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:: By Amy M. Braverman

:: Photography by Dan Dry

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Investigations ::

Sign of the times

Shame and disgust are enjoying their biggest legal comeback since colonial times: compare Hester Prynne’s scarlet letter with, say, a California judge in 1990 ordering a man to wear a shirt reading, “I am on felony probation for theft.” Early American sodomy laws, meanwhile, were based on disgust at the thought of such “unnatural sins”—a disgust that forms the real basis, some critics say, for the current campaign to outlaw gay marriage.

image:  Martha Nussbaum

Martha Nussbaum

Martha Nussbaum, the Ernst Freund distinguished service professor of law, philosophy, and religion, finds the trends alarming. Though the California shirt sentence was overturned on appeal, similar cases, such as a 1986 Florida punishment requiring a drunk driver to affix a “Convicted DUI—Restricted License” bumper sticker to his vehicle, have been upheld. And since 1973 a work has been considered legally obscene, in part, if it “appeals to the prurient interest in sex” and the “average person” would find it “patently offensive”—in other words, Nussbaum says, disgusting.

In Hiding from Humanity: Disgust, Shame, and the Law (Princeton University Press, 2004), she asks if the two emotions should play such large legal roles. Unlike anger and fear—valid responses, in her opinion, to real damages or imagined dangers—shame and disgust are, she writes, “unreliable as guides to public practice.”

Hiding from Humanity, Nussbaum says, is “a continuation of” her 700-page Upheavals of Thought: The Intelligence of Emotions (Cambridge University Press, 2001), examining “the role of culture in giving us an emotional vocabulary.” While writing Upheavals of Thought she reviewed University of Michigan law professor William Miller’s The Anatomy of Disgust (Harvard University Press, 1997), piquing her interest in the subject.

She also had ongoing debates with Dan Kahan, a 1993–99 Chicago law professor, now at Yale, about shame as a punishing tool. Various articles morphed into her 2000 Remarque Lectures at New York University and eventually became the current book, which she calls an attempt to defend John Stuart Mill—who argued if there’s no harm to a nonconsenting party then there’s no ground for legal action—better than Mill did himself. “A defense based on liberal norms of mutual respect and reciprocity,” she writes, “carries us much further than do Mill’s Utilitarian arguments.”

Shame and disgust are often linked, says Nussbaum—whom the Boston Globe has called the nation’s “most prominent philosopher of public life”—in a late-December interview in her office at the Law Library. Both emotions are “connected in how society stigmatizes” a person, suggesting “you’re less worthy.” And ultimately, she explains in Hiding from Humanity, disgust and shame are used as “forms of social behavior in which a dominant group subordinates and stigmatizes other groups.”

Take disgust. Conservative British jurist Lord Devlin argued in The Enforcement of Morals (Oxford, 1959), in the context of criminalizing homosexuality, that the average person’s disgust is good reason to make an act illegal because every society has the right to preserve itself. More recently Chicago professor Leon Kass, SB’58, MD’62, who leads President Bush’s Commission on Bioethics, wrote in The Ethics of Human Cloning (1998, with James Q. Wilson, AM’57, PhD’59) that there is “wisdom” in our feelings of “repugnance.”

But disgust, Nussbaum counters, is “at most a rough heuristic for avoiding dangerous substances.” The feeling concerns the “prospect that a problematic substance may be incorporated into the self,” especially corporeal products such as “feces, snot, semen.” Disgust embodies “magical ideas of contamination and impossible aspirations to purity, immorality, and nonanimality, that are just not in line with human life as we know it.” Historically, meanwhile, societies have used disgust to subordinate certain groups, she writes, people who have “come to exemplify the boundary line between the truly human and the basely animal,” including Jews, women, homosexuals, and lower classes.

Because it’s such an unreliable emotion, she says, disgust’s usage in the law is problematic—either to define illegal acts (such as obscenity, detailed above) or to mitigate sentences for criminals. After a jury has convicted someone of murder, for example, a prosecutor often graphically describes the crime’s gore to win a stiff sentence. “When you treat a murderer as a grizzly monster you start raising the issue of insanity,” Nussbaum says, though the jury has already declared him or her competent to stand trial.

Shame, on the other hand, is more complex. It can play a “positive role in development and social life,” she writes, “in connection with valuable ideals and aspirations.” For instance, it’s not necessarily bad for a child to feel ashamed for not doing her homework. But what Nussbaum calls a more primitive form of shame—“closely connected to an infantile demand for omnipotence and the unwillingness to accept neediness—is, like disgust, a way of hiding from our humanity that is both irrational…and unreliable, frequently bound up in narcissism and an unwillingness to recognize the rights and needs of others.”

Communitarian political thinker Amitai Etzioni, she notes, recommends reviving shaming punishments to reinforce shared moral values. Kahan, considered more politically progressive, favors shaming over other alternatives to prison, such as fines and community service, which, he says, have “floundered” as punishing techniques. If used carefully and not abused, Kahan says, shaming as a prison substitute “saves the government money and saves the offender” of a nonviolent violation from potential harm: when given the choice of a shaming punishment or prison, he notes, “no one ever says, ‘I’d rather go to jail.’”

But for Nussbaum the theoretical evidence on using shame is shoddy: some advocates say it’s retribution, others a deterrent. Both those objectives can be accomplished “without stigmatizing,” she says. Even worse, shame “undermines the usual purposes of punishment. It exacerbates [the offenders’] alienation, whatever isolation led them to” commit a crime. Instead, she argues, we should be asking how the person got to that point in the first place.