Susanna Blumenthal’s impressive Law and the Modern Mind: Consciousness and Responsibility in American Legal Culture, offers an important reconceptualization of the legal history of responsibility as it played out in nineteenth century courtrooms and jurisprudence. Her extensively researched book examines the ways in which philosophers, medical experts, and judges took up a set of foundational problems in American legal and political theory: What is the self? What does self-governance in a roiling new capitalist democracy look like, and what does its failure entail? What is the relation between freedom and unfreedom for different categories of persons in varying contexts? How should we assess the entanglement of collective morality, a desire for order, interrelation and responsibility, and material embodiment in order to judge the acts of individuals? While other scholars have explored this terrain through the lens of criminal jurisprudence, Blumenthal turns to the civil side of the docket, and the intellectual artifacts and arguments she unearths make this book a singular and significant contribution to the literature on legal responsibility.
A talented historian, Blumenthal ranges across a fresh archive of philosophical tracts, personal correspondence, legal treatises and articles, trial transcripts, and the popular press, producing a synthetic history of the debates raging around the problem of civil legal responsibility across the nineteenth century. In doing so, she implicitly refines and revises the Foucauldian story of the rise of biopolitics in constituting modern subjectivity, offering a genealogy of the responsible self – in her terms, the “default legal subject” – and its fraying from eighteenth-century Common Sense philosophy to the twentieth-century edges of psychoanalysis. While Foucault counterpoises the liberal self-governing subject enshrined in rights theory with a biopolitical subject constituted through scientific discourse and the capillary effects of disciplinary technologies, Blumenthal suggests that legal and medical commentators saw the very conditions of freedom (both market and political) as themselves generating the unfreedoms of madness. Too much freedom, such commentators worried, unmoored particularly those white men who were ideologically enjoined to pursue individual wealth and happiness. Increasingly, experts believed, such men suffered from a bewildering variety of psychological ills in need of categorization, explanation, and treatment. Under those fraught ideological, economic, and cultural conditions it was the task of judges to negotiate the seemingly indeterminate and endlessly moving line between madness and responsibility, determinism and free will.
Blumenthal’s perspectival shift from criminal to civil law, an in particular her mining of illustrative trials, enables us to see more clearly the scope, stakes, and uncertainties at the heart of these debates. In examining fascinating legal contests over wills, contracts, familial duties, and accidents, she shifts our attention away from classic one-off case histories of madness and violence and toward the rich social landscape of modernizing America captured in the annals of private law. Drawing on trial and appellate records, Blumenthal gains a fine-grained perspective on the ways judges and juries struggled to reconcile conflicting conceptions of the self as they were presented for adjudication in cases arising out of perplexing, often intimate situations. Those cases inflamed public opinion for and against medico-legal experts, and informed treatise writers who struggled and failed to find a steady gauge by which one could measure the presence and intensity of insanity and its relation to civil liability.
In emphasizing trials as a primary source in her legal history of responsibility, Blumenthal helpfully moves beyond the domain of intellectual history and into the world of practice and representation. As a historiographic matter, then, it may be worth exploring briefly the status of trials as evidentiary artifacts and how she takes them up. Because they tend to open up private worlds to public view and create written records (via transcripts and appellate opinions), trials are generally accessible sources for historians, who can sometimes unreflectively imagine them to be transparent windows into the social life of a given time and place. Blumenthal, on the other hand, approaches these civil trials with a sophisticated eye, conceiving them as a kind of “performance space where so much was scripted for strategic purposes” (101), full of lawyerly hyperbole. But what does it mean to label a trial a “performance?” How do trials, as she puts it, do “cultural work”? And to what extent can historians capture their meanings post-hoc?
Fundamentally, trials are live events that reconstruct the past through carefully crafted argument and the constrained but vivid presentation of case-specific evidence before an audience. Advocates play roles, tell stories, and appeal to both reason and emotion in order to persuade audiences that their rendering of the past is more accurate, their arguments more compelling, and their desired outcomes more just. Shifting allegiances produced by the adversarial format, compelling evidence, authoritative rulings from the bench, the rhetorical force of argument – all produce an immediate and visceral affective context for judgment. For historians, this aspect of trials is nearly impossible to reconstruct without evidence of audience response, complicating the project of making meaning out of particular verdicts.
