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Hiding from Humanity
Disgust, Shame, and the Law
By Martha C. Nussbaum Princeton University Press
Princeton University Press
All right reserved. ISBN: 0-691-09526-4
Introduction
I. Shame and Disgust: Confusion in Practice and Theory A California judge orders a man convicted of larceny to wear a shirt stating, "I am on felony probation for theft." In Florida, convicted drunk drivers are required to display bumper stickers reading "Convicted D.U.I." Similar stickers have been authorized in other states, including Texas and Iowa. Penalties like these, involving public shaming of the offender, are becoming increasingly common as alternatives to fines and imprisonment.
Jamie Bérubé was born with Down syndrome. As a result of changes enacted under the Individuals with Disabilities Education Act, he has an Individualized Education Plan that provides for him to be "mainstreamed" in a regular public school classroom, albeit with a monitor. The teacher and monitor work to ensure that Jamie need not live as a shamed and stigmatized person, and his condition need no longer be the object of humiliation. Stephen Carr, a drifter lurking in the woods near the Appalachian Trail, saw two lesbian women making love in their campsite. He shot them, killing one and seriously wounding the other. At trial, charged with first-degree murder, he argued for mitigation to manslaughter on the grounds that his disgust attheir lesbian lovemaking had produced a reaction of overwhelming disgust and revulsion that led to the crime. In a 1973 opinion that still defines the law of obscenity, Chief Justice Warren Burger wrote that the obscene must be defined in a manner that includes reference to the disgust and revulsion that the works in question would inspire in "the average person, applying contemporary community standards." To make the connection to disgust even clearer, Justice Burger added a learned footnote about the etymology of the term from Latin caenum, "filth," and cited dictionary definitions defining obscenity in terms of disgust (as will be discussed in chapter 3).
Shame and disgust are prominent in the law, as they are in our daily lives. How do, and how should, they figure in law's formulation and administration? Even in this small sampling of cases, the role of the two emotions seems complicated and hard to pin down. Shaming penalties encourage the stigmatization of offenders, asking us to view them as shameful. At the same time, current trends in our treatment of the disabled, typified by the case of Jamie Bérubé, discourage persistent habits of stigmatization and shaming, in the name of human dignity and individuality. Other previously excluded groups, such as gays and lesbians, have also fought against social stigmatization with some success.
Of course there is no obvious contradiction between these two trends, because it is consistent to hold that the disabled are blameless, and therefore should not be shamed, while criminals should be. It is also consistent to hold that those who commit consensual sexual acts, however controversial, should not be stigmatized, while those who harm others should be. But there may yet be a deeper tension between support for punishments that humiliate and the general concern for human dignity that lies behind the extension of stigma-free status to formerly marginalized groups-and, in general, between the view that law should shame malefactors and the view that law should protect citizens from insults to their dignity.
Disgust, too, functions in complicated ways. It serves, sometimes, as the primary or even sole reason for making some acts illegal. Thus, the disgust of the reader or viewer is one primary aspect of the definition of obscene materials under current obscenity laws. Similar arguments have been used to support the illegality of homosexual relations between consenting adults: they should be illegal, it is alleged, because the "average man" feels disgust when he thinks about them. It is used to justify the criminalization of necrophilia; it has been proposed as a reason for banning human cloning. And disgust has also been taken to be an aggravating factor in acts already illegal on other grounds: the disgust of judge or jury at a murder may put the defendant into a class of especially heinous offenders. On the other hand, disgust also plays a role in mitigating culpability. Although Stephen Carr did not succeed in his attempt to win a reduction on the ground of his disgust, and was convicted of first-degree murder, other offenders have succeeded in winning mitigation with a similar defense.
Again, there appears to be no real inconsistency here, since the disgust of an observer is obviously distinct from the disgust of a perpetrator. It seems consistent to hold that citizens should be shielded by law from what disgusts them, and yet that overwhelming disgust might serve as a mitigating factor in the case of a violent act. Nonetheless, the cases still leave us in some confusion about what the role of disgust really is, and why it should play the role that it does.
