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


John Mikhail


Georgetown University Law Center


Law and History Review, Vol. 26, No. 1, Spring 2008
Georgetown Public Law Research Paper No. 1076702

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.

Number of Pages in PDF File: 9

Keywords: Common Sense, Scottish Enlightenment, moral agent, legal responsibility, common law, medical jurisprudence, insanity, moral faculty, Thomas Reid, Benjamin Rush, James Wilson, David Hoffman, Francis Wayland, Noah Porter, Isaac Ray, Jeremy Bentham, John Austin, John Locke, Adam Ferguson

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Date posted: December 19, 2007 ; Last revised: April 25, 2008

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Mikhail, John, Scottish Common Sense and Nineteenth-Century American Law: A Critical Appraisal. Law and History Review, Vol. 26, No. 1, Spring 2008; Georgetown Public Law Research Paper No. 1076702. Available at SSRN: http://ssrn.com/abstract=1076702

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John Mikhail (Contact Author)
Georgetown University Law Center ( email )
600 New Jersey Avenue, NW
Washington, DC 20001
United States
202-662-9392 (Phone)
202-662-9409 (Fax)
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