Law and the Modern Mind: Consciousness and Responsibility in American Legal Culture

Author: Susanna L. Blumenthal
Publisher: Cambridge, MA: Harvard University Press, 2016. 400p.
Reviewer: Chloë Kennedy | May 2016

In Law and the Modern Mind: Consciousness and Responsibility in American Legal Culture, Susanna Blumenthalprovides a compelling account of postrevolutionary American conceptions of consciousness and liability, painstakingly reconstructed from an impressive array of legal and non-legal sources. Drawing on case reports, legal commentaries, and treatises by jurists and alienists, Blumenthal deftly excavates the often-latent assumptions about free will, self-determination and human nature that underpinned legal and medical notions of capacity across the nineteenth century. At the same time, she locates these assumptions within their cultural context, rendering vivid the relationships between law and prevailing theological, metaphysical and political commitments. The mental dexterity required to comprehend and synthesize these materials alone sets Blumenthal’s work apart. Her thoroughgoing interdisciplinarity also helps demonstrate how co-constitutive these relationships were. Though law “constituted a distinct conceptual scheme with its own purposes, logics and instrumentalities” it was “manifestly influenced by…broader social, political and economic forces” (p. 273), and this influence ran both ways. As Blumenthal argues, judges and jurists performed “important cultural work” (p. 17) in upholding the ideal of the liberal, self-governing subject that was presumed, and inculcated, in the wider, extra-legal realm. Legal and non-legal actors thus drew on a shared set of understandings and expectations which, through their actions, they served to reinforce.

Of course, these expectations and understandings shifted during the period under Blumenthal’s consideration. In the introduction to the book (and more fully in Chapter One), Blumenthal explains how during the revolutionary era more liberal forms of Protestantism gradually succeeded the Calvinist doctrines of divine determinism and innate depravity. These more liberal forms of Protestantism were optimistic, emphasizing the benevolence of God, the innate goodness of man and the freedom of his will. In this spirit, the Scottish Common Sense philosophers, whose works were highly influential in postrevolutionary America, asserted that man was blessed with a host of innate rational, intellectual and moral capacities, which gave him the power to control and shape his own destiny. By Blumenthal’s account, this confidence in the capacities of man formed the bedrock of the law’s prototypical responsible agent. But this conception of subjecthood raised deep and difficult questions. If man were blessed with innate moral and rational faculties, how could aberrant behaviour be explained? If reason and moral sense were universal gifts, why did people act in immoral, irrational or impulsive ways? These questions drew manifold and variegated responses from moralists and alienists over the course of the century, but none succeeded in solving what appeared to be intractable quandaries. In fact, by suggesting that misconduct might be caused by mental defects, which could in turn be attributed to environmental or physical factors, these commentators merely made matters worse. How were judges faced with claims of incapacity to distinguish between causes that ought to preclude liability, i.e. disease, from those that ought not to, i.e. depravity?

Problems like these had considerable significance in postrevolutionary America. Here, as Blumenthal argues, the unfettered, sovereign individual was a potent ideal. How disturbing, therefore, to confront its inherent fragility; how unsettling to doubt its veracity. Unpalatable as these uncertainties were, jurists and judges had no choice but to face them and to contend with the consequences to which they gave rise. The ways in which they did so form the basis of Part Two (Chapters Three through Seven) of Law and the Modern Mind. In these chapters, Blumenthal examines five substantive areas of law in which civil capacity suits were prevalent. She justifies her civil law focus by explaining that while homicide trials in which the defendant pled insanity attracted, and continue to attract, considerable attention, deliberations on competency and responsibility were “more commonly found on the civil than the criminal side of the docket in this period” (p. 90).

Chapter Three considers challenges to unnatural dispositions: wills in which the testator sought to distribute his estate in ways that deviated from established norms. Adhering to the broad themes of the book, Blumenthal situates these disputes, and the paradigm competent testator who lay at their heart, alongside contemporaneous medico-legal debates about sanity, prevailing philosophical views on the intellectual, volitional and emotional faculties of mankind, and pressing concerns about the balance between liberty and social order. Through this analysis she exposes how existing scholarly depictions of moralistic judges struggling to uphold conventional morality in the face of capricious testators are insufficiently nuanced. In reality, witness testimony, arguments of counsel, and judges’ charges to the jury expressed the “deep and abiding tensions and ambiguities in the liberal conception of self-possession” (p. 108). They were therefore irreducibly complex and, at times, contradictory. While some judges protected the testator’s right to dispose of property in whichever way he saw fit, others saw wills that departed from natural justice – favoring concubines or manumitted slaves, for example – as evidence of mental unsoundness, and were inclined to overturn them on that basis. On the whole, however, judges were prone to favor untrammelled testamentary freedom, particularly by the end of the century when beliefs in a ubiquitous common sense and faith in an objective means of determining competence had come under unbearable strain.

These changes are evidenced in the legal test of insanity which, as Blumenthal demonstrates in Chapter Four, was fraught in both the civil and criminal contexts. As the universalistic morality of the Common Sense philosophers lost its appeal and an irrefutable test of insanity remained elusive, courts towards the end of the century embraced a narrow definition of insanity that excluded a wide range of immoral and irregular conduct. Before assuming this position, the courts had applied, and were urged by counsel to apply, various other formulations, each aiming to distinguish the incapacitated from the merely eccentric testator. According to Blumenthal, when the courts eventually embraced their narrow conception of insanity they did so because of the high value they placed on human freedom, aware that they were unable to establish the truth of the complex existential matters that were in issue.

