“There are three things that might be meant by ‘the emergence of the modern mind’: first, the emergence of modern ways of thinking about the universe; second, the emergence of modern conceptions of the mind; and third, the emergence of the mind itself with its distinctive human characteristics.” The very ambiguity of this attributive property, or definitional conundrum, hints at the difficulty of writing about the mind, and by necessary implication, human nature. Add to this that “the mind” is contested territory. Generations of theologians, philosophers, scientists and doctors, and jurists have fought over which discipline will control the definitional contours of “ the mind.” For the law, who controls the act of defining “the mind” and the scope of its definition is fraught with consequence. The presence of a capable mind, however defined, marks the boundaries of legal culpability in both criminal and civil law.
Into this thicket walks legal historian Susanna Blumenthal, and in a masterful study titled Law and the Modern Mind, simultaneously both describes the battles among scientists, doctors, and jurists in the period following the Revolutionary War and up through the Gilded Age, and takes on traditional scholarship in legal history as to who this person or “mind” is. Her study not only provides an alternative account of the formation of American character, but also provides a series of detailed portraits of the various turning points in the formation of that character, and the legal determination of capable, accountable personhood.
This review essay will proceed in three parts followed by a conclusion that assesses the success and contribution of her work. The first section sketches her approach to legal history and her point of view. Professor Blumenthal takes on the monumental task of challenging the received wisdom of legal historians such as Willard Hurst. Second, this review will paint a condensed portrait of Blumenthal’s methodology. Her book and its underlying analysis draw on a breathtaking base of source materials: Hundreds of cases, treatises, and biographical notes are woven into her observations. The careful depiction and analysis of these materials is central to establishing her thesis: that the traditional account of the development of American law, as a unitary response to wealth accumulation and the growth of the industrial society, paints a false portrait of unanimity of opinion. Rather, she argues, jurists were faced with competing accounts of the mind and legal responsibility; more often than not they chose pragmatically among these accounts, so it is overly simplistic to characterize American legal developments as a unitary or linear march of progress. Importantly, in contrast to the usual approaches in the legal history literature that focus on criminal law, Blumenthal turns her attention to cases in the areas of wills, family law, contracts (particularly insurance contracts), and torts. Finally, the third part of this review will outline what is one of the most powerful, and, in my mind, important contributions of her book—an in-depth analysis of the intersection of law and medicine in the period under study. This analysis, as I will note, can be brought to bear on modern conversations involving law, genetics, and neuroscience. Some lessons about the use of science in law that emerge from her study are worth repeating.