Though only three years separate the publication of the Institutions of Stair and Mackenzie and they are from the same country, they seem to be from different worlds.32 The very shortness of Mackenzie’s treatment enables him to avoid some of the pitfalls. Thus, the law of nature, as applying also to animals, can be rapidly dismissed as “rather innate instinct”. Law of nations, without much ado, can be divided into () natural law, applying only to humans, which is described without much fuss, and () basically international law. But the latter contains an ugly transformation from Justinian’s Institutes. This international law includes “the obligations arising from promises, or contracts”. We have a reminiscence from theInstitutes of that part of private law that applies to citizens and foreigners alike. And the reminiscence does not fit international law, and is quite unnecessary. But, at least, the short treatment means that Mackenzie can get rid of paene, “almost all of the contracts”. Mackenzie’s treatment means that he does not usually cite his sources. Still, he has not quite broken free from Justinian. That is what is important for us. Thus, his first account of the law of nature corresponds to that of the Institutes and is unnecessary.33 Then, following the later tradition he divides the law of nations into (a) the law of nature or of right reason; (b) international law. But under (b) he illogically includes contracts, a reminiscence of Justinian’s inclusion of private law applying also to foreigners as ius gentium.. The primary message of this talk is the importance of the need for authority for law. To fail to realize this need is to give up any attempt to understand law. The phenomenon of transformation depends on this need. To illustrate the issue I have chosen one example of transformation that is fundamental for at least three reasons. First, as I have already stressed, the texts of Justinian we have looked at were 32 Stair’s work circulated in manuscript some years before. 33 But we should note in passing the poverty of his treatment of natural law. But this is dictated by the scope of the task he set himself.
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