Narratives of Personhood: The Various Shades of the Enlightenment

November 6, 2016   •   By Meir Dan-Cohen


Nihad M. Farooq

Law and the Modern Mind

Susanna L. Blumenthal

HISTORICAL RESEARCH is oriented toward the past, but history writing is also a contemporary performance: it reveals a great deal about the time of its production. Law Professor Susanna L. Blumenthal’s book Law and the Modern Mind and Humanities Professor Nihad M. Farooq’s book Undisciplined are cases in point. They examine the idea of a “self” (or “personhood”) as it evolved between the 19th and mid-20th centuries, a period we can describe as the Enlightenment’s second generation. But these two books are just as much about our third-generational moment, and our era’s ongoing fixation with Enlightenment ideas. As the Enlightenment’s grandchildren, we appear to be fascinated and shaped by our parents’ relationship to it.

In a nutshell, the Enlightenment provides a backdrop to these books in at least three capacities: as forging a conception of science and its role in human life; as formulating and affirming a conception of the autonomous individual or self; and as the insidious intellectual and spiritual engine that drove the atrocities perpetrated by the West — slavery, racism, dehumanization, and colonization. Given the third, it’s understandable why both authors are critical of the Enlightenment in general, and eager to extricate us from its legacy. To this end, both repeatedly point to the historical record in order to delineate the Enlightenment’s various fault lines, conundrums, and blind alleys. Their distrust of Enlightenment ideas certainly has contemporary resonance, but a note of caution is in order: pending the appearance of a more luminous beam, we should be wary of disparaging the light the Enlightenment still casts.


Susanna L. Blumenthal’s book is a thoughtful study of American law’s confrontation with insanity during the 19th century. The “and” of her title stages that confrontation, signaling the reciprocal relationship between “law” and “mind.” Read from left to right, “Law and the Modern Mind” explores how the law helps shape a conception of the human mind — or, in another idiom Blumenthal uses, a conception of “the person” or “the self.” When read in reverse, the title refers to how modern conceptions of the mind (or person, or self) affect the law, specifically the legal meaning and ramifications of insanity.

The legal relevance of insanity has, of course, already been widely explored, but mostly with respect to how “the insanity defense” is deployed in criminal trials. Blumenthal amply demonstrates how insanity figures prominently in civil cases as well: Was a signatory of a contract mentally capable of making one? Was a testator able to execute a valid will? Ought an allegedly insane tortfeasor be held liable for the harm she wrought? Law and the Modern Mind traces variations of the insanity theme as it plays out in each legal field. Though the book is by no means a technical lawyers’ manual, Blumenthal is a sure-footed guide through this doctrinal thicket; just as importantly, she narrates gripping human stories from the era’s legal treatises, as well as those that unravel with greater vividness in court proceedings.

Claims of insanity are important in their own right: they bear on the resolution of legal disputes and, hence, on the fate of particular litigants. But insanity also has a broader significance that transcends the specific cases in which it’s invoked. Insanity forces us to confront tacit assumptions about human nature: what makes human beings responsible subjects, such that insanity would supposedly vitiate their responsibility? As Blumenthal maintains, the challenge law faces in confronting insanity is a grand one indeed: “to determine the nature and limits of human freedom and responsibility.”

Trying to meet this challenge implicates the law in a range of fundamental issues in the adjacent domains of psychology and moral theory. Such engagements are fraught. The legal assumption that people are moral agents answerable for their actions ascribes to them a kind of freedom at odds with the scientific aspirations or pretentions inherent in a psychological outlook. Seen in this context, insanity belongs to a deterministic vocabulary that replaces human agency with a causal structure centered on the notion of disease. But the assumptions underlying that vocabulary have a tendency to expand, creating a slippery slope that threatens to inscribe all human behavior into a deterministic causal order, thus destroying the premise of free human agency on which the entire edifice of legal responsibility would seem to rest. Blumenthal accordingly depicts the courts’ struggle with the issue of insanity as “tortured efforts to stave off the disturbing notion that we are the inevitable accidents of biology and environment.”

The law’s encounter with moral theory isn’t much happier. Here, insanity is discussed within the framework of the Enlightenment conception of the self as rational and free. As depicted by Blumenthal, this conception involves a substantive component: to be rational is at least in part to abide by norms of morality and prudence. And this, maintains Blumenthal, leads to a paradox, which provides the book with one of its leitmotifs:

The logic of judicial reasoning about the mind of the moral agent seemed to point to the problematic conclusion that the only persons who could be said to be of sound mind were those who would never execute an “inhuman,” “unjust,” or “unreasonable” will. As the law was reshaped to reflect the optimistic liberal Enlightenment conceptions of individual ability, it had the paradoxical effect of generating serious doubts about the mental competence of those who deviated from this model of the sovereign self.

An even more serious concern raised by Blumenthal is that ascriptions of insanity tend to dehumanize their subjects. For the sovereign, self-creating individual projected and lauded by the Enlightenment, “responsibility was part and parcel of a process of self-making.” And so it appears that the only way to exempt litigants of responsibility on grounds of insanity is to deny their personhood, thus joining them to other categories of human beings, such as slaves, whose humanity has also been denied.

Given how intractable these issues are, it is hardly surprising that Blumenthal vents her frustration regarding “the embarrassing and irresolvable contests about capacity and responsibility that played out in nineteenth-century courtrooms.”


