Have We Lost Our Minds?

As the publication of the new Law and the Modern Mind attests, after a prolonged absence from the world of legal scholarship, the mind is back! And not a moment a too soon. In a political season in which it is a serious question whether one of our leading presidential candidates suffers from a serious personality disorder, and the news regularly induces the feeling of the whole world gone mad, work drawing out the connections between mental health and illness and political and legal regimes could not be more timely. And that is just what Susannah Blumenthal’s book provides. In her study of the changing understandings of human psychology that influenced virtually every branch of law as it developed in the 18th and 19th centuries, Susannah illuminates the paradoxical dependency of the autonomous rights-bearing individual on complying with certain (albeit shifting) behavioral norms, the violation of which could justify a judgment of mental incapacity and a forfeiture of the rights and status of the autonomous individual. A blend of intellectual history with detailed case studies, Susannah’s impressive new volume is far too multifaceted to address comprehensively here. Instead I want to identify four themes that came to the fore of my mind as I worked my way through this masterful study, namely, (1) the connection between the psyche of the individual and the psyche of the nation, (2) the distinction drawn between the realm of marriage and the realm of the market, (3) the influence on the law of capacity of both sex and religion, (4) romanticism and its place in the law of the modern mind.

The Psyche of the Individual and the State of the Union

The first theme that emerges from Susanna’s book is perhaps the one most relevant to the present moment. Chapter One commences with a description of the Revolutionary Era “physician-statesman” Benjamin Rush, whose Account of the Influence of the Military and Political Events of the American Revolution upon the Human Body, “which documented the novel mental diseases contracted by those who lived through this violent upheaval” (20), was written at the same time as the Constitution. As Susannah shows, the concern that the new political conditions created by the American Revolution would produce mental illness was pervasive. The widespread fear that “too much freedom” would lead to a loss of reason (and, quite simply, drive people insane) was matched in the years immediately after the Revolution by a concern for the mental wellbeing of those who were on the losing side of the War of Independence. Their condition was diagnosed by Rush as a peculiar form of melancholia on which he bestowed the term, “Revolutiona,” to signal that it was “brought on by the loss of power, status, property, and friends, and the accompanying neglect, insults and oppression” inflicted upon them by the victors. (Compare this characterization of losers in a political battle to the characterization of people who suffer a political defeat favored by today’s religious conservatives, who view themselves as victims of discrimination, entitling them to special rights and exemptions from the laws they unsuccessfully opposed). Rush’s view of the people who suffered defeat in the American Revolution as victims of a form of mental illness may have conveyed a dubious kind of compassion for them but it by no means suggested they were entitled to be protected from the change of regime which caused their suffering. Rather, Rush, like many of his contemporaries, viewed mental ailments like melancholia as conditions that undermined people’s capacity to exercise rights and justified subjecting them to the tutelage of guardians appointed by the state.
Rush was equally, if not more, concerned about the mental wellbeing of the victors, whose “passion for liberty” he thought “unhinged the judgment, deposed the moral faculty, and filled the imagination … with airy and impracticable schemes of wealth and grandeur”—a mental condition that he called, evocatively, “Anarchia.” Here, too, the resonance with our contemporary political situation is striking. What better term for the paranoia of the legions of Americans who firmly believe that “they’re coming for our guns,” not to mention the widespread conviction that (religious) conscientious objectors have an absolute right not to follow laws to which they object and the general repudiation of government and public obligations in the name of the most extreme forms of libertarianism? Susannah’s description of the understanding in days of yore that these sorts of ideas are symptoms of a mental pathology that the government is responsible for both causing and correcting, coupled with the further recognition that the mental state of the individual and the condition of society are interdependent, are welcome correctives to the widespread rejection of state responsibility for shaping citizens’ minds characteristic of both conservative and progressive thought today.

