Papers by Stephen Bogle
If a stranger requests your help to extinguish a fire in their home, you may choose to do nothing... more If a stranger requests your help to extinguish a fire in their home, you may choose to do nothing. You could call the fire brigade. Or maybe offer assistance. But you might think it is a hoax. Or alternatively you might not be able to help. Whatever the case, morally, you would be expected to explain your inaction. But from a legal perspective you are not required to justify your inaction. The law of Scotland like the law of England and Wales does not impose a duty to be a Good Samaritan. The story is different, however, if you are an emergency service constituted by an Act of Parliament. In such situations, the law has different expectations. In the case of A J Allan (Blairnyle) Limited v Strathclyde Fire Board the Inner House of the Court of Session offered some important guidance as to what is expected of a statutory Good Samaritan, such as the fire service.
This is a book review of Warren Swain's The Law of Contract 1670-1870 published in 2015.
Book review of "Law and religion: the legal teachings of the Protestant and Catholic Reformations... more Book review of "Law and religion: the legal teachings of the Protestant and Catholic Reformations" ed by Wim Decock, Jordan J Ballor, Michael Germann, Laurent Waelkens published in 2014.
he was well connected. He was also a prolific writer, publishing fourteen books on topics ranging... more he was well connected. He was also a prolific writer, publishing fourteen books on topics ranging from agriculture to aesthetics. He has not received until now an overarching intellectual biography, although William C. Lehmann's 1971 biography, Henry Home, Lord Kames and the Scottish Enlightenment: A Study in the National Character and in the History of Ideas came close to this in its ambition. In spite of his influence and ideas being well-known within the existing literature he has not received, at least according to Rahmatian, sufficient attention as a thinker. However, Rahmatian's monograph is a significant contribution on both accounts, offering both a new appraisal of Kames' ideas as a whole and an overarching examination of his oeuvre.
This case note analyses Leggatt J's judgment in Yam Seng Pte Limited v International Trade Corpor... more This case note analyses Leggatt J's judgment in Yam Seng Pte Limited v International Trade Corporation Limited [2013] EWCA 111 (QB). The case note asks how we are to interpret Leggat J's judgment, suggesting a solution could be found in Scots law.
This case note looks at the Inner House decision in Lloyds TSB Foundation for Scotland v Lloyds B... more This case note looks at the Inner House decision in Lloyds TSB Foundation for Scotland v Lloyds Banking Group Plc [2011] CSIH 87. Suggests that an appeal by Lloyds Banking Group Plc to the Supreme Court may find more sympathy.
Drafts by Stephen Bogle
Private law theory plays a role (for better or worse) in the practice of law, whether that be in ... more Private law theory plays a role (for better or worse) in the practice of law, whether that be in education or providing criticism, or contextualizing within a broader frame what private law does and why it does what it does. Yet some say that private law theory neglects history while others say that it does not fully capture history’s possibilities. In this paper, I explore what it means to use history in theorising by exploring how analytical philosophy has engaged with history since the 1960s, suggesting three possible historical avenues of private law theory.
A depraved (rational) man: Stair’s theory of natural law c. 1681
In 2008 Sir Neil Maccormick said... more A depraved (rational) man: Stair’s theory of natural law c. 1681
In 2008 Sir Neil Maccormick said: “Despite [the] relative neglect of this work by historians of political and philosophical ideas, it is one of the greatest legal works in the English language.” (Maccormick, Practical Reason in Law and Morality (2008) 100). Maccormick was speaking of James Dalrymple, Viscount Stair’s (1616-1695) Institutions (1681; 1693). In this paper I intended to unpack Stair’s natural law theory. I will remark upon how he navigated between the rationalism of Hugo Grotius on the one hand and the Calvinism of the Church of Scotland on the other hand. Stair had the difficult task of acknowledging that man was depraved but nonetheless he needed to explain how man was capable of establishing a society. I will explain why he encountered this tension and how he resolved it. I will demonstrate that Stair conceptualised knowledge of natural law as emanating from two sources; that is, rational enquiry into the (i) utility of positive law and (ii) axiomatic principles known innately to man. This paper offers a micro-study of a particular natural law theory; but it does so with the hope that it might contribute to a wider understanding of how theories of human nature interact with moral and legal discourse. With that in mind, it will offer some broader reflections on the (perpetual?) struggle of jurists to quadrate theories of human nature and theories of normativity.
