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Scottish Common Sense and Nineteenth-Century American Law: A Critical Appraisal

Published online by Cambridge University Press:  18 August 2010

John Mikhail
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Extract

One overriding concern I have with Susanna Blumenthal's insightful and stimulating article, “The Mind of a Moral Agent: Scottish Common Sense and the Problem of Responsibility in Nineteenth-Century American Law,” is whether there is anything sufficiently distinctive about Scottish Common Sense philosophy that justifies the role Blumenthal ascribes to it. In a representative passage, she writes:

Common Sense philosophy left would-be “moral managers” with a puzzle. If rational and moral faculties were innate and universal, what explained the great conflicts among men concerning matters of belief, manners, and morals … leading some to commit acts that were … patently irrational or downright evil? And to the extent that there was a common sense about the dictates of reason, propriety, and moral sense, why did some individuals act in defiance of them?

Type
Forum: Comment
Information
Law and History Review , Volume 26 , Issue 1 , Spring 2005 , pp. 167 - 175
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): 99–159.CrossRefGoogle Scholar

2. Ibid., 118.

3. Rush, Benjamin, “An Enquiry into the Influence of Physical Causes Upon the Moral Faculty,” in Two Essays on the Mind, ed. Carlson, Eric T. (1786; New York: Brunner/Mazel, 1972), 1.Google Scholar

4. Ibid., 3.

5. Adams, , Works, 4:449;Google Scholar quoted in White, Morton, The Philosophy of the American Revolution (New York: Oxford University Press, 1978), 97–98Google Scholar.

6. See, e.g., Witherspoon, James, Lectures on Moral Philosophy (Philadelphia: William W. Woodward, 1822), 24;Google ScholarWilson, James, The Works of James Wilson, ed. McCloskey, Robert Green (Cambridge: Belknap Press, 1967), 132–33;Google ScholarHoffman, David, A Course of Legal Study (Philadelphia, 1846), 106–7;Google ScholarMcCosh, James, The Intuitions of the Mind Inductively Investigated (1860), 286Google Scholar.

7. Bentham, Jeremy, An Introduction to the Principles of Morals and Legislation, ed. Burns, J. H. and Hart, H. L. A. (1780/1789; Oxford: Oxford University Press, 1996), 26, note d.Google Scholar

8. Austin, John, The Province of Jurisprudence Determined, ed. Rumble, Wilfrid E. (1832; Cambridge: Cambridge University Press, 1995), 81.CrossRefGoogle Scholar

9. Ibid., 92. On Bentham's and Austin's rejection of the moral sense hypothesis, see generally Mikhail, John, “‘Plucking the Mask of Mystery from Its Face’: Jurisprudence and H. L. A. Hart,” Georgetown Law Journal 95 (2007): 733Google Scholar.

10. Letter of Thomas Reid to David Hume (18 March 1763), in Reid, Thomas, An Inquiry into the Human Mind on the Principles of Common Sense, ed. Brookes, Derek R. (1764; Edinburgh: Edinburgh University Press, 1997), 264Google Scholar.

11. See generally Meyer, D. H., The Instructed Conscience: The Shaping of the American National Ethic (Philadelphia: University of Pennsylvania Press, 1972).Google Scholar See also Bailey, Mark Warren, Guardians of the Moral Order: The Legal Philosophy of the Supreme Court, 1860–1910 (Dekalb: Northern Illinois University Press, 2004), 24–84Google Scholar.

12. See Wayland, Francis, The Elements of Moral Science (1835; Cambridge: Belknap Press, 1963).CrossRefGoogle Scholar

13. Diman, J. Lewis, “The Late President Wayland,” Atlantic Monthly 21 (1868): 72Google Scholar; quoted in Joseph L. Blau, “Introduction,” in Wayland, , Elements of Moral Science, ix.Google Scholar Wayland did eventually treat the topic of perceptual acquaintance in his Elements of Intellectual Philosophy (1854)Google Scholar.

14. Miller, Perry, “Introduction,” in American Thought: Civil War to World War I, ed. Miller, Perry (New York: Rinehart, 1954), x.Google Scholar For a useful introduction to the problems of epistemology and sense perception that occupied Locke, Hume, and Reid, see generally Yolton, John W., John Locke and the Way of Ideas (Oxford: Oxford University Press, 1956);Google ScholarYolton, John W., Perceptual Acquaintance from Descartes to Reid (Minneapolis: University of Minnesota Press, 1984)Google Scholar.

15. See, e.g., Blumenthal, , “Mind of a Moral Agent,” 129, 140.Google Scholar

16. Ibid., 119.

17. Ibid., 120.

18. See, e.g., Hall, Mark David, The Political and Legal Philosophy of James Wilson, 1742–1798 (Columbia: University of Missouri Press, 1997);Google ScholarStimson, Shannon C., “‘A Jury of the Country’: Common Sense Philosophy and the Jurisprudence of James Wilson,” in Scotland and America in the Age of Enlightenment, ed. Sher, Richard B. and Smitten, Jeffrey R. (Edinburgh: Edinburgh University Press, 1990), 193.Google Scholar Wilson's most famous judicial opinion begins by quoting Reid. See Chisholm v. Georgia, 2 U.S. 419, 453 (1793)Google Scholar (Wilson, J.) (quoting Reid, , An Inquiry into the Human Mind, 14)Google Scholar.

