Metaphysics, Moral Sense, and the Pragmatism of the Law

Abstract

The authors of these insightful and stimulating commentaries all express skepticism about the role I assign to the Scottish Common Sense philosophy in my historical analysis, though their reasons for doing so are strikingly at odds with each other. Sarah Seo and John Witt concede the importance of the Common Sense philosophy at a theoretical level, even as they call attention to certain “competitor theories” of human nature, noting that these darker views of the self may have proved more influential in the framing of the American constitution. However, they go on to contend that all of this philosophizing about the human mind was actually of little consequence in the everyday adjudication of civil and criminal liability, as judges found more practical means of resolving “the otherwise intractable questions of moral responsibility” left unanswered by the Scottish philosophy. John Mikhail, by contrast, appears to be far more sanguine about the tractability of these questions, from a philosophical standpoint, going so far as to suggest that they were more or less resolved by British moralists before the Scottish Common Sense school even came into being. What truly set the Common Sense philosophers apart from their predecessors, and ought to determine their place in this history of ideas, Mikhail concludes, was the manner in which they contributed to the scientific process of tracing out the inner structure and innate capacities of “the moral mind”—a topic that is currently of intense interest in the cognitive and brain sciences.