Law and the modern mind: The problem of consciousness in American legal culture, 1800--1930

This dissertation explores a perennial legal problem from a historical angle, analyzing how American lawyers thought about consciousness in the period from 1800 to 1930. Working at the intersection of legal, intellectual, and cultural history, it attends to the ways contemporary religious and scientific writing about mind shaped the development of professional ideals, and informed everyday determinations of liability.; By the turn of the nineteenth century, Calvinist doctrines of innate depravity and divine determinism were giving way to liberal forms of Protestantism affirming the human capacity for self-knowledge, self-determination, and moral discrimination. American lawyers largely adopted this optimistic view of human nature—especially as codified in Scottish Common Sense philosophy—and it infused the legal thought and practice of the period. After the Civil War, however, they confronted deterministic models of human behavior while continuing to work within a legal system predicated on the idea of the autonomous individual. Ironically, these models inspired a romantic response from the bench and bar, leading them to defend all the more strenuously the integrity and freedom of the individual will.; Drawing on a wide range of legal sources—broadly construed to include not only law reports and legal periodicals, but also after-dinner speeches, biographies, and private correspondence—this study proceeds in two parts. The first part takes the office of the American judge as its focus, tracing the emergence of a romantic ideal within the professional discourse, which admitted and even celebrated judicial creativity. A similar progression is illustrated in the legal doctrine of the period, which is at the center of the second part. Using the law of wills as a case study, this part shows that the conception of the human subject assumed in legal analysis—referred to here as “the default legal person”—was a creature of Common Sense, acquiring more romantic attributes as the century progressed. The study concludes by observing the curious persistence of this legal model of the self, even in the minds of Legal Realists, and those who have followed them.