If we turn to the theoretical literature, our sense of perplexity only grows, because there is considerable debate about whether shame and disgust ought to play the roles they currently play. Furthermore, both supporters and opponents of these roles use a variety of distinct arguments that are not always mutually consistent. Thus, shaming penalties are frequently defended as valuable expressions of social norms by political theorists whose general position might be described as communitarian, in the sense that it favors a robust role for strong and relatively homogeneous social norms in public policy. Both Dan M. Kahan, the leading advocate of such penalties, and general social critics such as Christopher Lasch and Amitai Etzioni have defended the revival of shaming on the grounds that society has lost its communitarian moorings by losing a shared sense of shame at bad practices. Shame penalties, they argue, would promote a revival of our community's common moral sense. Etzioni memorably suggests that society would improve if young drug dealers, caught in a first offense, were "sent home with their heads shaved and without their pants." In a similar vein, though without even requiring an offense, William F. Buckley, Jr., suggested in 1986 that gay men with AIDS should be tattooed as such on their buttocks. On the other hand, another influential defender of public shaming, John Braithwaite, insists that the goal of such punishments ought to be not stigmatization or humiliation, but the reintegration of offenders into the community. Is Braithwaite taking a different view about the same thing, or is he talking about a very different set of legal practices?
Nor do opponents of shaming penalties agree about what the best rationale for opposition is. Some hold that the penalties are inappropriate because of their assault on human dignity. Others hold instead that the problem with such penalties is that they constitute a form of mob justice, and are for that reason inherently unreliable and uncontrollable.
The theoretical debate about shaming penalties becomes all the more difficult to figure out when we consider the theoretical basis for a wide range of legal practices that currently protect citizens from shame: laws protecting personal privacy, for example, and the new laws promoting a dignified education for disabled children. Typically, these practices are defended on liberal grounds, with appeal to the idea, typical of classical liberalism, that each individual citizen deserves a life with as much dignity and self-respect as can be provided, taking into account the fair claims of others. Are these ideas inconsistent with the use of shame in punishment, as some theorists believe? Or is the tension between shaming and classical-liberal norms merely apparent?
Disgust is equally perplexing in theory. The appeal to disgust in law has its most famous defense in Lord Devlin's The Enforcement of Morals, an influential work of conservative political thought. Lord Devlin argues that the disgust of average members of society (the "man on the Clapham omnibus") gives us a strong reason to make an act illegal, even if it causes no harm to others. This is so, he claims, because society cannot protect itself without making law in response to its members' responses of disgust, and every society has the right so to preserve itself. (I shall analyze his views in detail in chapter 2.) More recently, legal theorist William Miller, while apparently disagreeing with Devlin about some concrete policy matters, supports his general line, arguing that a society's hatred of vice and impropriety necessarily involves disgust, and cannot be sustained without it. But a significant role for disgust has also been supported from a viewpoint that is, while communitarian, nonetheless self-described as "progressive." In his article "The Progressive Appropriation of Disgust," Dan M. Kahan argues that a liberal society, concerned with the eradication of cruelty, needs to build law on the basis of disgust. Kahan's aim, he announces, is "to redeem disgust in the eyes of those who value equality, solidarity, and other progressive values." We should not cede the "powerful rhetorical capital of that sentiment to political reactionaries" just because prominent defenders of disgust have often used it to defend conclusions that appear reactionary from a liberal perspective.
II. Law without the Emotions?
One possible reaction to this confused situation is to say that emotions are irrational anyway, and it is always a mistake to take much account of them in constructing legal rules. There is a popular commonplace to the effect that the law is based on reason and not passion-a view recently imputed to Aristotle in the fictional Harvard Law School classroom in the movie Legally Blond. This commonplace, or something like it, has been endorsed by some liberal legal thinkers, responding to the appeals to emotion that I have just been discussing. Let us call it the "No-Emotion" proposal. If we take such a general line, we seem to cut through the theoretical and practical debates-although it is not terribly clear what the result of so doing will be for many well-entrenched practices.
