Hiding from Humanity

Disgust, Shame, and the Law

Martha C. Nussbaum

• Publisher: Princeton University Press
• Year: 2009
• ISBN:
  9781400825943
• Topic: Derecho
• Subtopic: Ética y responsabilidad profesional en el derecho

Should laws about sex and pornography be based on social conventions about what is disgusting? Should felons be required to display bumper stickers or wear T-shirts that announce their crimes? This powerful and elegantly written book, by one of America's most influential philosophers, presents a critique of the role that shame and disgust play in our individual and social lives and, in particular, in the law.
Martha Nussbaum argues that we should be wary of these emotions because they are associated in troubling ways with a desire to hide from our humanity, embodying an unrealistic and sometimes pathological wish to be invulnerable. Nussbaum argues that the thought-content of disgust embodies "magical ideas of contamination, and impossible aspirations to purity that are just not in line with human life as we know it." She argues that disgust should never be the basis for criminalizing an act, or play either the aggravating or the mitigating role in criminal law it currently does. She writes that we should be similarly suspicious of what she calls "primitive shame, " a shame "at the very fact of human imperfection, " and she is harshly critical of the role that such shame plays in certain punishments.
Drawing on an extraordinarily rich variety of philosophical, psychological, and historical references--from Aristotle and Freud to Nazi ideas about purity--and on legal examples as diverse as the trials of Oscar Wilde and the Martha Stewart insider trading case, this is a major work of legal and moral philosophy.

Chapter 1

Emotions and Law

[N]o defendant may set up his own standard of conduct and justify or excuse himself because in fact his passions were aroused, unless further the jury believe that the facts and circumstances were sufficient to arouse the passions of the ordinarily reasonable man.

—People v. Logan, 164 P. 1121, 1122 (Cal. 1917)

Nor, on the other hand, must the provocation, in every case, be held sufficient or reasonable, because such a state of excitement has followed from it; for then, by habitual and long continued indulgence of evil passions, a bad man might acquire a claim to mitigation which would not be available to better men, and on account of that very wickedness of heart which, in itself, constitutes an aggravation both in morals and in law.

—Maher v. People, 10 Mich. 212, 81 Am. Dec. 781 (1862)

I. Appeals to Emotion

Frank Small had a quarrel with C. R. Jacoby in Keyser’s Saloon. Jacoby walked out of the saloon and down the street with his wife. As he was walking away, Small came up to him, put a pistol to his head, and shot him. Jacoby died two days later. In an attempt to mitigate the grade of the homicide from murder to manslaughter, Small argued that he had been impelled to kill by an intense surge of anger that persisted from the time of the quarrel until the fatal attack. On appeal from his conviction for first-degree murder, he argued that the trial court had erred in failing to instruct the jury that some people calm down more rapidly than others after a quarrel. The Pennsylvania Supreme Court rejected the argument: “Suppose then we admit testimony that the defendant is quick-tempered, violent and revengeful; what then? Are these an excuse for, or do they even mitigate crime? Certainly not, for they result from a want of self-discipline; a neglect of self-culture that is inexcusable.”¹

Judy Norman had been physically and mentally abused by her husband for years. He forced her to engage in prostitution and he frequently threatened to kill her. One evening her husband beat her with unusual severity, called her a “dog,” and made her lie on the floor while he lay on the bed. Norman took the baby to her mother’s house and came back with a pistol. She shot her husband, fatally, while he slept. At trial, a defense expert testified that Norman killed because she feared that if she did not she would “be doomed … to a life of the worst kind of torture and abuse” and that “escape was totally impossible.” The North Carolina Supreme Court affirmed the trial court’s refusal to instruct the jury on self-defense. The majority opinion held that the evidence “would not support a finding that the defendant killed her husband due to a reasonable fear of imminent death or great bodily harm”; the dissent maintained that the husband’s “barbaric conduct reduced the quality of the defendant’s life to such an abysmal state that … the jury might well have found that she was justified in acting … for the preservation of her tragic life.”²

In 1976, the U.S. Supreme Court declared the North Carolina death penalty statute unconstitutional because it did not allow defendants an opportunity to present their life history at the penalty phase and thus to appeal to the compassion of the jury. The possibility of compassion, the Court wrote, is an essential part of the process of appropriate criminal sentencing:

A process that accords no significance to relevant facets of the character and record of the individual offender or the circumstances of the particular offense excludes from consideration in fixing the ultimate punishment of death the possibility of compassionate or mitigating factors stemming from the diverse frailties of humankind. It treats all persons convicted of a designated offense not as uniquely individual human beings, but as members of a faceless, undifferentiated mass to be subjected to the blind infliction of the penalty of death.³

In a 1986 California case, citing this precedent, the Court discussed a California jury instruction that cautions jurors that they “must not be swayed by mere sentiment, conjecture, sympathy, passion, prejudice, public opinion or public feeling.”⁴ They agree that the instruction is constitutional only if it is interpreted to ask jurors to disregard “untethered” sympathy; that is, “the sort of sympathy that was not rooted in the aggravating and mitigating evidence introduced during the penalty phase.”⁵ It would clearly be unconstitutional were it interpreted so as to ask jurors to disregard all compassionate emotion.⁶

