In examining questions of legislation and civics in the works of James Hogg and Walter Scott, it would do well to examine which legal and philosophical framework they were writing in the wake of. John Erskine of Carnock is particularly useful in this regard as he sought to systemise Scots law in its entirety, based on his expertise as a jurist and legal scholar. The Institutes of the Law of Scotland was completed and published posthumously, in 1773, by Erskine’s friends and colleagues, who collated his notes to produce an academic inspection of the law. In his effort to define justice, Erskine builds on theories developed by scholars writing in the seventeenth century, identifying a connection between a just legal system and social stability: ‘When laws have a tendency to promote real happiness of the subjects, that alone creates an obligation to obedience, called by Heineccius, and other writers, the internal obligation of law’. In defining the very term ‘law’ itself, Erskine leans heavily upon the Christian theory of Godly providence and the gift of free will. He makes reference to the book of Job in order to differentiate the immovable laws of nature from the constructed laws of man. The law, he states, ‘is peculiar to intelligent beings, endued with consciousness and liberty of will, who consequently have an inward power of acting and forbearing, and by disregarding the prescriptions of the law contract guilt’. Essentially, Erskine suggests that the law is not simply a system of control and governance, but a necessary tool used to alleviate and satisfy the human psyche.
In his academic analysis of Scots law, Erskine is exemplifying a central characteristic of what is now called the Enlightenment. Namely, that various strands of academia and philosophy cannot be examined in a vacuum and are intrinsically multifaceted and multidisciplinary. In his examination of the judicial system of a single European country, Erskine is simultaneously exploring religious tradition, the human condition, philosophical discourse, history, sociology, and psychology. Erskine establishes a clear connection between the law and the role both citizens and the government must play in order to maintain civil obedience. The law is shown here to be a central component of social and political stability. Having established that Erskine’s writings align with the philosophical movement of the Enlightenment, this chapter will now explore which areas of this movement’s political philosophies he was drawing on in the development of his theory of the ‘internal obligation’ of law. To what extent did what is now referred to as the ‘Age of Enlightenment’ reframe the obligations of politicians to their citizens, and how does this relate to the enforcement of the law?
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Erskine’s assessment of the law can be viewed as an extension of the ‘social contract’, a political theory which argued that the government is as answerable to its people as citizens are to their government. This marked a significant shift in the wider understanding of political theory and power structures throughout society. However, how successfully did this framing of civil interaction influence the behaviours and entitlements of governments in practise? This chapter seeks to determine James Hogg and Walter Scott’s engagement with the concept of the social contract, particularly as this relates to Erskine’s theory of the law. To achieve this, this chapter will focus on the novels Peveril of the Peak by Scott, and The Three Perils of Woman by Hogg, two works heavily concerned with legal procedure and its relationship to social stability. To achieve this, first, this chapter will investigate how the social contract became a dominant theory amongst Enlightenment scholars and philosophers: what cultural and political context allowed this idea to permeate scholarly debate? Next, this chapter will assess how the social contract was impacted by the political and economic instability of the Napoleonic Era. Following on from this, Hogg and Scott’s depictions of the consequences of a failing social contract will be examined. Finally, this chapter will assess whether Hogg and Scott’s depiction of legal agents and politicians offer any positive endorsement of the social contract. Does their idea of a sound justice system align with the philosophy of this theory?
Before examining Scott and Hogg’s representations of the social contract, it would do well to examine the origins of this political theory. What philosophy was it being put in opposition to? Throughout the Middle Ages in Britain, the philosophical understanding of government, and the structure of society as a whole, was inherently hierarchical. This was heavily influenced by the medieval Christian theory concerning the organization of the universe, referred to as the Great Chain of Being. The Great Chain of Being placed God as the ubiquitous and omnipotent creator of all beings at the top of the hierarchy governing the universe. Directly below God were angels, followed by, in descending order, humanity, animals, plants, and minerals. It was a natural progression to subdivide these levels of the hierarchy yet further, so as to transfer this interpretation of the natural world into an understanding of societal order. The King sat at the head of this hierarchy, followed by the clergy and aristocracy, with the peasantry occupying the lower levels of this social order. This philosophical framework facilitated the acceptance of the concept of the Divine Right of Kings, which proposes that the monarch is appointed to his position by God, and therefore any challenge to the monarch would be akin to blasphemy. This doctrine sustained itself through to the Tudor age, with A Mirror for Magistrates (a book of poetry published in 1574) declaring that the monarch acts as God’s deputy, ‘and it is he which ordaineth thereto such as himself listeth, good when he favoureth the people and evil when he punish them. And, therefore, whosoever rebelleth against any ruler either good or bad rebelleth against GOD and be sure of a wretched end.’ The acceptance of the monarch as an unchallenged ruler was not only a political issue under this framework, but a moral one.
