Some remarks on James Lorimer’s Institutes of Law.
by, T.S.Midgley
Introduction
James Lorimer(1818-1890) was an advocate and Regius Professor of public law and of the law of nature and nations at the University of Edinburgh, and his “Institutes of Law” appeared in 1872. Since 1972,until recently, that same professorial chair has been held by D.Neil MacCormick, whose faithfully democratic spirit, attested to so thoroughly in his academic and political working life, bears so little resemblance to the elitist views of his erstwhile predecessor it is a rare wonder that the two names might even be connected in the same breath. Such things arise, one might say, as “institutional” facts. Indeed it was none other than Professor MacCormick himself who suggested, with typical kindness and goodwill, that I take away a battered old copy of Lorimer’s Institutes so that it might be scrutinised in connection with a project on the influence of Kant within European legal culture generally. In all of this I think that I might well have exorcised Lorimer’s ghost in the process.
Victorian jurisprudence
Lorimer’s Institutes, an uneasy combination of intolerance and classical erudition, appeared at a time of world-wide British imperial expansion and in a Europe re-arranging itself in the aftermath of Napoleon . Colonialism and inter-imperialist rivalry were the order of the day, and in this context Lorimer sought to resuscitate the older natural law effectively in the face of democratic social progress with its “insane cry for equality”. Indeed, reading Lorrimer one can easily be left wondering if the enlightenment ever happened in Europe - and in Scotland, of all places, home to those great 18th. century giants, Adam Smith, David Hume. Hume, who on Kant’s own admission, so famously stimulated him from his “dogmatic slumbers” in the first place, unsurprisingly perhaps, is not to be found in Lorimer’s index.
So far as Lorimer’s relationship to the Kantian philosophy is concerned, there are plenty of examples of Kantian terminology, but there is a transparency and an eclecticism in such instances. Kant’s ideas look manipulated and contorted and scarcely recognisable as such. Like Henry Calderwood, who held the chair of Moral Philosophy in Edinburgh around roughly the same time, Lorimer was distrustful of the “theoretic part” of the Kantian system with a view that it lead to negative results, but full of praise for its “practical part” - in so far as the latter exemplified, we might say, good Christian charity and commonsense. . All this of course is totally oblivious to the fact that Kant invented the “theoretic part” precisely to give a basis and grounding to the “practical part”, but Lorimer himself in his Institutes expresses more than anything else a Victorian ode to pre-enlightenment values.
The Kantian touchstone
Lorimer sought to dissolve the law of freedom , adduced in Kant, back into the old natural law: “As regards human freedom,” he says, “again, if all that German speculation has done is to distinguish it from mere caprice, and to define it in an identification of the limited personal, with the unlimited universal will, in what does this differ from the common Christian conception of freedom in which we have all (sic ) been brought up? Do we not say that the ‘service’ of God is ‘perfect freedom’, and are we not taught to pray that our will may be blended with His?”
But then if Kant and Hegel - both with a hand upon the Bible themselves - hadn’t in any way made any kind of “addition” here, if only in feeling the need to express something rather differently here, i.e. as they did, philosophically, one might equally wonder why the enlightenment generally of critical reason and the political growth of democracy bothered to take place at all. Indeed Lorimer, for the most part, wishes it hadn’t, though even he, who sees nothing but an ineradicable order of natural rank everywhere, as we shall see, has to make an attempt at explaining “equality under the law”.
Still, though Lorimer is undoubtedly an “easy target” for his outrageously anti-humanitarian and indeed anti-scientific opinions, one cannot help but marvel at how his theological instinct takes us so directly and profoundly to the one question - and it is a question that is just as relevant, vital even, for general and civil education today:
What, after all, did, what does, enlightenment here mean? What does it mean for us today?
Or, to pin the question down to the specific terms of our discussion here: What was, and what is, that “Kantian idea of freedom”, that singular idea which, on the one hand, the Protestant pastors and theologians in Europe, and in Germany in particular, seemed happy to accommodate; and, on the other hand, an idea which so dramatically broke into the secular world of politics and revolution, so effectively affirmed the march of democracy under the banner of the rule of law...and today still plays so much a vital part within the theory of European legal culture generally?
The democratic spirit associated with the Kantian idea of freedom, with the ‘invisible hand’ of Smith, with the egalitarianism of Rousseau - all this was a little too much for Lorimer to take. Too negative a principle, he says, to limit constitutions to the guardianship of individual liberty.