Outside the realm of testation, judges were forced to grapple with the effect of insanity upon contractual relations. In Chapters Five and Six, Blumenthal considers the challenges posed by “improvident” contracts and deeds, concentrating on commercial transactions, divorce suits and contracts of care. At the start of her analysis, she points out the links that emerged between commerce and madness during the era of speculation (note how “embarrassment”, “derangement” and “depression” doubled up as terms of psychological and pecuniary distress). New and untested means of procuring wealth were thought to induce disappointed expectations, unmet obligations and nervous breakdowns. Indeed, the dizzying effects of economic expansion were felt in courtroom encounters, where judges attempted to establish and maintain a set of rules to govern the market. This task was challenging on several fronts, from trying to determine the relevance of mental ability to a contract’s validity to establishing the effect of incompetence on the contract itself. Suicide proved to be an especially vexing issue. As Blumenthal shows in the latter portion of Chapter Five, a self-inflicted death appeared, perplexingly, to be both deliberate and deranged to the judges charged with ruling on the enforceability of life insurance policies.

Similarly difficult to comprehend were the contractual arrangements drawn up between family members and others sharing an intimate bond. In Chapter Six, Blumenthal describes how nineteenth century jurists treated economic transactions between those in close relationships with suspicion, on account of the power imbalances at play. They also perceived these transactions as threatening the reified boundary between the domestic and commercial realms. Whilst the market was a place of acerbic individualism, the home was a supposed haven of benign dependency. So-called contracts of care between parents and their children were therefore regarded as symptoms of a breakdown of natural order that judges were reluctant to endorse. Blumenthal’s study nevertheless reveals that such practices would not lead to any conclusive presumptions of insanity or unfairness. Indeed, they generated conflicting judgments: some deemed these inter-generational transactions to be a natural expression of filial affection, whereas others suggested that aging parents ought to be robustly protected when making inter vivos transfers. A further contested issue pertaining to the governance of intimate relations was insanity within marriage. In the main, judges were hesitant to dissolve marriages on grounds of either incapacity or fraud but over time, as courts were further exposed to the hardships endured within marriages afflicted by post-nuptial insanity, judges were roused to rethink their position.

In the final substantive chapter of the book, Blumenthal examines tort liability of the insane – an issue which raised thorny questions of fault and causation. Many jurists were untroubled by imposing tort liability for acts of an insane person because this was to award compensation rather than inflict punishment. Others doubted whether an insane tortfeasor could be considered a “juridical cause” – a “responsible originator” – and therefore responsible for either civil or criminal acts in any meaningful sense. Beginning with an examination of the 1886 litigation to determine liability for the wrecking of the Emily T Sheldon, Blumenthal charts the rise of the “jural man” – the man of ordinary mental and physical capacity who provided an objective standard of liability – against the backdrop of the shift from fault and responsibility to insurance of risk that some scholars have identified towards the end of the nineteenth century. This did not amount to the subjugation of concerns over consciousness and responsibility, however. As Blumenthal notes, debates over the role of mental state in determining liability intensified in the twentieth century, when arguments about the merits of subjective and objective tests came to the fore. As with the previous chapters mentioned, this short summary cannot do justice to the intricate exposition of nineteenth century tort liability that Blumenthal crafts, but it confirms that misgivings and ambivalence also characterized this area of law.

Following these substantive chapters, Blumenthal draws together the themes of the book as a whole, reasserting the importance of understanding capacity contests not only as adminicles from which to construe legal history but as windows into “Americans’ struggles to make sense of human freedom, agency, and accountability” (p. 269). She also convincingly reasserts her claim that many of the contradictions and tensions manifest in the law’s treatment of mental incapacity were entrenched within the liberal conception of the self. The antebellum confidence in mankind’s capacities, fostered by the Enlightenment education of members of the bench and bar, was ruinously flimsy in the face of the behavioral vagaries committed by mentally unsound individuals. Even as jurists and lawyers veered towards pragmatism, upholding ideals that they knew to be unrealizable in an arbitrary world, the fact that adjudicating matters of consciousness and liability implicated age-old conundrums about freedom and determinism was inescapable.

Despite the antiquity of these debates, they were performed in different ways with different outcomes and motivations at different times. This is what Blumenthal’s remarkable ability to work “at the intersection of legal, intellectual, and cultural history” (p. 16) makes clear. Critics might doubt whether Blumenthal has successfully supported the influence she posits between abstract intellectual movements, such as Common Sense philosophy, and concrete legal developments. To be sure, she cites examples of prominent figures, including James Wilson, drawing on Common Sense ideas and she refers to the hegemonic position of Common Sense philosophy in nineteenth century American thought more generally. A good deal of the explanatory work is done by inference, however, for the claims Blumenthal makes are as much (perhaps more) about conceptual fit, and cultural currency, as they are about causation. With an appreciation of this in mind they are eminently convincing.

To conclude with some remarks on presentation, aside from the irritating use of endnotes, the book is exemplary. Blumenthal’s writing is engaging and spritely, managing to convey recondite ideas and arguments with enviable clarity and precision.

Dr. Chloë Kennedy, Lecturer in Criminal Law, University of Edinburgh School of Law