The property theory of Lord Kames (Henry Home)

Abstract

Lord Kames (Henry Home) (1696–1782) was a well-known jurist, philosopher and judge in the Scottish Enlightenment, whose writings on aesthetics and literary criticism, especially, were very significant in the eighteenth century and later, not only in Britain and the United States, but also in France and Germany. His works on law and legal history were important mainly during his lifetime, but at least one aspect of his legal writings deserves special attention today: his concept of property, which he never stated as one comprehensive theory. Nevertheless, it pervades most of his work. This article seeks to extract and piece together, from a number of his legal and non-legal works, the elements of this quite original property theory which comprises legal-doctrinal, philosophical-theoretical, historical, sociological and psychological, aesthetic-moral and economic aspects. Together these elements can be restated as a surprisingly coherent property system, which may enrich discussions in modern property theory.