At heart Lorimer was anti-democratic, and in no uncertain terms about it. The “evil” of democracy is to be spurned wherever it would put good and bad on the same footing, truth and error. The egalitarian principle of democracy runs contrary to a natural order of rank, and is therefore an error in discernment, an admission of entry to that which is false and unqualified. An unassailable, incontrovertible, fixed and eternal law of nature impresses Lorimer that all things are ordered by rank of “higher” and “lower”. Not only that, any admixture of “lower” with “higher” is to pollute, to make false, to corrupt and even destroy. On this ground the idea of universal franchise is repugnant and abhorrent to him. In this connection he suggests the extension of the franchise, flawed though it may be in principle, might as a practical expedient be qualified by a persons level of tax-contribution, seen as nevertheless at least something of a mark of character.
Lorimer adheres to the old natural law hierarchies of human social ordering. He avers the superiority of certain nations and races, and within those superior nations, superior classes and groups, and within those classes and groups, superior individuals, who ideally would participate in the life of the state in pro rata proportion with their undisputed stature and substance. “For our purposes,” he says in summary emphasis, “the single life of Socrates is of greater value than the whole existence of the negro race.” In short, Lorimer was an elitist and racialist and his work is sadly permeated with, to say the least of it, “victorian” values. No qualms whatsoever with flogging or the death penalty, he “comes with the sword”, he shows a strong faith in his God, in platonic naturalism, in religion generally and protestant Christianity in particular - but this faith does not seem to extend very far at all into the democratic spirit.
It seems strange given that a scholar of such insight and rectitude was perfectly capable of standing on the shoulders of his 18th. century predecessors. But a reaction against the French Revolution had set in as a tradition in certain quarters and inter-imperialist rivalry was the order of the day - instead of looking forward, he looked back. His favourite sources are symptomatic of this yearning: Socrates, the Book of Job, Augustine, St.Thomas, Baron Bunsen`s “God in History”. Immutable, eternal. all-powerful nature, ordained by God - that is his creed. And in stressing this over and over again he becomes blind to the character of what was actually new in the positivity of law.
Human autonomy and the law of freedom.
The relationship Lorimer takes to the “German metaphysics” is revealing in a number of ways. As the earlier quotation makes clear, if all Kant and Hegel did was to formalise the Christian message then everything in the house of natural law jurisprudence was fine. But then we are left with the slight difficulty that the entire enlightenment counts for little or nothing at all so far as jurisprudence is concerned. This bridge with antiquity, which Lorimer permits himself to elaborate, is not without potent force - even today.
Christ after all had said to the Pharisaic scribes, upon their inquiry as to the location of the kingdom of God:
“The kingdom of God cometh not with observation: neither shall they say, lo here! or lo there! - for behold, the kingdom of God is within you.” And had Kant really said or done anything more than to affirm this as a sort of formality with his idea of absolute individual autonomy (God “within”) coinciding with a universal law of freedom? Certainly Lorrimer thought not and on this ground gave Kant qualified acceptance into his own scheme of things.
Nor do Kant or Hegel themselves do anything to discourage this view. Hegel himself said, “In Germany the eclairissement was conducted in the interest of theology; in France it took up a position of hostility to the church.” The Kantian idea, he says, was received in protestant Germany with “tranquility”, the French, however, sought to realise it in practice with revolution. History, in a sense, has shown itself to receive and make use of this formal idea in very different ways. Or, what is perhaps the same thing, the stick of formalism might be waved by revolutionary and reactionary alike. Or, to put the matter even yet another way: The Kantian idea of pure freedom, of liberty, of human autonomy granted in this law of freedom, implies association only as free association - as in a “free church” for example - and therefore neither hierarchy nor democracy are there as any necessarily implied precondition.
Lorimer’s position in relation to the Kantian school is expressly stated in his Institutes: “In accordance with the Kantian school, we adopt: liberty as the object or end of jurisprudence and order as the means, sine qua non, to the attainment of liberty. In opposition to the Kantian school we reject the negative character which it imposes on the means by which jurisprudence seeks the attainment of its end..” The Kantian law of freedom was fine, but only so far. The point at which it resolved only a “negative” view of the state, i.e. one limited expressly and solely to the guarantee of individual liberty, ( the founding principle of constitutional democracy, as we would understand it today, the merely “police” state, as Lorimer chooses to express it in this connection), was its principal weakness in Lorimer’s view. In addition, he said, the state must be “charitable”.
