Tuesday, January 22, 2008

Mikhail on Blumenthal: Mind of the Moral Agent

Georgetown University Law Professor John Mikhail has posted a paper, "Scottish Common Sense and Nineteenth-Century American Law: A Critical Appraisal," commenting on University of Minnesota Professor Susanna Blumenthal's "The Mind of a Moral Agent: Scottish Common Sense and the Problem of Responsibility in Nineteenth-Century American Law." Both are forthcoming in the Law and History Review in spring 2008. And I think you'll enjoy them both.

Here is Mikhail's abstract:
In her insightful and stimulating article, The Mind of a Moral Agent, Professor Susanna Blumenthal traces the influence of Scottish Common Sense philosophy on early American law. Among other things, Blumenthal argues that the basic model of moral agency upon which early American jurists relied, which drew heavily from Common Sense philosophers like Thomas Reid, generated certain paradoxical conclusions about legal responsibility that later generations were forced to confront. "Having cast their lot with the Common Sense philosophers in the 'formative era' of American law," she explains, "early republican jurists thus bequeathed to future generations of lawyers a problem of responsibility of no small proportions."

In this invited comment for Law and History Review, I first argue that the problems of responsibility on which Blumenthal focuses our attention are not specific to Scottish Common Sense, but rather descend straight from the core of the Western legal and moral tradition. The same problems would arise if Common Sense philosophy had never existed. Second, even if it is true that Common Sense exerted a powerful influence on American academic life in the antebellum period, it still must be shown that this influence extended to specific features of American law, which remained at the time almost entirely the product of English common law. Blumenthal has not met this burden, however, because she does not identify any specific doctrines or judicial opinions that might support the conclusion that early American jurists "were steeped in Common Sense philosophy" or sought to construct "an indigenous legal tradition, built on the universalistic premises of Common Sense." Rather, her defense of this interesting claim is highly selective, resting mainly on the writings of Wilson and Hoffman. Third, although Blumenthal claims that there is something puzzling or paradoxical from a Common Sense perspective about the diversity of moral opinion, the existence of irrational or evil actors, or the fact that individuals often disregard the dictates of their moral sense, she does not adequately explain what exactly that paradox is, nor why Common Sense adherents should be troubled by it. Locke had made objections like these familiar as a result of his attack on innate practical principles in his Essay Concerning Human Understanding. Yet already by the eighteenth century, critics like Shaftesbury, Hutcheson, Reid, and their followers had rejected Locke's arguments as based on mere confusion and fallacy. Finally, a key point that Blumenthal neglects, as does John Witt in his elegant chapter on Wilson, is that Common Sense philosophers also supplied positive scientific arguments for innate moral knowledge, based on observation and induction rather than introspection, whose intellectual worth has proved remarkably durable. We risk misunderstanding Scottish Common Sense and its place in the history of ideas if we overlook contributions like these, or remain content to think of it merely as an unduly optimistic philosophy, which relied mainly on introspection to affirm the innate goodness of humankind, but which gave way to a more accurate theory of human nature as the nineteenth century unfolded. Certainly there is some truth to this description, but it is only part of the story, and a potentially misleading one.
I hope to talk more about this important topic at some point; however, in the interim I have one thought and one question. It seems to me as though antebellum Americans drew upon a number of intellectual traditions and applied them rather haphazardly. So it is not surprising that we see fragments of different traditions; and I suspect that as we look at different subjects within law, we are likely to see different traditions in varying degrees. (Not earth-shaking observation, but it may explain some of the differences in Mikhail and Blumenthal's findings.)

Now the question. Mikhail says at one point (170): "even if it is true that Scottish Common Sense exerted a powerful influence on American academic life in the antebellum period, it still must be shown that this influence extended to specific features or practices of American law, which after all remained at the time almost entirely the product of English common law." [emphasis in original]. So my question for legalhistoryblog readers: do we agree with the statement that American law remained in the antebellum period "almost entirely the product of the English common law?" Maybe this is where my comment in the previous paragraph is useful--perhaps it depends on one's perspective.

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