The Enlightenment’s alleged role in dehumanizing parts of humanity is also a central theme in Nihad Farooq’s study. But whereas Blumenthal is disheartened by the confusion and disorder she finds in the historical record, Farooq celebrates these very qualities. Undisciplined studies human traffic across the Atlantic, including the journeys of prominent travelers such as Charles Darwin, William James, Franz Boas, Katherine Dunham, and others. It explores the crosscultural encounters associated with such voyages, amicable as well as hostile. Highlighting mobility, creolization, and other trends or forces that perpetually destabilize and undermine orderly conceptual structures as well as rigid institutional arrangements, Farooq aims to demonstrate “the simultaneous necessity and failure of disciplinary categories to capture, name and define patterns of continuous change.” The book’s snappy title thus exploits, to good effect, the ambiguity of the word “discipline,” which may refer either to a field of study — in this case, ethnography — or to any imposition of social order — most relevantly for this book, to the kinds of brutal regimes involved in colonialism and slavery. This ambiguity is not just a homonymy. The book repeatedly alludes to the substantive connection between the two meanings of discipline. In order for a field of study to emerge, order must be imposed on a certain experiential domain. When the field studies human beings, such imposition is imbricated with the physical discipline that, through coercive institutional means, shapes the human beings inhabiting that domain. In particular, classifying people into different races in the interest of what purports to be a scientific study is bound up with segregating and subjugating people according to their supposed racial divisions. In this vein, Farooq’s book documents and applauds instances of resistance by those being thus studied and oppressed, especially when resistance assumes both forms — evading stable categories and combating oppressive institutional structures.

In pursuing this agenda, Farooq mines the historical record and literary texts for a wealth of real and fictitious stories in which the protagonists, mostly ethnographers and their subjects, assume and shed what we tend to think of as “identities,” including these very identities of “ethnographer” and “subject.” Her own commentary on these episodes adds a further layer of interest, such as when she suggests intriguing connections between Darwin’s ethnographic encounters and his evolutionary theory, and explores how Katherine Dunham’s unique mixture of ethnography and dance gives rise to her “performative anthropology.”

Farooq is not content, however, with recounting these stories and providing commentary. She sets her sights on a larger goal, attempting to elicit an overarching lesson from the record. However, this effort is perhaps hampered as much as guided by the anti-disciplinary spirit that animates the book. Farooq conceives of ethnography as a political act. Is her historical exploration of ethnography then itself to be read as a political tract? While Farooq’s observations are suggestive and often insightful, an uncertain relationship among a number of different themes leaves the overall picture somewhat blurry. The most radical of these themes is an outright rejection of theorizing about humanity altogether. (This, for example, seems to be the import of a view of personhood as “a shifting, unbounded process whose very articulation in language fixes it in place, thereby contradicting what it does in practice.”) But this counsel of silence (already made by others, of course) does not sit well with Farooq’s own affirmative pronouncements about humanity, personhood, and the self. And those, in turn, seem to go in at least two not entirely congruent directions. One lays emphasis on the insubstantiality and ephemerality of the self: “To undiscipline personhood is to recognize it not as the originary moment of being, but as a constant ontological process of becoming.” The other seeks to replace the individual self with a collective conception: “Personhood […] is […] an imperfect rhetorical placeholder for […] the ‘we.’”

Both of these are supposedly ways of escaping the same culprit: the Enlightenment’s celebration of “self-determination and subjectivity,” which Farooq claims was used “to justify and perpetuate slavery, colonialism, and segregation.” But does her charge really stand?


In weighing this charge, it is crucially important to distinguish the abominations committed by children of the Enlightenment from the ideas that were ignored or perverted in the course of committing these abominations. The Enlightenment is obviously not made of whole cloth, and one can find patches of various shades — some undoubtedly quite dark — in the works of the thinkers loosely covered by this label. Associating the Enlightenment with a “conception of self-determined personhood,” as Farooq does, is accurate enough, but this is not the Enlightenment’s only conception. Though many Enlightenment thinkers did indeed valorize the self-sufficient or self-creating individual, there is also Rousseau, for whom society, animated by a “general will” (rather than by the aggregate of individual actors), is the proper subject of politics and law. Even more importantly, it is not at all clear that the Enlightenment conception of the individual self, as distinguished from the abuses and misapplications of this conception, is at fault. The moral theory propounded by the most prominent proponent of individual autonomy, Immanuel Kant (whom Farooq discusses only briefly), is a prime example. As Farooq reminds us, Kant did indeed share invidious racial stereotypes rampant at his time. But noteworthy and deplorable as this is, in assessing the Enlightenment legacy we ought to pay more attention to the ideas than to the individual protagonists themselves. Seen in this light, the decisive point is not that Kant entertained racial prejudices, but that he provided a lasting intellectual toolkit that can still be effectively used to neutralize the moral ramifications of such prejudices. By ascribing autonomy to all of humanity on metaphysical grounds, and extending dignity, hence equal moral worth, to each and every human being regardless of capabilities and traits, Kant provides a viable vocabulary and system of ideas with which to condemn the very aspects of the West’s historical record that Farooq cites.

But this egalitarian and universalist vision may itself not be to Farooq’s and many others’ liking, and so, needless to say, the conversation continues — as does discussion of whether the line between sanity and insanity is firm enough to set the boundaries of human responsibility. In both conversations, the stakes are high indeed. As Blumenthal’s and Farooq’s books remind us, these issues arise in the shadow of a horrid historical record and under the pall of an encroaching deterministic, scientific worldview. These factors threaten to turn “humanism” if not quite into a dirty word, then at least into one that appears myopic and naïve. However, to their credit, neither author has joined a contemporary trend to write off humanity as a site of value or responsibility. Through their reflective historical explorations, both texts help elucidate, if not quite address, the challenges facing enlightened humanism in our day.


Meir Dan-Cohen holds the Milo Reese Robbins Chair in Legal Ethics at the University of California, Berkeley.