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Metaphysics, Moral Sense, and the Pragmatism of the Law

  • Susanna L. Blumenthal
  • In response to commentaries on:


The authors of these insightful and stimulating commentaries all express skepticism about the role I assign to the Scottish Common Sense philosophy in my historical analysis, though their reasons for doing so are strikingly at odds with each other. Sarah Seo and John Witt concede the importance of the Common Sense philosophy at a theoretical level, even as they call attention to certain “competitor theories” of human nature, noting that these darker views of the self may have proved more influential in the framing of the American constitution. However, they go on to contend that all of this philosophizing about the human mind was actually of little consequence in the everyday adjudication of civil and criminal liability, as judges found more practical means of resolving “the otherwise intractable questions of moral responsibility” left unanswered by the Scottish philosophy. John Mikhail, by contrast, appears to be far more sanguine about the tractability of these questions, from a philosophical standpoint, going so far as to suggest that they were more or less resolved by British moralists before the Scottish Common Sense school even came into being. What truly set the Common Sense philosophers apart from their predecessors, and ought to determine their place in this history of ideas, Mikhail concludes, was the manner in which they contributed to the scientific process of tracing out the inner structure and innate capacities of “the moral mind”—a topic that is currently of intense interest in the cognitive and brain sciences.



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1. Seo, Sarah A. and Witt, John Fabian, “The Metaphysics of Mind and the Practical Science of the Law,” Law and History Review 26 (2008): 161–66.

2. Mikhail, John, “Scottish Common Sense and Nineteenth-Century American Law: A Critical Appraisal,” Law and History Review 26 (2008): 167–75.

3. Mikhail, , “Scottish Common Sense,” 174.

4. See generally, Fiering, Norman, Jonathan Edwards's Moral Thought and Its British Context (Chapel Hill: University of North Carolina Press, 1981), 6268, 136–38;Meyer, Donald, The Instructed Conscience: The Shaping of the American National Ethic (Philadelphia: University of Pennsylvania Press, 1972), 4350.

5. Rush, Benjamin, “An Inquiry into the Influence of Physical Causes upon the Moral Faculty,” in Medical Inquiries and Observations (Philadelphia: T. Dobson, 1793), 2:25; for other examples see Witherspoon, John, Lectures on Moral Philosophy (Princeton: Princetonc University Press, 1912), 1011;Hoffman, David, Legal Outlines: Being the Substance of a Course of Lectures Now Delivering in the University of Maryland (Baltimore: Edward J. Coale, 1829), 2829, 36.

6. See Howe, Daniel Walker, Making the American Self: Jonathan Edwards to Abraham Lincoln (Cambridge: Harvard University Press, 1997), 4649;Meyer, , The Instructed Conscience, 41.

7. See Blumenthal, Susanna, “The Mind of a Moral Agent: Scottish Common Sense and the Problem of Responsibility in Nineteenth-Century American Law,” Law and History Review 26 (2008): 99159.

8. See Kloppenberg, James, “The Theory and Practice of American Legal History,” Harvard Law Review 106 (1993): 1332.

9. Wayland, Francis, The Elements of Moral Science (Boston: Gould, 1850), 4853.

10. Story, Joseph, A Discourse (Boston: Hilliard, 1829), 10.

11. Mikhail, , “Scottish Common Sense,” 171.

12. Witt, John, Patriots and Cosmopolitans: Hidden Histories of American Law (Cambridge: Harvard University Press, 2007), 20;Seo, and Witt, , “Metaphysics of Mind,” 161.

13. Howe, , Making the American Self, 78103;Curti, Merle, Human Nature in American Thought: A History (Madison: University of Wisconsin Press, 1980), 106–12, 118–26, 129–30.

14. Mikhail, , “Scottish Common Sense,” 171–72.

15. May, Henry, The Enlightenment in America (Oxford: Oxford University Press, 1978), 207, 346;McCloskey, Robert Green, “Introduction,” in The Works of James Wilson, ed. McCloskey, Robert Green (Cambridge: Harvard University Press, 1967), 3.

16. Hoffman, , A Course of Legal Study (Baltimore: Coale and Maxwell, 1819), vii, xv–xvi, xxviii–xxix, 58.

17. The relationship between Common Sense philosophy and common law adjudication is more fully taken up in Blumenthal, Susanna L., “The Default Legal Person,” UCLA Law Review 54 (2007): 1135.

18. Howe, , Making the American Self, 31.

19. Blumenthal, , “The Default Legal Person,” 11941203. See generally,Dershowitz, Alan, “The Origins of Preventive Confinement in Anglo-American Law, Part II: The American Experience,” University of Cincinnati Law Review 43 (1974): 781846.

20. Blumenthal, , “The Default Legal Person,” 1253–60.

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Metaphysics, Moral Sense, and the Pragmatism of the Law

  • Susanna L. Blumenthal
  • In response to commentaries on:


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