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In "Mind of a Moral Agent," Susanna Blumenthal elegantly limns the rise and partial fall of the common sense theory of moral responsibility in American law. As Blumenthal convincingly describes it, the problem for early American jurists was nothing less than to solve the paradox of determinism and free will. How can the law declare someone morally culpable unless we are free to choose our own ends?
After the Revolution, according to Blumenthal's account, American doctors and jurists turned to a sunny, Scottish Enlightenment theory of moral responsibility. In place of the tortured moral gymnastics of an older generation of Calvinist-influenced thinkers, men like Benjamin Rush and James Wilson adopted the Scots' idea of an innate moral faculty—a moral sensibility with which to distinguish right from wrong. The dilemma of responsibility seemed to have been solved. Human beings possessed the equipment with which to determine their fate, and if a person chose to pursue a morally wrong path, legal liability was her just desert.
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