Nota bene: Below is a short excerpt from Chapter 4 of my forthcoming book with Salim Rashid, Das Adam Smith Problematic? Ethics, Economics and Society:

Adam Smith, an up-and-coming professor of jurisprudence and moral philosopher when he published the first edition of The Theory of Moral Sentiments in 1759, borrows many legal locutions to describe the moral machinations of his impartial spectator. Among other things, Smith uses the words “appeal” (TMS, III.ii.32), “judgements” (III.ii.33), “jurisdiction” (III.iii.5), “sentence” (III.ii.32), and “tribunal” (III.ii.33) whenever he is discussing the figure of the impartial spectator. But the term he uses most often to describe his imaginary being is the word “judge.” Sometimes the word judge is capitalized. Most of the time, however, it is not. In Chapter 3 of Book III of TMS, for example, Smith describes his impartial magistrate as an “examiner and judge” (III.i.6), a “great judge and arbiter” (III.iii.4), an “awful and respectable judge” (III.iii.25), and “the immediate judge of mankind” (III.ii.32), that is, with a lower-case j. But at the same time, in several other passages in TMS (see TMS, II.iii.2, III.ii.33, & III.iii.43), Smith capitalizes the word “Judge” (upper-case J). What’s going on?

Also, what kind of judge (or Judge!) is the impartial spectator? Does this imaginary magistrate refer to a mental or internal process, a fiction of our moral imaginations (our inner voice or conscience), or is he an actual external entity, a deity, or godlike “beholder,” to borrow Daniel Klein, Nicholas Swanson, and Jeffrey Young (2025)’s formulation? At first glance, Smith appears to propound the first of these two possibilities in Book III of TMS. By way of example, Smith refers to the “higher tribunal” of our own consciences in the following passage:

But though man has, in this manner, been rendered the immediate judge of mankind, he has been rendered so only in the first instance; and an appeal lies from his sentence to a much higher tribunal, to the tribunal of their own consciences, to that of the supposed impartial and well-informed spectator, to that of the man within the breast, the great judge and arbiter of their conduct. (TMS, III.ii.32)

But in the very next paragraph (!), Smith describes this higher tribunal as an all-seeing Judge (capital J) or deity/godlike entity:

In such cases [i.e. when people think we are guilty of an offense we, in fact, did not commit] the only effectual consolation of [a] humbled and afflicted man lies in an appeal to a still higher tribunal, to that of the all-seeing Judge of the world, whose eye can never be deceived, and whose judgments can never be perverted. (TMS, III.ii.33)

Notice how Smith drops the word “supposed” when he capitalizes the word “Judge,” but notice too how he deploys the same set of legal metaphors (that of magistrate and tribunal) to refer to two different entities—either to the man within the breast or to a godlike entity—depending on whether the word “judge” is capitalized or not. For Smith, then, there are fallible and imperfect “judges” and infallible and perfect “Judges.” The judge of the lower-case j is the man within the breast, while the capital J Judge is God or a “beholder.”[1] But this observation, in turn, poses a puzzle. Specifically, why are there not one but two (!) types of impartial spectator in Smith’s moral framework? Was the Scottish moral philosopher and jurisprude being esoteric or unclear on purpose? If so, why?

In a recent paper, Daniel Klein, Nicholas Swanson, and Jeffrey Young (2025, pp. 321-322) all but concede that Adam Smith paints a confusing and conflicting picture of the impartial spectator in TMS,[2] for they identify a wide variety of competing motives that Smith may have had for being intentionally evasive or esoteric on this score: pedagogical, strategic, and even theological. (To be continued …)

[1] See Klein, D., Swanson, N., and Young, J. (2025). The impartial spectator rises. Econ Journal Watch, 22(2): 296–326..

[2] Cf. Medema, S. (2023). Review of R. P. Malloy, Law and the Invisible Hand (Cambridge University Press, 2022). Journal of the History of Economic Thought, 45(4): 686–689, at p. 688: “… the spectator encounters what seem to be insuperable difficulties as an operational concept owing to its essential ambiguity and indeterminacy. To be blunt, who is he/she/them? Everyone has their own idea of the impartial spectator…. Or, to put matters another way, there is no impartial spectator, only conflicting visions of such.”