This shortcut is a mistake, however. First of all, law without appeals to emotion is virtually unthinkable. As chapter 1 will argue, the law ubiquitously takes account of people's emotional states. The state of mind of a criminal is a very important factor in most parts of criminal law. The state of mind of a victim (of rape, blackmail, et cetera) is also often relevant in determining whether an offense occurred, and, if so, of what magnitude. More deeply, it is hard to understand the rationale for many of our legal practices unless we do take emotions into account. Without appeal to a roughly shared conception of what violations are outrageous, what losses give rise to a profound grief, what vulnerable human beings have reason to fear-it is very hard to understand why we devote the attention we do, in law, to certain types of harm and damage. Aristotle once said that if we imagine the Greek gods as depicted in legend-all-powerful, all-seeing creatures who need no food and whose bodies never suffer damage-we will see that law would have no point in their lives. What need would they have, he said, for making contracts, paying back deposits, and so on? We might add, what need would they have for laws against murder, assault, and rape? We humans need law precisely because we are vulnerable to harm and damage in many ways.
But the idea of vulnerability is closely connected to the idea of emotion. Emotions are responses to these areas of vulnerability, responses in which we register the damages we have suffered, might suffer, or luckily have failed to suffer. To see this, let us imagine beings who are really invulnerable to suffering, totally self-sufficient. (The Olympian gods aren't quite like this, insofar as they love their mortal children and have quarrels and jealousies among themselves that give rise to many types of mental and physical suffering.) Such beings would have no reason to fear, because nothing that could happen to them would be really bad. They would have no reasons for anger, because none of the damages other people could do to them would be a truly significant damage, touching on matters of profound importance. They would have no reasons for grief, because, being self-sufficient, they would not love anything outside themselves, at least not with the needy human type of love that gives rise to profound loss and depression. Envy and jealousy would similarly be absent from their lives.
The Greek and Roman Stoic philosophers draw on this idea when they ask us all to become such self-sufficient people, insofar as we can, extirpating the emotions from our lives. They argue plausibly that human beings can achieve something like the imagined invulnerable condition if they simply refuse to value anything outside of that which they control-their own will, their capacity for moral choice. By shifting our attachments and what we consider valuable, we also shift the emotions we are liable to experience. Although few of us would fully share the Stoic project of withdrawing our attachments from the world, considering that project is a good way of measuring the large role that attachments to insecure aspects of our world-other people, the material goods we need, social and political conditions-play in our emotional life. It also helps us, correspondingly, to measure the large role that emotions such as fear, grief, and anger play in mapping the trajectory of human lives, the lives of vulnerable animals in a world of significant events that we do not fully control. If we leave out all the emotional responses that connect us to this world of what the Stoics called "external goods," we leave out a great part of our humanity, and a part that lies at the heart of explaining why we have civil and criminal laws, and what shape they take. (In other words, we can see why and how our vulnerability entails emotion by seeing how the denial of emotion entails a denial of that vulnerability.)
As Rousseau argues in the passage from Emile that I have quoted as an epigraph to this book, our insecurity is inseparable from our sociability, and both from our propensity to emotional attachment; if we think of ourselves as like the self-sufficient gods, we fail to understand the ties that join us to our fellow humans. Nor is that lack of understanding innocent. It engenders a harmful perversion of the social, as people who believe themselves above the vicissitudes of life treat other people in ways that inflict, through hierarchy, miseries that they culpably fail to comprehend. Rousseau asks, "Why are kings without pity for their subjects? It is because they count on never being human beings." Emotions of compassion, grief, fear, and anger are in that sense essential and valuable reminders of our common humanity.
Such emotions typically play two distinct but related roles in the law. On the one hand, these emotions, imagined as those of the public, may figure in the justification for making certain sorts of acts illegal. Thus, any good account of why offenses against person and property are universally subject to legal regulation is likely to invoke the reasonable fear that citizens have of these offenses, the anger with which a reasonable person views them, and/or the sympathy with which they view such violations when they happen to others. (Typical is Mill's account of the foundations of legal constraint, in chapter 5 of Utilitarianism, which traces the "sentiment of justice" to "the impulse of self-defence, and the feeling of sympathy.")
(Continues...)
Excerpted from Hiding from Humanity by Martha C. Nussbaum Excerpted by permission.
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