INTRODUCTION

The influence of natural law in late-seventeenth and early-eighteenth-century Scotland is well known. At a broad political level, the achievements of the modern school of natural law helped the Scots reach varied readings and understandings of contemporary political events such as the Glorious Revolution and the Union of 1707. The work of these secular natural lawyers also provided a new way of approaching moral philosophy that came to dominate the curriculum in the eighteenth-century Scottish universities. A crucial figure here has generally been seen to be Gershom Carmichael in Glasgow, who adopted Pufendorf's textbook De officio hominis et civis as the basis of his classes on moral philosophy, providing editions with important notes founded on his teaching.

It is also evident that natural law was much relied on in the presentation of arguments in court, which were mainly delivered in or reduced to writing in the elaborate written processes that developed in Scottish litigation of any complexity. This meant that Scots viewed their law within a framework drawn from the ius naturale and ius gentium. The first to articulate this clearly was Thomas Craig around 1600, who identified ius commune with ius naturale and ius gentium rather than utrumque ius. The classic account of Scots law understood in this way is that by James Dalrymple, Viscount Stair, first printed in 1681; but such an exposition of Scots law was normal for the following century.7 Stair depicted Scots law as a coherent and logical whole integrated as a hierarchical series of norms, justified and made obligatory by a higher authority, thereby providing a major synthesis comparable to those of other institutional writers in the era of the usus modernus.

It was on the basis of this approach that, in the eighteenth century, judges could clearly debate issues such as copyright and slavery in Scotland using the language of the ius naturale and the ius gentium. Thus, in 1773, Lord Kennet gave his opinion that literary property was not found in the law of Scotland. He based this claim partly on the observation that it was “not in the law of nature, which is one great fountain of our law”.