Arguably Lorimer takes the Kantian system on board in a way, though expressly only in part - and really for that reason we should conclude the opposite, since the Kantian system doesn’t admit of dissection and selection. One has to ask, though, why a man of Lorimer’s stature, of such indubitable perspicuity and erudition, should declaim so vehemently as he does the democratic principle. We perhaps ought to grant that the “video-nasty” of Lorimer’s day would have been Carlyle’s History of the French Revolution - some of the more bloodthirsty bits of which he quotes as salutary to that “insane cry for equality”. But Lorimer’s entire temperament is anti-democratic. Giving people who are by nature unequal, an equal say, is emphatically not for him the way to go about things, so we can make very little really of the purportedly Kantian liberty in his scheme.
Lorimer and legal equality
So how does Lorimer reconcile himself to the idea of equality under the law - a fact of legal positivity even in his day? It is symptomatic that he cannot bring himself to utter this fundamental principle of modern legality without putting it first in quotation marks. He can declaim the French for being in a “womanish” way overrun by “worship of the virgin”, “driving manlier natures who reject it to seek their exemplars and rules of conduct elsewhere” He can say without any guard whatsoever: “that the difference between France and England may arise from the preponderance of celtic blood in the one, and teutonic blood in the other.” Blood! - adding that this conjecture, “is forced upon us by the history of the different portions of our own population.” For, “ (t)hough there are some intellectual and even moral qualities which appear to be possessed by the celtic in a higher degree than the teutonic race, their religious conceptions are always marked by that tendency to ecstatic delirium which characterises the religions of the lower races.” Race, “blood”, placed in order of “higher” and “lower” - these are some of the tools of Lorimer’s natural law science of jurisprudence. Yet when he comes to speak of equality under the law, already a firmly established fact of legal positivity in his own day, suspicion requires its guarded introduction with quotation marks.
What can this “equality under the law” mean, he asks, when God has so assuredly and incontrovertibly distributed his gifts to his creatures so unevenly, so unequally? How has such an ungodly idea come about? “It admits a very simple explanation,” he says . “Equality before the law is neither more nor less than analytic justice ..” And what does this mean? It means, “The individuals, or classes, or nations whose rights and relations are under investigation, are entitled...to the same ‘equality’ which the chemist accords to substances which he puts into his retorts and crucibles.” Regarding the equality this chemist accords to his substances Lorimer offers us no further clue, though “this it is, and this only, that is meant by ‘equality before the law’ .”
Lorimer and charity
It is difficult , to say the least of it, to see any Christian love at all in the views expressed by James Lorimer, though it is to that purity he would purport his system compliant. Quite simply and straightforwardly: he cannot see his fellow human beings as equals, and not really because of any incontrovertible logic of a natural law which says they are obviously not so, but because he personally lacks the faith, the heart, to see them as such. Compared with the great thinkers of the enlightenment,compared for example with Smith, Kant or Rousseau - Lorimer is antediluvian. In his writings one observes an obvious elitism, a contempt for herd and rabble, the canaille, the “logically untrue”; and at the other end as it were, worship of everything “higher”, “nobler”, “cultured”.
Lorimer’s great hero, Socrates, who lived in a society where slavery was taken to be both natural and necessary, freed his slaves on his death-bed. It is not at all clear that he would have done likewise.
Notes
J.Lorimer, “The Institutes of Law: A treatise of the principles of jurisprudence, as determined by nature.” (Edinburgh 1872). Lorimer’s other principal work, “The Institutes of the Law of Nations: A treatise of the jural relations of separate political communities”, appeared later (Edinburgh 1884) but contains absolutely no change in point of view. In this later work he turns his jurisprudence upon the subject of international law, “to vindicate for international jurisprudence the character of a science of nature which I have elsewhere claimed for jurisprudence as a whole” . Prefatory note, ibid. Thus he spurns the principle of comity in international relations as a sufficient basis for international law in the same way as he spurns generally any egalitarian principle. The “rank” of nations in the order of cultural advancement can only give effect to such principles where, according to Lorrimer, it is appropriate.
p.349. ibid.
H.Calderwood, Introduction to Kant’s “Metaphysic of Ethics” (Edinbuirgh 1886). “The speculative or theoretic part of Kant’s philosophy, full as it is of the most valuable contributions to mental philosophy, ends in a negative result. The moral or practical part takes a form altogether different, and ends in high positive results, affording to the Kantian system the only deliverance from scepticism.” ibid. p. xiv.
Institutes (1872). p.20.fn.
ibid. p.53.
Luke xvii. 20.
G.W.F.Hegel, “Philosophy of History”. trans. J.Sibree (1956). p.444.
Institutes (1872). p.290.fn.
supra. 2 fn.
Institutes (1872) .p.367.
ibid. p.370.
ibid. p.324.
ibid.
ibid. p.325.