Appeals to emotion are prominent in the law. Moreover, there is general agreement that emotions can be evaluated not just as stronger or weaker, but also as more and less reasonable, more and less in accordance with the hypothetical legal norm of the “reasonable man.” As my examples make clear, this norm is contested. Frank Small tried to win for his own unusually irascible and violent character the recognition that courts have traditionally accorded only to the “ordinarily reasonable” citizen. Judy Norman’s fear for her life is depicted as perfectly reasonable by her attorneys and the dissenting judge, but attacked as unreasonable by the prosecution and the majority. The Supreme Court grants that a certain sort of compassion is reasonable, but the opinions present evidence that prosecutors frequently mislead juries on this point, suggesting that the only reasonable stance is one utterly without emotion.

Interestingly enough, all parties appear to be agreed that emotions can be evaluated for reasonableness and appropriateness, and that, to that extent, they are parts of a character that one might deliberately cultivate. The judge hearing Small’s appeal writes that his conduct shows “a want of self-culture that is inexcusable.” The Norman defense lays heavy emphasis on the features of her life that made it utterly reasonable for her to fear both inescapable degradation and an early death; the other side argues that these factors do not show that she acted on the basis of “reasonable fear of imminent death or great bodily harm.” Operating in a tradition in which self-defense is defined with reference to the notion of reasonable fear, the parties have no interest in even exploring the possibility that fear is nothing but an impulse that cannot plausibly be assessed as reasonable or unreasonable. The Supreme Court seems to assume that compassion has a close relation to thought: it is based on evidence, and it can be “tethered” to limit its purview to the evidence presented at the penalty phase of a criminal trial.

Because my overall project in this book is to conduct a detailed and highly critical evaluation of two specific types of emotion, it is important, first, to gain an understanding of the prevailing attitude to emotions in general in the Anglo-American legal tradition, and of the conception of emotions on which this attitude is implicitly based. This tradition, as we shall see, connects emotions closely with thought about important benefits and harms, and thus, as well, with prevailing social norms concerning what benefits and harms are rightly thought important. Because I believe that this conception of emotion is basically correct, I shall offer some arguments in its favor, and show the advantages it offers for a picture of social emotion and moral education.

After providing an account of the merits of the traditional conception, I shall look more closely at three areas of law in which the conception has played an interesting role: the law of “reasonable provocation,” the law of self-defense, and the role of appeals to compassion in criminal sentencing. These are intended as examples, only, to show how the appraisal of emotion typically functions. There are many other areas of both criminal and civil law that could have been chosen for a similar analysis.⁷

Because emotions as I shall characterize them make reference to social norms, a question naturally arises at this point: to what extent should a society committed to a liberal respect for pluralism be in the business of evaluating emotions, and therefore the norms they embody? I shall conclude the chapter by briefly sketching the conceptions of political liberalism and the justification of law that I favor, and shall then argue that the evaluation of emotion plays a limited but still significant role inside a political liberalism so understood.

What are we talking about when we talk about emotions? Although there are many differences of opinion about how to analyze emotions, it is significant that there is a large measure of agreement about what the category includes. A long Western tradition, both philosophical and popular, has agreed that certain human experiences that people commonly call “emotions” or (especially earlier) “passions” can usefully be classified together, since they share many common features.⁸ The major emotions, both in this philosophical tradition and in related popular and literary thought, typically include joy, grief, fear, anger, hatred, pity or compassion, envy, jealousy, hope, guilt, gratitude, shame, disgust, and love.⁹ Non-Western traditions appear to classify experience in a roughly similar way.¹⁰ More recently, research on emotion in evolutionary biology and in cognitive psychology has come up with a very similar list.

The point of this grouping is to distinguish this group of experiences from bodily appetites such as hunger and thirst, and also from objectless moods, such as irritation and certain types of depression. The emotions on the standard lists seem to have a lot in common with one another, and to be distinct in structure, in ways that I will shortly describe, from appetites and moods. Of course there are also many distinctions among members of the category of emotions; the classification of certain cases remains a matter of dispute. The consensus about central members of the family across differences of time and culture is, however, striking.¹¹

I have said that emotions are “human experiences,” and of course they are that; but most contemporary researchers, and many in the ancient world, also hold that some nonhuman animals have emotions, at least of some types.¹² Obviously the differences in cognitive ability among species create corresponding differences in their emotional lives, and some emotion-types prove easier to ascribe to nonhuman animals than do others. Many animals probably have fear; a smaller number probably have anger and grief; a still smaller number appear to have compassion, since that emotion usually requires perspectival thinking, that is, the ability to assume, mentally, the position of another person or creature.¹³ These questions should not be neglected in any theoretical account of emotions, difficult though it is to decide how to ascribe emotions to creatures who do not use language. There is compelling evidence that the ascription of a wide range of emotions is essential to explaining animal behavior. I shall leave that issue to one side for now, however, focusing on the human emotions that are the standard material of law.