Talks by Stephen Bogle
In the year of the South Sea bubble, David Dalrymple (1666?-1721) published a pamphlet, Time Barg... more In the year of the South Sea bubble, David Dalrymple (1666?-1721) published a pamphlet, Time Bargains tried by the Rules of Equity and Principles of Civil Law (1720). He argued that inequality could render a contract unenforceable and give rise to several remedies. He goes so far as to argue that even if there is no evidence fraud, error or incapacity, such contracts were inequitable. It is a distinctive contribution to the South Sea debate when compared to other pamphlets: it argued, inter alia, that no matter what the Common Law might allow Natural Law and Equity decrees that these contracts should not be performed. Furthermore, in terms of the history of contractual thought in Europe, Dalrymple’s use of an ancient legal idea of iustum pretium is notable because it appears somewhat outdated or at the very least speculative in terms of a legal argument. To say it is speculative does not mean to say that his argument was disingenuous or frivolous but rather suggests that there is more to his argument. It could be said that he adopts a rather ambitious interpretation of the law due to the unprecedented circumstances of the South Sea bubble or simply because as a Scots lawyer he was somewhat unfamiliar with what arguments would work in an equity court. Of course, this may be so; but as will be shown, it should be borne in mind that this legal argument was used as part of a political debate about whether Parliament should intervene in private transactions. Hence, it is the intellectual context which helps explain why Dalrymple argued against the Common Law and - despite the practice of courts and the general understanding of lawyers in Scotland and England suggesting otherwise - confidently asserted these contracts should not be performed. When placed within the context of political thought in the early 18th century, Dalrymple’s response to the South Sea bubble is explicable: he is making more of an ideological appeal to Natural Law and virtue rather than ius (legal rights) and the Common Law. Furthermore, examining this context also brings to light an early 18th century quasi-economic-political discourse which contains similar ideas to those that arguably came to shape the rhetoric of nineteenth century notions of freedom of contract. Although beyond the scope of this analysis, the pamphlet discourse does raise questions about the historiography of contractual thought and its relationship of early 18th century extra-legal attitudes towards contracts and suggests the need for further study. This paper was presented this paper at the Law and Empire workshop held at Downing College, Cambridge, 23-24 March 2018. (N.B. This is an updated version of a paper presented to the Scottish Legal History Group in May 2015).
I presented this paper at the "Law in Theory and History – a Neglected Dialogue" workshop at the ... more I presented this paper at the "Law in Theory and History – a Neglected Dialogue" workshop at the University of Edinburgh on 28 April 2017 and at the Faculty seminars held at the universities of Tulane and Loyola, New Orleans, on 3 and 4 September respectively. In this paper I consider how private law theory approaches and understands history or law's past. I note some criticisms levelled towards private law theory within existing literature, particularly its neglect of history. In this paper I have tried to suggest, if the theorist were to address these complaints how they might do their theory historically or with a historical awareness. I acknowledge that every theory of law in some way implicitly or explicitly deals with the past and has some sort of conception of history or time. It may be undeveloped, rudimentary or deliberately side-lined but what has gone before is part of the fabric of law, legal reasoning and how we analyse. It just might not always be evident or examined. But I try to show in this paper three possible ways you can theorise about private law historically: rational reconstruction, contextualism and Hegelian approaches. I sketch out how these approaches have been used in political and philosophical history since the 1960s. I conclude that it may be that for example critical legal histories share the most in common with a contextualised approach. Whereas others may be more inclined, whether knowingly or not towards a Hegelian approach. It could also be the case that contemporary private law theory is best suited to rational reconstruction. I also recognise that there are other approaches and ways in which history and theory can be used together. Therefore, I suggest these three approaches outlined in this paper as strands of theoretical writing which have a historical sensibility or which overtly include and incorporate the past (or history) into their theorising. I don’t argue that these are definitive categories, there could be more; this division, I argue, is far from absolute and each may in some ways overlap with the other. But I contend that if we are going to do private law theory historically, these are potential paths which have been used in political and philosophical history.
In 1720, around the time of the South Sea bubble, the Scots lawyer and politician, David Dalrympl... more In 1720, around the time of the South Sea bubble, the Scots lawyer and politician, David Dalrymple, published a pamphlet entitled, Time Bargains tried by the Rules of Equity and Principles of Civil Law. This paper characterises Dalrymple’s pamphlet as a legal response to the South Sea crisis. Traditionally, historical accounts of the crisis focus upon the social, economic or political aspects of the South Sea bubble. The value, however, of this pamphlet, is that it offers an insight into how a Scots lawyer, like Dalrymple, understood the crisis. Of particular note is his use of natural law and how he used it to explain and justify his analysis. The pamphlet demonstrates how a lawyer like Dalrymple appealed to natural law as a source of remedy for disappointed shareholders. This paper offers an initial analysis of Dalrymple’s legal thought and suggests how his legal thought can be understood against a broader context of early eighteenth century natural law thinking about the law of contract.
