Vol. 14 No. 9 (September 2004), pp.708-710
HIDING FROM HUMANITY: DISGUST, SHAME AND THE LAW, by Martha C. Nussbaum. Princeton, N.J.: Princeton University Press, 2004. 432pp. Cloth. $29.95 / £18.95. ISBN 0-691-09526-4.
Reviewed by Stefanie A. Lindquist, Department of Political Science, Vanderbilt University. Email: stefanie.a.lindquist@Vanderbilt.Edu
Critics of modern American society have often focused their attention on the demise of shame as a norm-reinforcing mechanism that promotes constructive behavior. According to these critics, Americans have lost their capacity for shame in relation to such things as out-of-wedlock births, marital infidelity, sexual deviance and unethical behavior. Among the most vocal social critic in this regard was the late Christopher Lasch, who wrote in A CULTURE OF NARCISSISM (1979) that, because we have “diffused shame over shameful failures,” we live in an age of diminished expectations regarding norms of self-reliance, self-discipline, and self-respect (Massaro 1997, 651). Our educators shower our children with praise and undeserved approval, thus robbing them of traditional incentives to excel that are linked to the shame of failure. Our therapists seek “to understand” and ultimately excuse deviant behavior rather than condemn it. Our media outlets reinforce cultural pathologies of self absorption and personal indulgence. The aggregated effect, according to these critics, is a society where traditional norms fail to constrain citizens’ socially destructive impulses.
One solution offered to cure this cultural malaise has been the regeneration or reintroduction of societal shaming as a means to enforce legal and cultural norms. In the criminal law, shame has been resurrected as a method of punishment, especially for sexually related crimes or drunk-driving convictions. Those convicted of such crimes may be “branded” in some way (through required bumper stickers, lists on internet sites, and the like) so as to induce shame on the part of the defendant. The objective is to deter the offender’s subsequent behavior through shame. But shame is not the only emotion involved in this equation. In addition to triggering the emotion of shame in the offender, these forms of punishment also trigger disgust on the part of fellow citizens. Indeed, the flip side of shame is disgust. Disgust helps generate shame; the two are inextricably entwined. Like shame, the emotion of disgust may enter the criminal law in interesting ways, even beyond inducing shame in an offender. Where a criminal defendant acts out of disgust or extreme aversion to an act by his victim or in response to his victim’s particular status, for example, sympathetic judges and juries may respond by mitigating his sentence or even exculpating his behavior. Thus a defendant who has overreacted with violence to an unwanted advance by a homosexual victim may find his crime forgiven or his sentence reduced by decision makers who share the defendant’s peculiar sensitivities. [*709]
In her new book, Martha Nussbaum asks whether shame and disgust are appropriate foundations for crime and punishment. Is it appropriate to criminalize behavior simply because it “disgusts” us in some way? Is it appropriate to exculpate those who commit a crime because the victim’s behavior was “disgusting” to the perpetrator? Is it appropriate to utilize shaming devices to penalize those who break the law? Nussbaum responds to proponents of shaming penalties in the criminal law by drawing upon the liberalism of John Stuart Mill to highlight the philosophical problems associated with allowing shame and disgust to shape the criminal law. Moreover, she reviews with meticulous detail the prevailing definitions of shame and disgust, distinguishing these emotions from guilt, anger, humiliation and embarrassment. In so doing, she highlights the origins and uniqueness of shame, an emotion that typically involves a reflection upon the whole person rather than a particular act, and of disgust, an emotion that often emerges in response to “our animal bodies.” Both emotions tend to take as their starting point some notion of what is “normal” among human beings; not being “normal” engenders shame and disgust. She also draws upon sociology, psychology, and anthropology in her wide-ranging critique of shame and disgust as valuable emotional responses under the law.
