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Metaphysics, Moral Sense, and the Pragmatism of the Law

Published online by Cambridge University Press:  18 August 2010

Susanna L. Blumenthal
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Extract

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.

Type
Forum: Response
Information
Law and History Review , Volume 26 , Issue 1 , Spring 2005 , pp. 177 - 185
Copyright
Copyright © the Board of Trustees of the University of Illinois 2008

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References

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.CrossRefGoogle Scholar

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

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

4. See generally, Fiering, Norman, Jonathan Edwards's Moral Thought and Its British Context (Chapel Hill: University of North Carolina Press, 1981), 62–68, 136–38;Google ScholarMeyer, Donald, The Instructed Conscience: The Shaping of the American National Ethic (Philadelphia: University of Pennsylvania Press, 1972), 43–50CrossRefGoogle Scholar.

5. Rush, Benjamin, “An Inquiry into the Influence of Physical Causes upon the Moral Faculty,” in Medical Inquiries and Observations (Philadelphia: T. Dobson, 1793), 2:2–5;Google Scholar for other examples see Witherspoon, John, Lectures on Moral Philosophy (Princeton: Princetonc University Press, 1912), 10–11;CrossRefGoogle ScholarHoffman, David, Legal Outlines: Being the Substance of a Course of Lectures Now Delivering in the University of Maryland (Baltimore: Edward J. Coale, 1829), 28–29, 36Google Scholar.

6. See Howe, Daniel Walker, Making the American Self: Jonathan Edwards to Abraham Lincoln (Cambridge: Harvard University Press, 1997), 46–49;Google ScholarMeyer, , The Instructed Conscience, 41Google Scholar.

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): 99–159.CrossRefGoogle Scholar

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

9. Wayland, Francis, The Elements of Moral Science (Boston: Gould, 1850), 48–53.Google Scholar

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

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

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

13. Howe, , Making the American Self, 78–103;Google ScholarCurti, Merle, Human Nature in American Thought: A History (Madison: University of Wisconsin Press, 1980), 106–12, 118–26, 129–30Google Scholar.

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

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

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

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): 1135Google Scholar.

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

19. Blumenthal, , “The Default Legal Person,” 1194–1203. See generally,Google ScholarDershowitz, Alan, “The Origins of Preventive Confinement in Anglo-American Law, Part II: The American Experience,” University of Cincinnati Law Review 43 (1974): 781–846Google Scholar.

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