Much of the prominence of this doctrine resulted from the ubiquitous power of the church in British politics. However, the interconnected relationship between the church and the state eventually became a source of political and social instability. The See of Rome Act 1536 enabled Henry VIII to separate the influence of Rome and the Catholic church from English politics. Still, the philosophy of the Great Chain of Being was maintained, as Henry appointed himself the head of the newly formed Church of England. However, in Scotland, the perceived corruption of the Catholic church led to increasingly radical demands for the separation of church and state. Throughout the sixteenth century, many religious figures expressed frustration with the Catholic church, and whilst this initially involved attempts at reforming Catholic traditions, this eventually morphed into propositions to establish an entirely new system of religion in Scotland altogether, one which followed Protestant lines. In 1559 the tensions between monarchy and Protestant Reformers culminated in a clash between Mary of Guise, the Queen Regent, and Reformers led by the Scottish minister John Knox. This led to a protestant occupation of Perth which grew increasingly riotous as church property was destroyed, with Mary of Guise sending a small French army to oust them from the city. However, as the determination of the Protestant Reformers grew, and the Queen Regent made increasingly disastrous political maneuvers, many of Mary’s inner circle defected to the Protestant cause. In October of that year, Mary of Guise was deposed, and she died not long thereafter. By August the Scots Confession was approved by the Scottish parliament, which reformed the Church of Scotland away from Catholic ideals. Following this, Parliament passed a succession of laws which deposed the Pope’s influence over the church in Scotland and made participation in Mass illegal. The Presbyterian tradition, enforced and upheld by the Covenantors, argues that a complex hierarchy of several ‘courts’ should govern the church, and the monarch should have no influence over the administration of the Church of Scotland. Indeed, a strict condition of the Acts of Union, which politically merged England and Scotland, was that the monarch, who acts as the head of the Church of England, should hold no influence over the running of the Church of Scotland whatsoever, with the Oath of Accession promising this.
Undeniably, the political landscape throughout Britain was repeatedly threatened by clashing factions of Protestant and Catholic loyalists, from Bigod’s Rebellion in 1537, through to The Glorious Revolution in 1688 which ousted King James I from government. Meanwhile, the safety and protection of Catholics and Protestants could shift dramatically and unpredictability with each new monarch and his or her religious allegiances. As such, the commonly accepted belief that the unchallenged rule of a God-ordained monarch would maintain social stability came under increasing scrutiny as violence and political volatility escalated. This facilitated the emergence of new understandings of citizen’s rights and governmental responsibility. The Glorious Revolution also marked a significant shift in the power afforded to the monarch in Britain, by instating constitutional limitations to such powers, in something of a precursor to a liberal state. Post-reformation, modern values of Liberalism, which emphasized personal freedom and equality, were gaining ground through the philosophical writings of scholars who are now considered to belong to the ‘Age of Enlightenment’. The ever-growing irrelevancy of the Divine Right of Kings (a theory which was roundly renounced in Scotland in light of the Covenanting tradition) and the emergence of modernity can perhaps be most clearly identified by the concept of the social contract, as it was explored by Enlightenment writers.
The social contract, as a political theory, was initially developed as a way of determining whether a government had a duty to protect its citizen’s concerns. Writing in 1651, Thomas Hobbes determines the social contract to be the exchange of certain liberties in the pursuit of ensuring stability and security throughout society, and that it is the job of government to ensure that this is maintained in a fair and just manner. Hobbes considers this exchange to be a part of the laws of nature. The first law reads as follows: ‘by which a man is forbidden to do that which is destructive of his life, or taketh away the means of preserving the same, and to omit that by which he thinketh it may be best preserved.’ If self-preservation is a fundamental law of nature, and Hobbes argues that this instinct can facilitate the development of a sound society, a second law of nature emerges:
‘From this fundamental law of nature, by which men are commanded to endeavour peace, is derived this second law: that a man be willing, when others are so too, as far forth as for peace and defence of himself he shall think it necessary, to lay down this right to all things; and be contented with so much liberty against other men as he would allow other men against himself. For as long as every man holdeth this right, of doing anything he liketh; so long are all men in the condition of war. But if other men will not lay down their right, as well as he, then there is no reason for anyone to divest himself of his: for that were to expose himself to prey, which no man is bound to, rather than to dispose himself to peace. This is that lore of the gospel: Whatsoever you require that others should do to you, that do ye to them.’
Essentially, individuals will restrict any potentially damaging behaviors (such as theft or assault) if this decreases the chance of such behaviors being enacted onto them, and the role of government is to prevent stronger individuals within society from flouting these conventions. Still, Hobbes’ assessment of the ‘state of nature’ (essentially, one whereby people are not governed) is ‘brutish and short’ and as such emphasizes that a government is necessary in preserving human life and facilitating the full creative potential of humanity. As such, whilst Hobbes’ theory argues that the government have responsibility to regulate and sustain this system of justice in exchange for their power, it did not refute absolutism.
