HEED THE REPUGNANCE:

Danger to Human Dignity: the Revival of Disgust and Shame in the Law (MARTHA C. NUSSBAUM, Chronicle of Higher Education)

The law, most of us would agree, should be society's protection against prejudice. That does not imply that emotions play no legitimate role in legal affairs, for often emotions help people to see a situation clearly, doing justice to the concerns that ought to be addressed. The compassion of judge and jurors during the penalty phase of a criminal trial, for example, has been held to be an essential part of criminal justice, a way of connecting to the life story of a defendant whose experience seems remote to those who sit in judgment. Emotions are not intrinsically opposed to reason, for they involve pictures of the world and evaluations. But there are some emotions whose role in the law has always been more controversial. Disgust and shame are two of those.

And disgust and shame are enjoying a remarkable revival in our society, after years during which their role in the law was widely criticized.

Consider shame: A California judge orders a man convicted of larceny to wear a shirt stating, "I am on felony probation for theft." In Florida, drunk drivers are required to display bumper stickers announcing, "Convicted DUI." Similar stickers have been authorized in other states, including Texas and Iowa.

Disgust, too, is making its way into the law. Stephen Roy Carr, a drifter lurking in the woods near the Appalachian Trail, saw two women making love at 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 at their lesbian behavior had produced a reaction of overwhelming revulsion that led to the crime.

In a 1973 opinion that is still the central source for the law of obscenity, Chief Justice Warren E. 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 "obscene" from the Latin caenum, "filth."

If shame and disgust are prominent in the law, as they are in our daily lives, do we really understand the role they play? Have we sufficiently investigated the thoughts involved in each of these emotions? Or do common assumptions that emotions are devoid of thought prevent us from asking the questions that we ought to ask?

Penalties based on shaming encourage the stigmatization of offenders, asking us to view them as disgraced and disgraceful. At the same time, other current trends in our democracy, typified by our treatment of people with disabilities, discourage persistent habits of stigmatization and shaming, in the name of human dignity and individuality. There seems to be a 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.

From the first halluginogenic sentence onward this piece is ludicrous. Can you even discuss morality with someone who can't discern a moral difference between being born disabled, or female, or black, or whatever as opposed to voluntarily engaging in abhorrent behavior? What better basis is there for morality, and thereby for law, than repugnance.

Posted by Orrin Judd at August 4, 2004 10:40 PM