Nussbaum recognizes that both disgust and shame are culturally and socially useful emotions in some circumstances. Disgust is a common cultural reaction to defilement—often in relation to our own bodily functions involving certain smells and emissions (Miller 1997). These forms of disgust may be functional, in that they may keep humans from defiling themselves or ingesting noxious substances and thereby spreading disease. Yet disgust may also be socially constructed and thus what triggers disgust may vary from culture to culture (see Kahan 1998). As a result, disgust may arise in some cultures toward those individuals with certain immutable “defects,” such as ugliness, homosexuality, deformity, or mental disability (i.e., the “abnormal”). Because disgust may often be linked to such “group-based thinking” through the emotion’s social construction, Nussbaum finds it particularly unreliable as a guide for the legal regulation of human action. Indeed, such a response violates one of liberalism’s basic principles: the equal worth of persons. Reliance on disgust—while a worthy emotion for anthropological reasons in some circumstances—is simply too prone toward stigmatization of unpopular groups to justify its introduction into the criminal law. And where disgust may certainly arise over certain harmful acts that should be condemned as criminal, including father-daughter incest, eating human flesh, or having sex with animals, Mill’s principle against causing harm to others already exists to justify the legal prohibition of such acts. Disgust as a philosophical or moral basis for such laws is simply unnecessary—liberalism fills the bill. As Nussbaum quips: “We do not need to appeal to disgust to tell us that murder and cruelty are bad” (p.85).
Shame also comes in certain “admirable forms” in that certain antisocial or dangerous behaviors, such a drunk driving or child molestation, may be deterred by the anticipation of social disgrace. At the same time, shame [*710] has some negative externalities associated with its utility as punishment. First, unlike a prison sentence or fine, the use of shaming devices to penalize criminal conduct ultimately relies on forces outside the justice system to “administer” the punishment. This means that shaming penalties may take forms unanticipated at the time of sentencing; these unanticipated responses may result in punishment that is disproportionate to the crime. Second, unlike guilt, which focuses on the criminal act itself, shame is an emotion that often reflects on an enduring defect or imperfection. Nussbaum links the origins of shame to an understanding, emerging in childhood, that we are dependent on others rather than omnipotent. The emotion targets the whole person as inadequate or deviant. Since a person who is ashamed is often ashamed of himself rather than (more precisely) ashamed of his act, shaming may undermine efforts to reincorporate the wrongdoer into society as a productive citizen because of its enduring impact on the defendant’s self esteem. As Nussbaum argues, “Guilt punishments make the statement, ‘You committed a bad act.’ Shame punishments make the statement, ‘You are a defective type of person’” (p.230). Linked to this notion is the idea that shame undermines the dignity of persons in violation of liberalism’s fundamental principles, especially because shame may be used most often to stigmatize certain marginalized groups in society.
In short, the problem with relying on the emotions of shame and disgust to structure the criminal law is that these emotions are too easily manipulated and are so potentially discriminatory that their use may result in the sinister stigmatization of unpopular groups. To use a hackneyed legal metaphor, if we rely on shame and disgust for the criminalization of behavior, we may soon find ourselves cascading down a slippery slope toward the denigration of those already marginalized in our society because they deviate from the norm. The potential for such malignant consequences, according to Nussbaum, justifies eliminating shame and disgust from our legal tool kit altogether.
A short book review cannot do justice to Nussbaum’s exceptionally thorough evaluation of shame, disgust and the law. Although her analysis is most persuasive when she focuses on philosophical and legal matters, rather than issues more distant from her expertise (such as child psychology), she nevertheless has produced a remarkably wide ranging and nuanced treatise on the interplay between emotions and law.
Kahan, Dan M. 1998. “The Anatomy of Disgust in Criminal Law.” 96 MICHIGAN LAW REVIEW 1621-58.
Lasch, Christopher. 1979. THE CULTURE OF NARCISSISM. New York: Warner Books.
Massaro, Toni M. 1997. “The Meanings of Shame Implications for Legal Reform.” 3 PSYCHOLOGY, PUBLIC POLICY, AND LAW 645-703.
Miller, William Ian. 1997. THE ANATOMY OF DISGUST. Cambridge, MA: Harvard University Press.
Copyright 2004 by the author, Stefanie A. Lindquist.
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