19. See generally McCloskey, “Introduction,” in Works of James Wilson.

20. The Records of the Federal Convention of 1787, ed. Farrand, Max (1911; New Haven: Yale University Press, 1966), 1:68.Google Scholar

21. Ibid., 2:31.

22. Ibid., 1:605.

23. “The grand, leading principle, towards which every argument unfolded in these pages directly converges, is the absolute and essential importance of human development in its richest diversity.” Mill, John Stuart, On Liberty, ed. Rapaport, Elizabeth (1859; Indianapolis: Hackett, 1978), xxivGoogle Scholar (quoting Humboldt, Wilhelm von, Sphere and Duties of Government [1794; London, 1856]), 65Google Scholar.

24. See The National Lawyers Guild: From Roosevelt to Reagan, ed. Ginger, Ann Fagan and Tobin, Eugene M. (Philadelphia: Temple University Press, 1987).Google Scholar

25. See generally Hoffman, , Course of Legal Study, 53–131.Google Scholar It is unclear how one should assess the fact that Reid and Beattie, along with the Bible, Cicero, Paley, and Hoffman's own Legal Outlines (1829),Google Scholar are included in the shortest of Hoffman's four courses of study. Howard Schweber contends that this division “reveals Hoffman's ranking of core, secondary, and tertiary texts in the presentation of his philosophy of legal science.” Schweber, Howard, “The ‘Science’ of Legal Science: The Model of the Natural Sciences in Nineteenth-Century American Legal Education,” Law and History Review 17 (1999): 421, 438.Google Scholar If this is correct, then it certainly lends weight to Blumenthal's claim that Hoffman specially commended the Common Sense school to aspiring lawyers. However, another possibility worth considering, which seems more consistent with Hoffman's own explanation of his distinct courses of study, is that they comprise introductory, intermediate, and advanced readings for students of different appetites and abilities. On this interpretation, Blumenthal's claim seems less convincing.

26. See, e.g., Blumenthal, , “Mind of a Moral Agent,” 118.Google Scholar

27. Ibid., 158.

28. See generally Locke, John, An Essay Concerning Human Understanding, ed. Fraser, Alexander Campbell (1689; Oxford: Clarendon Press, 1894), bk. 1, ch. 2, §§ 1–27, 64–91Google Scholar.

29. Quoted in Alexander Campbell Fraser, “Introduction,” in ibid., lxxii.

30. See, e.g., Hutcheson, Francis, An Inquiry into the Original of our Ideas of Beauty and Virtue (London, 1725),Google Scholar “Preface”; Reid, Thomas, Essays on the Active Powers of the Human Mind, ed. Brody, Baruch (1788; Cambridge: MIT Press, 1969), 246–47Google Scholar.

31. Hutcheson, Francis, IIIustrations on the Moral Sense, ed. Peach, Bernard (1728; Cambridge: Belknap Press, 1971), 106.CrossRefGoogle Scholar

32. See, e.g., David Hume, An Enquiry Concerning Human Understanding, reprinted in The Scottish Moralists: On Human Nature and Society, ed. Schneider, Louis (Chicago: University of Chicago Press, 1967), 44–51;Google ScholarSmith, Adam, A Theory of Moral Sentiments, ed. Raphael, D. D. and Macfie, A. L. (1759; Oxford: Oxford University Press, 1976), 200–211;Google ScholarStewart, Dugald, Of the Moral Faculty, in Scottish Moralists, 53, 58Google Scholar.

33. See, e.g., Hutcheson, Francis, A System of Moral Philosophy (Glasgow and London, 1755), bk. I, 91–93,Google Scholar reprinted in Scottish Moralists, 41–43; Reid, , Active Powers, 253–66Google Scholar.

34. See, e.g., Wayland, , Moral Science, 45–46.Google Scholar (“It is not pretended by the believers in a moral sense that man may not, after all, do as he chooses. All that they contend for is that he is constituted with such a faculty and that the possession of it is necessary to his moral accountability. It is in his power to obey it or to disobey it, just as he pleases. The fact that a man may obey or disobey conscience no more proves that it does not exist than the fact that he sometimes does and sometimes does not obey passion proves that he is destitute ofpassion.”)

35. See Witt, John Fabian, Patriots and Cosmopolitans: Hidden Histories of American Law (Harvard: Harvard University Press, 2007), 15–82.CrossRefGoogle Scholar

36. Ferguson, Adam, An Essay on the History of Civil Society, ed. Forbes, Duncan (1767; Edinburgh: Edinburgh University Press, 1966), 34.Google Scholar

37. Indeed, linguists often describe the problem of language acquisition in terms strikingly reminiscent of Ferguson: Jackendoff, Ray, Patterns in the Mind: Language and Human Nature (New York: Basic Books, 1994), 26Google Scholar.

38. See, e.g., Greene, Joshua, “Cognitive Neuroscience and the Structure of the Moral Mind,” in The Innate Mind: Structure and Contents, ed. Carruthers, Peter, Laurence, Stephen, and Stich, Stephen (New York: Oxford University Press, 2005), 338;Google ScholarMahlmann, Matthias, “Ethics, Law, and the Challenge of Cognitive Science,” German Law Journal 8 (2007): 577;Google ScholarMikhail, John, “Universal Moral Grammar: Theory, Evidence, and the Future,” Trends in Cognitive Sciences 11 (2007): 143;Google ScholarNichols, Shaun, “Innateness and Moral Psychology,” in The Innate Mind, 353;Google ScholarSaxe, Rebecca, “Do the Right Thing: Cognitive Science's Search for a Common Morality,” Boston Review (Sept.–Oct. 2005), 33Google Scholar.