Law and the Modern Mind–Unanswerable Questions
I am honored to comment on Susanna Blumenthal’s new book. One of the many benefits of reading Law and the Modern Mind is that it offers a window into a range of common law topics from the nineteenth century, including contracts, torts, criminal law, and trusts and estates. The sheer breath of Blumenthal’s research is astounding, especially as she delves into the philosophy and psychology behind the presumption of rationality.
The book looks at how lawyers, judges, and scholars tried to craft exceptions to the presumption. One theme that really stood out for me is how society often struggles to reconcile unusual beliefs with rational behavior. In effect, someone who has an idiosyncratic view (say, leaving all of their wealth to the family cat) can get characterized as irrational as a way of justifying a rejection of the choice that they rationally made. Thus, the inquiry into rationality is sometimes a judicial tool for regulating behavior rather than a genuine inquiry into a person’s mental state. (There are lots of examples of this in the book.)
Even when the search into another’s mind is genuine, though, Blumenthal’s examination shows how difficult that task is. For criminal law in particular, the problem was identified in Ancient Greece. Can a rational person knowingly commit an evil act? Don’t people who do something evil think that they are doing good? Ron Rosebaum’s extraordinary book on Explaining Hitler argues that this claim can be made about Hitler himself, as as times he seemed to think he was helping humanity by killing Jews. The law faces this sort of dilemma from time to time when someone does something particular vicious. Must a person be insane if they, say, shoot up a school? Why would a rational person do that? Or is it just too awful to admit that rational people would do that?
Blumenthal’s fascinating case studies provide lots of food for thought, but it’s not as if the twentieth or twenty-first centuries have solved these problems. John Hinckley’s attempt to kill President Reagan in 1981 led to a verdict of “not guilty by reason of insanity.” (Blumenthal mentions that Charles Guiteau, who assassinated James Garfield in 1881, made a similar unsuccessful claim at his trial.) Perhaps this was the correct assessment of Hinckley’s mental state then (recently he was released to the custody of his parents) or maybe it just struck people as too ridiculous to think that a rational person would shoot a president to impress an actress. (Though that seems less implausible now than it probably did then.)
This is a tour de force on a very challenging subject. I look forward to the rest of the Symposium.