid.). But then what interests Smith is not the heir’s right to the property, but that moment in which the testator transfers possession of this right, which happens to be the same time the testator ‘ceases to have the power of disposing of [property]’.

As living and breathing persons, we all possess what Smith calls a natural right ‘to dispose of [our] property while [w]e live’ (LJ(B), para. 164). But this ‘power of disposing of [our] goods (LJ(A) i.149)’, what Samuel Pufendorf (1749: 418) calls the ‘transferring of Right from one to another Person’, does ‘suppose the existence of the two Parties at the time of its Date; so that henceforward the thing may be said to be estrang’d from him who thus transferr’d it’ (418). This is what Pufendorf means by ‘alienation’ (418), Smith by disposal of our property, both of which become, in the vernacular of ‘transfer[ence of] things by Testament’, and here Pufendorf appeals to Hugo Grotius’Rights of War and Peace [1625], ‘the Alienation of a whole Estate in the case of Death’ (418; emphasis in original). It is here where for Smith this right of property is undone, which is when it attempts to explain those matters, ‘On account of Death’, where ‘things are convey’d from one Person to another’ (418). ‘[S]o long as he draws Breath’, Pufendorf tells us, the dying, the ‘[t]estator’, ‘retains a full and absolute Right to all his Goods, without the least Diminution’ (418). This right is what we appeal to ‘in every Act of Alienation’, as in those acts, qua alienation, consisting of ‘two Parties [in] join[ed] Consents; the one from whom, and the other to whom the thing is transferr’d’ (418). Yet ‘these Consents’, that which ‘unit[es]’ us ‘by [our] conspiring, as it were, together at the same time,’ additionally suppose that a transfer can, indeed, ‘be made at that time’ (418), what Barbeyrac calls the right’s ‘depend[ance]…upon the mutual Consent of Parties’ (418 n. 1). This is complicated somewhat if the time in this instance refers to ‘that time, when in respect of the Party who should alienate, nothing can be call’d his own or another’s’ (418). Yet it is just this time to which testamentary succession refers, what Pufendorf calls our ‘Moment of…Death’, or that moment we ‘loseth immediately all the Right [w]e held whilst alive’ (418), and so what Smith himself refers to when he asks, in his jurisprudence lectures, ‘how is it that a man comes to have a power of disposing as he pleases of his goods after his death’ (LJ(A) i.149–150). This, for Smith, is the stumbling block to testamentary succession, and the difference between it and ‘legal succession’ (LJ(B), para. 155).¹³ The testator ‘cannot be said to transferr his right, for the heir has no right in consequence of the testament till after the testator himself have none’ (para. 164). By what means, then, does such a thing take place, where one of the parties, dead, does what, ‘properly speaking’, one should have no right to do? (ibid.)

The idea behind testamentary succession, as in why it takes place when we ‘have nothing to do with the things of this World’, ‘only’ when we ‘are not in a condition to make it of Force [ourselves]’, is the assumption of what Jean Barbeyrac calls the ‘reasonable’ ‘[m]an’ (Pufendorf 1749: 420 n. 2).¹⁴ Pufendorf reminds us that ‘[a]lienation’ begins with the acceptance as sincere the ‘Declarations of a[nother’s] Intentions’ (419), as in a promise to alienate property, to borrow Hugo Grotius’ language, becomes ‘mutua[lly] Oblig[ing]’ once ‘it is…accepted’, or ‘Acceptance…be signified to the Promisor’ (Grotius 2005: 720). Alienation is thus not quite the idea that by simply declaring my intention to transfer I thereby do transfer my property into another’s possession, as if without the chance to ‘recall’ my intentions (Pufendorf 1749: 419). I certainly can recall my intentions, as Grotius for instance tells us, so long as the revoking is done before such acceptance is signified, hence ‘before it…obtain[s] its full Effect’ (Grotius: 720). But for all intents and purposes, this declared intent to alienate creates what Smith will later call ‘a reasonable ground of expectation’ in the promisee (LJ(A) ii.56). On account of...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• List of contributors
• From the editor
• Symposium: Translating Smith’s Theory of Moral Sentiments
• Symposium: Smith and China
• Symposium: Adam Smith in Kirkcaldy
• Articles
• Book reviews
• Notes for contributors