Marriage and Markets

One of the most interesting examples of political conditions causing mental maladies is the diagnosis of “the mental casualties of capitalism” that Susannah tells us appeared in the tallies of asylum superintendents (14) as well as in the medical-legal treatises that form the principal subject of the first half of her book. The transition to a modern market economy required a radical reassessment of the moral character and mental capacities of the homo economicus, which was never completely accepted. As J.G.A. Pocock and others have shown, homo economicus was traditionally viewed as a highly feminized, only dubiously male figure, not fit to exercise the rights and obligations of republican citizens. From the point of view of civic republican thought, men who lacked the security of landed property and relied for their living on market speculation, wage labor or commercial activity were unfit for political citizenship for the same reason that women, children, servants and slaves were: being absorbed in the activities of the oikos made them too emotionally unstable and mentally preoccupied with satisfying material needs to be able to develop the faculty of reason and attain the level of intellectual and moral development necessary to be an independent, rational, self-governing individual. Even though Susannah does not mention this earlier body of work, her analysis makes clear that the old civic republican anxieties about the masculinity, rationality, and moral character of the man of commerce persisted even after the market order was embraced.
The resulting ambivalence about homo economicus complicates the received wisdom about the division of domestic and economic spheres and the gendered nature of each. On the one hand it is true that the homo economicus, who formerly was viewed with suspicion by the landed gentry to whom the status of active citizen had been restricted, now was not only newly enfranchised but elevated to the position of male paragon, the prototypical head of household in the 19th century’s ideology of separate spheres. On the other hand, as Susie shows us, 19th century medical and legal psychologists perceived capitalism and “the unrestrained transfer and circulation of property” (110) to have a host of “debasing effects” (195) on those “market-addled” men who followed the ups and downs of the market too closely. The effects catalogued ranged from “monomanias,” in particular, the new diagnostic categories of “money-making” and “speculative” manias, to suicidal depression, all linked to the rise of the market economy.
Susannah follows the standard view, marked out by Reva Siegel and others, according to which contracts made between spouses and other family relations were sharply distinguished from contracts made in the commercial realm. An entire chapter is devoted to demonstrating how “the consideration of love” was thought to be completely at odds with the contractualist logic of the market, a belief that was asserted by lawyers and judges to render inter-spousal contracts unenforceable. That the realm of feeling that was deemed to characterize spousal and other familial relationships was distinguished from the realm of calculating reason and used by courts to override interfamilial agreements is undeniably true. But that this served to distinguish the domestic sphere to which women were relegated from the market sphere reserved for males is far less clear. After all, as Susannah herself shows, the contracts, wills and life insurance policies of “market-addled” men also were frequently set aside and for essentially the same reason that wives’ contracts with their husbands were, namely, that they were the products of emotion rather than reason. The ongoing vitality of the old civic republican “fears of effeminacy and dependency on employers” (100) that Susannah finds to have haunted the persona of the male wage earner, and similar concerns about the emotional instability of the speculator, suggest there may have been less of a distinction between the male realm of the market and the female realm of the family than first meets the eye – or at least that the distinction did not lie in a simple dichotomy between (male) reason and (female) feeling, as is often asserted. In men, too, it was widely recognized, feeling all too often overwhelmed reason.

