The Scots law of obligations is internationally distinctive. The source of this distinctiveness has often been located in Scotland's status as a “mixed” jurisdiction, incorporating elements of both the Civilian legal tradition and the English common law (Konrad Zweigert and Hein Köz, An Introduction to Comparative Law [1998], 204). This is convenient at a high level of abstraction but can tend to obscure the specific path of historical development taken by Scots law.
Bogle seeks to foreground this historical understanding for Scots contract law. Bogle centers his analysis on titles 10–16 of Book I of Viscount Stair's Institutions of the Law of Scotland. To a specialist audience of Scottish lawyers, Stair would require no introduction. While the Institutions received a muted reception when first published in 1681, they now hold a towering influence, the most prominent of the Scottish Institutional Writings which enjoy positive authority in the Scottish courts. They also represent, as Hector MacQueen notes, “the beginning of the modern Scots approach, and perhaps the only serious attempt at [a] philosophical justification” of the Scots law of obligations (“The Law of Obligations in Scotland,” in The Law of Obligations in Europe, ed. Reiner Schulze and Fryderyk Zoll [2013], 213–43, at 215).
It follows that Contract Before the Enlightenment can be conveniently divided into three parts: before, during, and after Stair. In chapters 1–2, Bogle discusses contract law in the literature prior to Stair, especially the Practicks, and the utilization of Roman law by Stair's predecessors. In chapters 3–8, Bogle deals with Stair's own account of Scots contract law and the philosophical and religious traditions that informed it. In chapter 9, Bogle considers the reception of Stair's contractual thought, especially in the natural jurisprudence of the eighteenth century. It is in this final chapter that Bogle provides the intellectual bridge to the Enlightenment itself.
Bogle makes three main contentions about Stair's approach to contract. The first is that Stair reorganized what were then the main sources of Scots contract law around a theory of contractual will (144–48). In doing so, he destabilized earlier formal theories of contract which focused, in Roman terms, on the external modes by which a contract was formed (76). Secondly, Stair adopted a purposive construction of contract law, balancing the need to achieve equity in individual cases with the overarching utility of contract for commerce (81). Finally, Stair emphasized the moral imperative of standing by the faith of one's promises and pactions (97).
These contentions are supported by reference to particular doctrines, including nuda pacta (75, 86–93) and third-party rights (73). In general, however, it is not Bogle's priority to provide an account of specific rules. In a striking critique of previous commentaries on Stair's treatment of conventional obligations, he argues that “there have been several doctrinal histories of Scots contract law but very few legal histories” (22). Previous work, in Bogle's view, has neglected a thorough assessment of Stair's own legal thought and influences in its rush to relate his account of specific contractual rules to modern-day doctrines.
The distinctive contribution of Bogle's own work is therefore to present Stair's contractual thought in the context of his wider body of writing—including the Divine Perfections, his principal theological work—and the diverse mixture of Aristotelian, Calvinist, Ius commune and natural law traditions to which Stair was responding. Bogle's primary interest, however, is clearly in Stair's development of a specifically Protestant variant of natural law jurisprudence, which drew upon but was distinct in important ways from Hugo Grotius and the other Dutch-Roman natural lawyers. Bogle shows that Stair's explanations of contractual will, the commercial utility of contract law, and the inviolability of promise are all dependent on his theological understanding of liberty and the freedom to contract. Stair's dialogue with Grotius forms the lion's share of the discussion of freedom to contract (207–17).
Bogle shows that Stair reworked Grotian ideas to reflect his own interpretation of Calvinist theology. In one notable example, Stair held, contrary to Grotius, that a unilateral promise—which is to say, a promise made without acceptance—could be enforceable (73). This reflected Stair's belief that a promise was made as an act of individual conscience in obedience to God. The creation of the right therefore depends on the will of the promisor and does not require the knowledge or permission of the promisee. A similar analysis is then applied to third-party rights, which Stair deals with immediately after his discussion of promises (James Dalrymple, Viscount Stair, Institutions of the Law of Scotland [1681], 1.10.4).
Stair's theologically mediated ideas about contract law must now operate in a secular modern culture. Bogle argues persuasively that Stair's system of Protestant natural law can work successfully without God, even if Stair himself would not have recognized it in secular clothing. It can, however, at times be placed under a more critical lens. Bogle emphasizes the relationship between Calvinism and commercial ideas, which in turn shapes Stair's construction of the purpose of contract law and his balancing of equity with commercial utility. Stair's will theory is, however, sometimes commercially inexpedient. For example, his account of jus quaesitum tertio, in contrast to Grotius, required the third party's right to be irrevocable from the moment of creation, a rigorous application of principle that has caused difficulties for modern lawyers.
Contract Before the Enlightenment represents an important milestone in the historical understanding of Scots contract law, and indeed Scots private law more generally. It helps take us beyond simple categorization to a sophisticated understanding of the particular development of the Scottish jurisdiction. Bogle is to be commended for his sensitive reading of the textual sources and his attention to non-legal literature. He highlights the diverse intellectual influences of the Scottish legal profession in the seventeenth century. Contract Before the Enlightenment is a testament to the central role of intellectual history in the teaching of Scots law.