At the same time, courtroom performances are structured by already-given rules and role expectations, suffused with powerful (if contested) legal concepts (such as “insanity”) and their discursive frameworks reiterated in trials across time and space, and structured (at least in the Anglo-American trial system) by a rigid adversarial format. Hence trials as performances also exhibit a kind of performative iterability (in the linguist J.L. Austin’s terms, “performativity”) in which “law” and the legal subjects who come before it are fabricated and staged through (as Judith Butler puts it in Gender Trouble) “a reenactment and reexperiencing of a set of meanings already socially established” in prior trials. Reiteration gives the trial, and the doctrines at issue in it, recognizable form. As such, individual trials are not just performance spaces; they also performatively constitute the law as “law,” shaped by ritual and procedure, and referential (if never fully binding) beyond the confines of a particular trial.
This tension between fleeting singularity and stylized repetition makes trials a thick but complicated form of evidence from which to draw conclusions about the social world. Carefully, instead Blumenthal conceives of trials instead as “a rich repository of information about how the legal system was used to manage the epistemological and ontological problems these cases regularly presented” (101). In my own jargon, she traces the ways these cases performatively constituted – or ultimately failed to constitute –subjects who were generally legible as legally “insane.” Ultimately, Blumenthal argues, “in the crucible of the courtroom, Americans attempted to forge a common sense of the subject of responsibility … Yet consensus proved maddeningly elusive, for the situations presented were so varied, the cause and meanings of capacity so context-specific, that these cases could not be systematized into a ‘law of insanity’ in any meaningful sense” (274-5). No consistent conceptualization of irresponsibility emerged across the century’s civil docket.
For those interested in the normative dimensions of legal doctrine, Blumenthal’s historical narrative may seem to end in tragedy, or perhaps farce. After the work of a century’s great intellectuals deeply invested in explorations of the self, from Benjamin Rush to Oliver Wendell Holmes, Jr., these cases pointed to the ultimate irresolvability of a fundamental legal question: who deserves to be held liable for damage done? And with that irresolution the legal system risked allowing profound injustice to proliferate for civil litigants who experienced all sorts of losses – material, emotional, and psychological. Blumenthal’s engagements, however, lie somewhat to the side of these normative questions. If her synthetic history largely eschews presenting vivid (and entertaining) cultural details concerning religion, delusion, and madness found in, for example, Charles Rosenberg’s case study, The Trial of the Assassin Guiteau, it nevertheless explores the vast and varied landscape of nineteenth-century civil trials with great insight, giving us a model study of the contradictions and complexities of adjudicating the dense and murky netherworld of the self.
Blumenthal offers a relatively sanguine set of conclusions about the worth of the nineteenth century’s trial as a forum for adjudicating questions of responsibility. In negotiating the unnerving possibility that law can never fully capture the liberal self on which its conceptions of right and justice depend, Blumenthal argues, these judges nevertheless gave their audiences “a practical way of living with the uncertainty and terrors of everyday existence, particularly the threats that lurked within the mind” (290). By and large, her book chronicles cases in which judges maintained a pragmatic distance from medical experts’ contradictory conclusions about what constitutes insanity. Out of those trials, judges developed a distinctive logic of responsibility that managed, case by case, to thread the needle between law’s deep investment in the default legal subject and proliferating evidence of biologically and environmentally determined causes for mental illness. Blumenthal’s conclusions thus suggest, for me, a different kind of tragic narrative. We now live in a world largely emptied of trials, both civil and criminal. Plea bargaining and mediation have erased the docket. Through what legitimate public vehicles, then, can we possibly work through these still-vexing questions of responsibility? In an age of material extravagance and corresponding environmental deprivation, neuroimaging and drug therapies, how can we determine whom we should hold liable for damage done? Without the cultural work of trials, whatever their flaws and eccentricities, we have lost a critical apparatus for generating public judgment. And with that loss, we may have let go of a key site of law’s legitimation as an instrument of democratic governance.