II. Emotion and Belief, Emotion and Value

When we think about our emotions, they frequently seem to us like forces that take over, so to speak, from outside. Frequently they seem to have little connection with our thoughts, evaluations, and plans. If, then, we are going to defend the traditional picture of emotions, which has its roots in ancient Greek conceptions of emotion and of their contribution to a good character, we need to understand why the idea of emotions as unthinking forces is ultimately inadequate, despite its first-blush intuitive plausibility.

Let us, then, think about Judy Norman’s fear. Very likely it was accompanied by at least some powerful feelings and bodily changes. What, nonetheless, would make us think that this is not all her emotion contained?

First of all, her fear has an object. It is focused on something: namely, the prospect of being killed by her husband (and beaten and degraded, even if she is not killed). It is a fear of those terrible possibilities. If we remove from her feelings that character of being focused on bad events in the future, they become something else—not fear, but a mere pain or shaking. Indeed, it is interesting that we do not really know, or perhaps greatly care, exactly what Judy Norman’s bodily feelings were. (Did she tremble? Did she have a pain in her stomach? Was her heart racing? Perhaps all of these, at different times?) What we care about, what makes us convinced that she felt fear, is the way we imagine her focusing on those future possibilities.

Furthermore, the object of her emotion is what philosophers generally call an intentional object: that is, its role in the emotion depends on the way in which it is seen and interpreted by the person whose emotion it is. Let us explore this point using a less contested case, and then return to Judy Norman. A mother is told that her only child, whom she loves very much, has just died. She reacts with intense grief. The point is that her grief is based on the way she sees her situation, namely, as that of a woman who has just lost her beloved child. Her view of the situation might be factually correct or it might be incorrect: for example, perhaps the child is alive and well, and the person who told her the news is mistaken or lying. In that case, her grief is based on a false belief, but it is still grief, because that is how she sees her situation.

A separate issue is the issue of reasonableness. Suppose she believes that her child is dead because the news is brought to her by a person whom she trusts and whom she believes to be in a very good position to know how things are with her child. In that case, her belief that the child is dead might still be false, but it seems to be reasonable. If, on the other hand, she believes the news because she hears a casual rumor from a very untrustworthy person, her belief is unreasonable, whether it happens to be true or not. In that way, the issue of reasonableness is independent from the issue of truth: reasonableness concerns issues of evidence and reliability, in a way that truth does not.

Now let us return to Judy Norman. Her fear was based on the way she saw her situation—as one in which her life and safety were threatened by her husband. The two sides in the case disagreed about whether her belief that her husband was likely to cause her serious bodily harm was reasonable. They did not raise the issue of truth, presumably because her belief was about the future, and to that extent its truth could not be ascertained. What they were asking was whether it was reasonable of her, based on her past experience and the evidence available to her, to believe her life or bodily safety threatened.

This discussion already brings out a third feature of emotions that makes them unlike the unintelligent feelings and bodily forces with which we began. That is, they involve beliefs, and sometimes very complex beliefs, about their object. Aristotle insists on this point in the Rhetoric, where he gives advice to young public speakers about how to create emotions in their audience.¹⁴ They create emotions, or take them away, he argues, by making the audience believe certain things about their situation. Suppose I want to make my audience feel fear.¹⁵ Then, he says, I must convince them that serious bad things are in the offing, threatening them or their loved ones, and that it is not entirely clear that they will be able to ward these bad things off. If I am to make them angry with someone—let’s say, with the Persians—I must convince them that the Persians have damaged some aspect of their well-being (or that of their loved ones or allies) in a serious way, and that the damage was not simply inadvertent, but willingly and wrongfully inflicted.¹⁶

Changing any element in these complex families of beliefs can bring about a change in the audience’s emotions. For example, suppose the orator now wants to remove fear. He can try to convince his audience that, after all, the damage they fear is not really serious. (We do not fear the loss of trivial items, such as paper clips and toothbrushes.) Or he can convince them that it is not really likely to occur. (We typically don’t fear an invasion from Mars.) Or he can convince them that, if the bad thing does occur, they can surely ward it off and prevent any serious damage. (In this way, we don’t fear dying of a tooth abscess, even though we know that, left untreated, cavities can lead to an abscess that can go straight to the brain, because we are sure that we can take effective action long before the really bad thing happens.) Similarly, he can remove their anger against the Persians by altering any member of the relevant family of beliefs: he can convince them that the damage was done by the Scythians, not the Persians; or he can convince them that it was trivial, not serious; or he can convince them that it didn’t happen at all; or he can convince them that the Persians did the bad thing by accident, not in a culpable way.

Aristotle’s account is convincing: beliefs are essential bases for emotion. Each type of emotion is associated with a specific family of beliefs such that, if a person doesn’t have, or ceases to have, the beliefs in the relevant family, she will not have, or will cease to have, the emotion. That is why political rhetoric is emotionally powerful. Obviously enough, politicians have no way of directly influencing the bodily states and the feelings of their audience. What the...