“Adam Smith’s theory of justice”: conjectures and refutations

Alternative title: Review of Chapter 5 of Law and the Invisible Hand

Chapter 5 of Law and the Invisible Hand is the most speculative chapter in Robin Paul Malloy’s new book–and also the most original and creative one. In summary, having identified the main ingredients of “Smith’s theory of jurisprudence” in his two previous chapters — i.e. Smith’s “three metaphors” in Chapter 3 and Smith’s “three pillars of civil society” in Chapter 4 –, Professor Malloy then dons his academic chef’s hat and combines this hodgepodge of ingredients in a new and novel way in Chapter 5 to develop a Smithian-inspired theory of justice. For the sake of brevity, I won’t restate the specific steps of Malloy’s intricate intellectual recipe here; instead, I will limit myself to making the following few observations, criticisms, and suggestions:

  1. Stop saying “Smith’s theory of jurisprudence”; Adam Smith did not have one. Although the subtitle of Malloy’s book is “A Theory of Adam Smith’s jurisprudence,” Malloy keeps referring to “Smith’s theory of jurisprudence” and to “Smith’s theory” in each of the chapters of his book when Smith never developed a theory of jurisprudence. In truth, Malloy is just presenting his conjecture of what Smith’s theory of law and justice would have looked like had Smith actually completed his promised book on jurisprudence, which Smith did not. That said, is Malloy’s novel conjecture in Chapter 5 a good one?
  2. Entities are not to be multiplied beyond necessity.” We know from Smith’s early essay on “The History of Astronomy” that Smith himself admired the elegant simplicity of Newton’s three laws of gravity, not the ad hoc or makeshift epicycles of Ptolemaic astronomy. Alas, Malloy’s conjecture, his attempt to formulate a Smithian theory of justice out of a hodgepodge of Smithian concepts, falls more on the Ptolemaic end of the social-science spectrum. To sum up, although Malloy’s efforts are admirable and his guess is a plausible one, my main criticism is that it has too many moving parts to be considered a “Smithian” or Enlightenment theory of justice.
  3. It takes a theory to beat a theory. Even if my criticisms above are on point, Malloy still deserves great credit for bringing to our attention a lesser-known aspect of Adam Smith’s work, his lectures on jurisprudence, and for identifying possible connections between these lectures and Smith’s published work. Moreover, Malloy himself, perhaps unwittingly, effectively responds to objection #2 above in the very next chapter of his book, where he presents a simpler and more plausible Smithian theory of justice. I will thus turn to chapter 6 in my next post …
Applying Occam's Razor to your writing - Punchline

About F. E. Guerra-Pujol

When I’m not blogging, I am a business law professor at the University of Central Florida.
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