Law and the Modern Mind: Consciousness and Responsibility in American Legal Culture by Susanna L. Blumenthal (review)

Since the end of the eighteenth-century, law and psychiatry have struggled to provide stable definitions of responsibility, freedom, selfhood, and capacity. Blumenthal’s Law and the Modern Mind examines these struggles as they shaped decisions in civil courts in nineteenthcentury America. Following the problem of responsibility across a wide range of issues (inheritance, contracts, marriage, accidents, and aging), Blumenthal demonstrates that judges, jurors, legal theorists, and law makers were unable to establish a consistent standard of judgment for deciding when individual decisions, commitments, or promises were legally binding once personal ability was at issue. Out of these issues, and the commentaries that they spawned, the civil courts produced an increasingly complex system of categories and distinctions that complicated the establishment of any single standard of rights or any single definition of freedom.

Of particular interest to readers of this journal is the intrinsically interdisciplinary nature of Blumenthal’s undertaking. The core of her story is the emergence of “medical jurisprudence” and its transformation of the law. Although scholars have traced the importance of medical jurisprudence in the criminal law—especially regarding the insanity defense—Blumenthal makes clear that the development of psychiatric notions were equally important in the civil realm. Through a deep examination of court transcripts and decisions, she discovers how early psychiatrists (known then as “alienists”) undermined the inherited notions of individual responsibility that underlay the common law and challenged ideas about a shared rationality among the citizenry. In taking seriously the intellectual history of nineteenth-century psychiatric and psychological thought, Blumenthal is able to show that the insertion of new notions of determinism altered and reshaped fundamental legal assumptions. Examining these developments not only as a battle of ideas but also in their actual effect on legal practice, Blumenthal brings together scientific and legal registers to reveal how formal discourses profoundly affected the fates of numerous litigants.

Blumenthal’s close look at medical jurisprudence also suggests that we need to rethink the relationship between law and capitalist society in the nineteenth century. Rather than seeing courts and judges as solidifying the power of property or enabling capitalist development through their decisions about human capability, Blumenthal reads the civil law as a site of intense anxiety. As courts grappled with the new psychiatric theories, they were forced into a wider debate about the uncertainties to self and society that accompanied the spread of market relations. Even when they rejected the more deterministic implications of the new psychiatry—and most often they did—they were asked to adjudicate the different emotional and material demands of litigants who were also confronting a social and legal world without firm foundations. The intersection of economic transformation and scientific understanding became part of the law and not merely an external influence. Thanks to Blumenthal, no simple division between law and society, or clear-cut relationship between law and economy, can be maintained analytically.

Put another way, Law and the Modern Mind reveals the instabilities that still haunt a legal structure that depends on individual responsibility but is unable to say what that responsibility actually is.