Will, Agency, and the Modern Mind

Susanna Blumenthal’s tour de force Law and the Modern Mind takes readers into the murkiness of the life of the mind and the troubled notion of legal responsibility in situations where men (mostly men) were expected to be rational, orderly, and provident (though not necessarily benevolent) patriarchs. While generations of law students like myself made sense of the development of American private law through the raw profit-driven lens of legal realism and critical legal studies, Law and the Modern Mind skillfully weaves the skeins of the moral and the material, the burdens of autonomy, choice and agency that threatened private ordering in the new republic. A young republic founded on freedom, but not too much freedom—and autonomy for the right sorts of people—not slaves, women, indigenous people—rather those who were capable of bearing the burdens of choice and responsibility. Not those fragile genteel souls doomed to hysteria and hypochondria (p.65) but sturdy pragmatic capitalists freed from eccentricity and perversity. Perhaps unsurprisingly, this path of probity and temperance was too much to bear for many patriarchs. The contestants reveal capitalism’s shaky reach into the domestic sphere, when people turned to the courts to realign imbalanced affairs of the heart/wallet, and mind.

I read the book as a Latin Americanist, steeped in early modern Catholic idioms of divine design (and hence the abjuration of such post-Reformation questions of will and agency). Indeed, any judicial deliberation of the kind Susanna puts forth here would put testators and legislators on the expedited track to the Holy Tribunal—which would result in a confiscation of property– so this was a sub-par option. This is not to say that wills went uncontested in the civilian tradition (spoiler alert: they did not). Rather, disgruntled heirs in both civilian and common law jurisdictions framed their quarrels in distinct ways. Nonetheless, the default legal subject appeared as a template in both sides of the Americas. Indeed, some of the characters in Law and the Modern Mind appeared very familiar to me—intemperate, dissolute, stingy, and profligate. Let us call the aggrieved heirs homo malcontenti. If in the spirit of universalism, we find similar judicial efforts at pragmatism across the Americas, let me call attention to the ways in which those involved used different idioms given their religious and moral constraints.

Susanna deftly weaves together the political and material histories of a new republic, the reliance on Scottish Common Sense/pragmatism, and a preference for case-by-case adjudication guided by the actions of the rational/ [reasonable man] default legal subject. In a beautiful phrase, Susanna reminds us that, “judges were far from certain that most testators enjoyed anything like perfect mental health.” (p.164). They knew their subjects suffered from monomania or other afflictions that clouded their judgment. Other judges despaired of finding rationality in their “perverse” subjects (p.109). Alienists cloaked their theories of insanity in scientific shrouds with both dubious and impeccable academic credentials (Benjamin Rush seems to be on the impeccable side of the equation, while Isaac Ray less so).


In early modern Iberoamerica, judges were also grappling with the material and the moral although they deployed a universal morality. Catholics solemnly testated in the name of the Holy Trinity as they made contracts—the language and intonations were virtually the same. Missionaries circulated boilerplate language for indigenous peoples urging them to prepare for a sanctified death in terms of a contract. This neatly coincided with pre-existing indigenous rites ushering people from one world to the next. While many historians have studied the harmonization of will and contract as a result of evangelization, I have always questioned how this drive for harmonization affected medical understandings of the mind/body, soul, and spirit. In my reading of cases that unfolded at the time of imperial consolidation, there is no evidence that Spanish medical practitioners distinguished between the African/indigenous body and the European. In other words, we do not see claims that only genteel European minds were prone to hysteria: “Man in his primitive state is rarely ever insane. The Caucasian is about the only variety that can lay claim to this malady, and even in that variety, it is very little prevalent in despotic governments. It is in those that are free, in which mind can come freely into conflict with mind in which every chord of this curiously toned instrument is constantly strung, that every possible variety of mental derangement is of the most frequent occurrence” (p. 143, my emphasis). Did the Iberian insistence on similarity derive from divine design? What then did this mean for slaves or other legal dependents? Were they judged a priori irrational or weak and incapable of self-governance and freedom like women?

In the New World, colonial saints (very often women of color) whose miraculous works of healing and intercession rendered them interlocutors between heaven and earth. As such, judicial and legislative anxieties produced by the vagaries of the mind were captured in different registers. Beatific bequests similar to those made by Gilded Age millionaires would have been intelligible as securing one’s place in heaven and hastening the time in purgatory. True, in the civilian tradition, there was less room for legal maneuvering to disinherit widows or children with the proverbial dollar bequest. However, we should not presume that homo malcontenti refrained from expressing their disappointment when contesting the disposition of the discretionary share. Indeed, homo malcontenti abound in both sides of the Americas. Perhaps the common denominator is to be found in the universality of disappointment and the anger that ensued from unrequited promises—so beautifully rendered in Law and the Modern Mind. In the face of such deception and pain, judges do well to instruct juries not just to think about the rights of fabulously wealthy testators like Leona Helmsley or Cornelius Vanderbilt. As Susanna shows us, we need to think like Judge Scates when we delve into the darker, quotidian sides of intimacy, who “kept the specter of the madman at bay” amid the tumults of everyday “normal” domestic life.

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