Sex and Religion

The male-reason/female-feeling dichotomy is implicitly challenged by other aspects of Law and the Modern Mind as well. One of the great strengths of Susannah’s book is the attention she gives to the religious foundations of the theories of human psychology that she traces. Beginning with the influence of Scottish Enlightenment philosophy on American ideas about the human will and reason, she shows that religion animated the liberal humanist tradition as much as the more traditional fire-and-brimstone varieties of religious belief that liberal humanism was sweeping away—or, if not quite away, into the margins of American society. Her analysis makes clear that the fight between liberal humanism and the various religious movements that arose in reaction to liberal humanism, commencing the revanchist movement against the doctrines of liberal humanism that continues in the form of the “culture wars” to this very day, was central to the disputes that took place in the 18th and 19th centuries over the nature of human psychology.
In addition to demonstrating the continuing influence of religious faith on legal and medical ideas about human nature, Susannah also makes clear that concerns about sexual behavior also played a large role in determining whether someone was “in their right mind.” Interracial sexual relations, bigamy, adultery, and “all those deceptive acts to which the the sexes, too frequently, have recourse, with a view to obtain, what they consider, an advantageous marriage connection” (204) were all common grounds for setting aside wills and other private instruments. Susannah takes note of some of the parallels in the treatment of sex and religion, noting, for example, how judges “struggled with evidence of religious or sexual deviance,”(153) both of which were adduced to demonstrate that a testator was irrational and therefore not capable of executing a valid will.

Romance and Reason

More could be made of the connections between religious faith and sexuality that Susannah finds in her material. For it was not just religious and sexual deviance, but religion and sexuality in and of themselves that were coming to be seen—and valued—in ways that constituted a fundamental challenge to the primacy of reason over feeling, passion and desire in the human psyche. Susannah comes close to recognizing the challenge of Romanticism to the rationalist moral psychology inherited from the Enlightenment that was mounting in the 19th century, but then she backs away. “To be sure,” she asserts in her chapter on “The Consideration of Love” where she traces the way the bonds of marital affection were upheld in order to nullify marital contracts, “love was not disabling in the same sense as insanity” (200). But the distinction between love and insanity was anything but sure in the 19th century as Romanticism was making its way from Europe to America, where many were deeply affected by the exaltation of feeling or passion over reason. As Nancy Rosenblum has explained in her short but potent analysis of the encounter between European Romanticism and Anglo-American liberalism, although Romanticism arose initially in opposition to Enlightenment liberalism, it became synthesized with, and integrated into, liberal thought, producing a unique variant of liberalism, distinguished by the dethroning of reason and the value placed on non-rational aspects of human psychological experience. War, sexual and other forms of love, and religious faith were among the newly valorized realms of human experience that resulted from this transformation. This re-valuation of the realms of human behavior animated by the “irrational” faculties of the human psyche sat uneasily with longstanding norms based on subordinating the appetites and the passions to reason. The resulting tension and split that emerged between rationalist and romanticist versions of liberalism might help to explain some of the oscillations that Susannah finds in the case law and the treatise literature, as lawyers, judges and would-be psychological philosophers bounced back and forth between the desire to allow (white male) individuals to make decisions for themselves, no matter how eccentric or idiosyncratic, and the need to protect them from the “undue influence” of their own emotions.
The lack of any explicit discussion of Romanticism is a curious omission, particularly since it was a major influence on the figure who lies at the heart of this book: Oliver Wendell Holmes. As Anne Dailey and George Fletcher have shown, Holmes was deeply affected by Romanticism. It shaped his view of human psychology, which in turn gave rise to his distinctive brand of Pragmatism, presenting a prime example of the fusion of romanticism and liberalism that Nancy Rosenblum describes as “Another Liberalism.” It would be interesting to piece together the Romantic side of Holmes (and the broader universe of American thought of which he was part) with the religious and Scottish Enlightenment underpinnings of legal psychology that Susannah has so brilliantly analyzed.

A Prayer for Healing

But to ask for more from a book that does so much would be unjust. Susannah has brought to light philosophical and theological traditions, and legal applications, that greatly advance our understanding of the mutually constitutive relationship between theories of human psychology and doctrines of law. Beyond that, she reminds us of earlier understandings of the mutually constitutive relationship between individual mental health (and illness) and the psychological state of the polity as a whole. The return to the study of psychology by scholars of law (e.g., Pellegrini, Maria Aristodemou, and Dailey’s forthcoming book) is surely a sign of the current fragility of the national psyche. We can only hope that the law’s rediscovery of the mind will help to prevent us all from completely losing our minds before it is too late.

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