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The Metaphysics of Mind and the Practical Science of the Law

Published online by Cambridge University Press:  18 August 2010

Sarah A. Seo  and
John Fabian Witt
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Extract

In “Mind of a Moral Agent,” Susanna Blumenthal elegantly limns the rise and partial fall of the common sense theory of moral responsibility in American law. As Blumenthal convincingly describes it, the problem for early American jurists was nothing less than to solve the paradox of determinism and free will. How can the law declare someone morally culpable unless we are free to choose our own ends?

Type
Forum: Comment
Information
Law and History Review , Volume 26 , Issue 1 , Spring 2005 , pp. 161 - 166
Copyright
Copyright © the Board of Trustees of the University of Illinois 2008

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References

1. 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): 99–159CrossRefGoogle Scholar.

2. On Wilson, see Witt, John Fabian, Patriots and Cosmopolitans: Hidden Histories of American Law (Cambridge: Harvard University Press, 2007)CrossRefGoogle Scholar.

3. Pocock, John Greville Agard, The Machiavellian Moment: Florentine Political Thought and the Atlantic Republican Tradition (Princeton: Princeton University Press, 1975)Google Scholar; Bailyn, Bernard, The Ideological Origins of the American Revolution (Cambridge: Harvard University Press, 1967)Google Scholar; Wood, Gordon S., The Radicalism of the American Revolution (New York: Knopf, 1991)Google Scholar.

4. See The Federalist Papers, ed. Rossiter, Clinton (New York: New American Library, 1961)Google Scholar.

5. On Wilson and Madison, see Witt, Patriots and Cosmopolitans.

6. Compare Johnson, Walter, “Inconsistency, Contradiction, and Complete Confusion: The Everyday Life of the Law of Slavery,” Law and Social Inquiry 22 (1997): 405CrossRefGoogle Scholar.

7. See Grob, Gerald, The State and the Mentally III (Chapel Hill: University of North Carolina Press, 1966)Google Scholar; Grob, Gerald, Mental Institutions in America (New York: Free Press, 1973)Google Scholar; Rothman, David, The Discovery of the Asylum (Boston: Little, Brown, 1971)Google Scholar.

8. Keedy, Edwin R., Chairman, , “Insanity and Criminal Responsibility (Report of Committee B of the Institute),” Journal of the American Institute of Criminal Law and Criminology 92 (1911): 521, 531CrossRefGoogle Scholar.

9. The four states were Indiana, Nebraska, Rhode Island, and South Dakota.

10. See Holmes, Oliver Wendell, The Common Law (Boston: Little, Brown, 1881), 108Google Scholar.

11. Fletcher, George, “The Fault of Not Knowing,” Theoretical Inquiries in Law 3 (2002): 265CrossRefGoogle Scholar; Rabin, Robert, “The Fault of Not Knowing, A Comment,” Theoretical Inquiries in Law 4 (2003): 427CrossRefGoogle Scholar.

12. Seo, Sarah A., “Negligence Standards, the Notice Principle, and Private Ordering in Early American Tort Law” (May 2007,Google Scholar unpublished manuscript, on file with author).

13. Holmes, , Common Law, 109, n. 10 (emphasis added)Google Scholar.

14. Compare McAdoo v. Richmond & D.R. Co., 11 S.E. 316 (N.C. 1890)Google Scholar with Daily v. Richmond & D.R. Co., 11 S.E. 320 (N.C. 1890).Google Scholar The facts in both railroad crossing cases, decided on the same day, are substantially the same, except that in Daily, the pedestrian was “an idiot.” Though the North Carolina Supreme Court denied recovery to both plaintiffs, the rationale for its decisions was different in each case. McAdoo's claim failed because of the jury's subsequent finding of contributory negligence in failing to stop, look, and listen for approaching trains before crossing; whereas Daily's claim failed because there had been no evidence “tending to show that the engineer knew him when he saw him upon the track, or could … have seen him, and had actual knowledge … for the belief that, on account of some mental or physical infirmity, he could not assume that plaintiff would step off the track in time to escape injury.”