The deviance of the will: Policing the bounds of testamentary freedom in nineteenth-century America

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Deviance is built into the very idea of a last will and testament. From its earliest usages, this legal instrument has provided individuals with a means of departing from conventional rules of inheritance. The freedom of a testator "to do what he wills with his own" was cast in especially expansive terms in the wake of the American Revolution. Nonetheless, antebellum American courtrooms were soon inundated with petitions of disappointed heirs charging that the testator's "unnatural disposition" was the product of an "insane delusion" or other "improper influence." In this Article, Professor Susanna Blumenthal seeks to account for the era's testamentary litigation by offering a doctrinal story that departs from conventional instrumentalist analyses of the phenomenon. Through investigation of the leading will cases, it becomes apparent that they were more than merely material struggles over the testator's property. They were also animated by deeper metaphysical concerns about the source and significance of human perversity. Each case confronted judges with the same fundamental dilemma: was the testator's deviant will best read as evidence of moral depravity, mental unsoundness, or simple eccentricity? Answers to this question were eagerly supplied by a new band of medical men, specializing in the diagnosis and treatment of insanity. As their scientific hypotheses were increasingly deployed in mid-century contests, however, judges came to fear they proved too much, threatening to obscure the distinction between sin and disease, leaving the law with no metaphysical basis for assigning responsibility. In the face of this threat, postbellum judges came to appreciate the importance of distinguishing the eccentric from the insane will as a means of safeguarding the ideal of human autonomy. In their opinions, they performed important cultural work, elaborating a new way of thinking about the timeless problem of evil, anticipating what would be called Pragmatism by the century's end.

Original languageEnglish (US)
Pages (from-to)959-1034
Number of pages76
JournalHarvard Law Review
Issue number4
StatePublished - Feb 2006


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