Building on Hobbes’ concept of the ‘state of nature’, and Hobbes’ exploration of the sacrifices made by individuals in order to sustain a stable society, John Locke emphasizes the responsibilities the government must uphold in their duty to the social contract, and the freedoms which must be enjoyed by the public at large in order to sustain it. Whilst Hobbes considered the ‘state of nature’ to largely be a hypothetical scenario, and the progression of society to be an innate human drive, Locke suggests that ‘the state of nature’ was in fact once real, and that the development of society was a choice. As such, Locke asserts that any government which is not chosen by its people is an illegitimate one, as there is no spiritual precedent for a ruler to maintain their power unchallenged. Locke, essentially, outright rejects the Divine Right of Kings. Jean-Jacques Rousseau’s Du Contrat Social (published in 1762), emphasized the importance of popular sovereignty. Under Rousseau’s evaluation of the social contract, egoism and corruption are the main detriments to social stability, asserting that ‘It is not expedient that he who makes the laws should execute them […] Nothing is more dangerous than the influence of his private interests over public affairs.’ Furthermore, Rousseau argued that each citizen must subordinate him- or herself not to a government, but to the collective good. Ultimately, though it had its origins in questioning the desire to maintain a stable society, the social contract eventually emerged as a challenge to governmental authority, particularly under the theories offered by Locke and Rousseau. The social contract required the government to represent the needs and desires of its people, to maintain their security, and argued that the population at large had far more political influence than previously accepted.
Vitally, as asserted by Locke, the social contract undermined the idea of permanence for any government: were it to fail its people, the people could work to oust it. As summarized by J.W. Gough, the social contract: ‘may be more accurately called the contract of government, or the contract of submission... Generally, it has nothing to do with the origins of society, but, presupposing a society already formed, it purports to define the terms on which that society is to be governed: the people have made a contract with their ruler which determines their relations with him. They promise him obedience, while he promises his protection and good government. While he keeps his part of the bargain, they must keep theirs, but if he misgoverns the contract is broken and allegiance is at an end.’
Marking the development of modernity, the social contract emerged as the foremost political theory which determined governmental legitimacy. The social contract, derived from years of political instability throughout Western Europe, offered a hope for peace to governments and protection to their people. However, this relied on the contract being properly upheld. In practice, how willing were governments to acknowledge the concerns of their people?
Certainly, the promise of the social contract was somewhat undermined by the realities experienced by working-class and rural communities throughout Britain in the eighteenth and nineteenth centuries. Whilst the social contract worked to reframe the relationship between governments and their citizens, and promised that autocracy could not sustain itself long-term, it could not alleviate the fear provoked by the onset and aftermath of the French Revolution. Whilst the revolution in France supported the theory of the social contract, and demonstrated how civilians will inevitably rebel against an inept or unfair government, this overhaul of government had been incredibly violent, leaving British parliament shaken by the possibility of a dissatisfied public. The framework of the social contract, and of Erskine’s theory surrounding the law, argues both that certain sacrifices must be made, and certain freedoms enjoyed by the population at large if they are to be willing to obey their government. However, as established, there was no specific consensus amongst Enlightened scholars surrounding which specific liberties were owed to a government’s subjects. Who, then, was to decide what the parameters of these freedoms and sacrifices should be? The French Revolution fulfilled the promise of rebellion when governments failed to uphold their duties in accordance with the social contract, but the consequential violent retribution reinforced a philosophy more consistent with the Great Chain of Being: that the King is indeed superior to the peasantry, and thus they needed to be controlled. As such, acting at complete odds with the theories presented by the majority of Enlightened philosophers, the British government engaged with increasingly autocratic behaviors. In practice, the main message the government seemed to take from the social contract was that ‘the people’ could be dangerous to them.
Moreover, the social contract’s requirement that government maintain the safety and stability of its ‘charges’ was severely challenged by a changing economic landscape which, with the proliferation of industrialization, overwhelmingly targeted the livelihoods of working-class and rural communities. This can perhaps be best exemplified by the diminishing working opportunities available to handloom weavers and the consequences thereof. The Carlton Weavers Strike of 1787 (also referred to as, tellingly, the Carlton Weavers Massacre) was sparked by a shift within the textiles industry which saw skilled workers losing their jobs to increasingly automized methods of production. This severely diminished the wages and working opportunities for weavers in the Scottish town of Carlton, which prompted several of these artisanal weavers to organize a demonstration in response to a significant pay cut. If Erskine had identified a desire for citizens to obey the law when they felt their interests were protected, then the protester’s increasingly destructive behavior indicated a huge sense of distrust in the government amongst the public. The protestors destroyed the looms of weavers who had not joined the march, building bonfires with the remains.
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