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Enlightenment, Legal Education, and CritiqueSelected Essays on the History of Scots Law, Volume 2$
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John W. Cairns

Print publication date: 2015

Print ISBN-13: 9780748682133

Published to Edinburgh Scholarship Online: January 2018

DOI: 10.3366/edinburgh/9780748682133.001.0001

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Ethics and the Science of Legislation: Legislators, Philosophers, and Courts in Eighteenth-Century Scotland

Ethics and the Science of Legislation: Legislators, Philosophers, and Courts in Eighteenth-Century Scotland

Chapter:
(p.341) 12 Ethics and the Science of Legislation: Legislators, Philosophers, and Courts in Eighteenth-Century Scotland
Source:
Enlightenment, Legal Education, and Critique
Author(s):

John W Cairns

Publisher:
Edinburgh University Press
DOI:10.3366/edinburgh/9780748682133.003.0012

This chapter examines how the jurisprudence of the Scottish Enlightenment influenced the reform of the Court of Session and its procedure. It first provides an overview of legislation and courts in eighteenth-century Scotland before discussing the idea of the ‘legislator’, with particular emphasis on some of the attitudes taken to it and the ambiguities of the term. It then considers the development of ethical theory in Scotland during the period, along with Adam Smith's legal philosophy. It also analyses Smith's science of legislation and its implications in the context of Scottish legal history. It concludes by showing how Scottish rejection of ethical rationalism and Smith's science of legislation provided what can be described as a sustained critique of the contemporary structure of the Court of Session and of its operation.

Keywords:   jurisprudence, reform, Court of Session, legislation, courts, legislator, Adam Smith, legal philosophy, science of legislation, ethical rationalism

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