Is it reasonable to have emotions such as anger and fear influence the level of criminal guilt assessed by the court? Should such emotions mitigate either the scope or severity of the crime or the degree of penalty imposed by a judge or jury? Particularly in a liberal society, should sentiments of disgust and the provocation of shame shape the construction of laws, constraint of individual actions, and civil punishment? These are some of the questions that occupy Hiding from Humanity: Disgust, Shame, and the Law, a predictably scholarly but accessible work by the University of Chicago philosopher Martha Nussbaum.
While the ideas Nussbaum treats are not completely new to readers familiar with her work, they are focused here through the lens of the emotions and their relationship—both descriptive and prescriptive—to a particular aspect of life in a liberal nation. Her stated purpose in the book is to examine the psychological foundations of liberalism and to explore the conditions necessary to sustain respect for human equality in a nation of law.
In her initial chapters Nussbaum sets up the issues on which she wishes to concentrate. With the deft use of thick cases (upon which she draws throughout the book) and the interjection of considerable research, she illustrates the impact strong emotion plays both in the commission of crimes and in decisions about punishment. She gives examples: the wife who kills her abusive husband because she fears he will kill her, the man whose strong and sustained feelings of anger move him to shoot the person with whom he had argued several minutes earlier. How, or whether, emotions connected with objectively criminal actions should influence the public or legal extension of the action is the subject of Nussbaum's inquiry. The emotions of real-life spectators, particularly jurors, also appear to play a part, particularly in sentencing. If a criminal evokes compassion in the jury, then should the harshness of the sentence imposed be diminished?
Is there, in criminal actions, such a thing as a “reasonable emotion” that might serve as a mitigating factor? If a woman kills her husband because he provoked fear in her every time that he beat her, and she expects that he will do it again in the future, is her terror reasonable, particularly if she kills him at a time when he is not actually beating her? Should this fear be used in an argument to find her innocent of the crime of murder, or merely taken into account when imposing punishment? Should it have no bearing at all on the case, because emotion cannot be reasonable and legal procedures must be based solely on reason? On the part of the judicial system, what is “reasonable” compassion toward the perpetrator, and what role should it play in the judicial process? Nussbaum will not dismiss emotions such as anger or fear from consideration in legal matters.
Nevertheless, other emotions come into play in shaping community behavior. Disgust is one of them. Sometimes a community legislates against certain actions—Nussbaum cites the examples of homosexual activity or stem cell research—based on the contention that such activity evokes disgust in many citizens (the “yuck” factor that one finds discussed in the bioethics literature). The claim is that certain acts or conditions cause most people to be repulsed, to register disgust. To protect citizens from having to confront disgusting things, the argument runs, these actions should be prohibited by the law. Nussbaum examines whether this “yuck” reaction is a learned response—children are taught to be disgusted by the idea of playing with the products of excretion—or a naturally occurring means of protecting humans from activities that could be harmful—contact with feces really can lead to illness.
Nussbaum contends that some reactions of disgust may indeed be self-protective, keeping the disgusted person from contamination or danger, but that there are some learned reactions of disgust that are socially conditioned by shared community values and which pose no real threat to anyone. Nussbaum concludes that prohibition of actions purported to evoke disgust, when those actions do not actually affect other people, has no place in a liberal society.
Sometimes societies will single out a particular group as the object of disgust. Nussbaum cites as examples women, particular ethnic groups or racial minorities (such as Jews or blacks), as well as those who represent a nonmajority lifestyle (homosexuals). The expectation of contamination resulting from association with actual “dangerous” taboo objects or activities is projected onto undesirable groups or ideas. They become defined by society as dangerous....
(The entire section is 1920 words.)