This paper was presented in Tel Aviv, in March 2015, at the Association of Young Legal Historian'... more This paper was presented in Tel Aviv, in March 2015, at the Association of Young Legal Historian's annual conference. In this paper, I offered an account of how legal thought in a particular area of law, contract law, in a particular geographical location, Scotland, developed from an overtly religious justification to a neutral explanation from the perspective of theological doctrine. In outline, I tracked through several texts (John Wishart, Francis Hutcheson, Gershom Carmichael), from Viscount Stair to Adam Smith, how the strong moral realist elements of Stair’s justification for promise keeping moved to Adam Smith’s anti-realist justification developed leading to a utility-based justification for the enforcement of promises and contracts.
This paper was presented at the Ius Commune Doctrinal Research School in Maastricht on 28 January... more This paper was presented at the Ius Commune Doctrinal Research School in Maastricht on 28 January 2013. It outlines some of methodological difficulties associated with doing a history of legal thought. It specifically addressed the problems associated with linking, relating or understanding such developments (in legal thought) with regard to larger intellectual developments within society. In this paper I argued that it is possible but that one needs (i) to adopt different methodological approaches to one's historical sources, (ii) engage with histories of education and universities and (iii) to contextualise the study within a broader context of established research.
This paper focused upon the theory of contract found in Viscount Stair's Institutions of the Law ... more This paper focused upon the theory of contract found in Viscount Stair's Institutions of the Law of Scotland, an early form of will theory (1681; 1693). In particular, it built upon the existing research of Adelyn Wilson who identified two Dutch jurists (Gudelinus and Vinnius) as being used by Stair during the drafting of the Institutions. It argued that the approach and ideas which Stair found in Gudelinus and Vinnius contributed in part to the development of Stair's own contractual thought and a more liberal approach to his Roman law sources.
Conference announcements by Stephen Bogle
Seminar, Downing College, Cambridge, 23-24 March 2018.
Convener: Dr Edward Cavanagh.
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Papers by Stephen Bogle
Drafts by Stephen Bogle
In 2008 Sir Neil Maccormick said: “Despite [the] relative neglect of this work by historians of political and philosophical ideas, it is one of the greatest legal works in the English language.” (Maccormick, Practical Reason in Law and Morality (2008) 100). Maccormick was speaking of James Dalrymple, Viscount Stair’s (1616-1695) Institutions (1681; 1693). In this paper I intended to unpack Stair’s natural law theory. I will remark upon how he navigated between the rationalism of Hugo Grotius on the one hand and the Calvinism of the Church of Scotland on the other hand. Stair had the difficult task of acknowledging that man was depraved but nonetheless he needed to explain how man was capable of establishing a society. I will explain why he encountered this tension and how he resolved it. I will demonstrate that Stair conceptualised knowledge of natural law as emanating from two sources; that is, rational enquiry into the (i) utility of positive law and (ii) axiomatic principles known innately to man. This paper offers a micro-study of a particular natural law theory; but it does so with the hope that it might contribute to a wider understanding of how theories of human nature interact with moral and legal discourse. With that in mind, it will offer some broader reflections on the (perpetual?) struggle of jurists to quadrate theories of human nature and theories of normativity.
Talks by Stephen Bogle
Conference announcements by Stephen Bogle
In 2008 Sir Neil Maccormick said: “Despite [the] relative neglect of this work by historians of political and philosophical ideas, it is one of the greatest legal works in the English language.” (Maccormick, Practical Reason in Law and Morality (2008) 100). Maccormick was speaking of James Dalrymple, Viscount Stair’s (1616-1695) Institutions (1681; 1693). In this paper I intended to unpack Stair’s natural law theory. I will remark upon how he navigated between the rationalism of Hugo Grotius on the one hand and the Calvinism of the Church of Scotland on the other hand. Stair had the difficult task of acknowledging that man was depraved but nonetheless he needed to explain how man was capable of establishing a society. I will explain why he encountered this tension and how he resolved it. I will demonstrate that Stair conceptualised knowledge of natural law as emanating from two sources; that is, rational enquiry into the (i) utility of positive law and (ii) axiomatic principles known innately to man. This paper offers a micro-study of a particular natural law theory; but it does so with the hope that it might contribute to a wider understanding of how theories of human nature interact with moral and legal discourse. With that in mind, it will offer some broader reflections on the (perpetual?) struggle of jurists to quadrate theories of human nature and theories of normativity.