On the folly of gross-out public policy. An interview with Martha Nussbaum
Communitarian and conservative scholars believe that shame and disgust have central roles to play in public life. But in her new book Hiding From Humanity (Princeton), University of Chicago professor of law and ethics Martha C. Nussbaum, who has written at length on moral psychology and emotion, argues that these sentiments tend to distort public discourse in highly illiberal ways. Assistant Editor Julian Sanchez interviewed Nussbaum in April.
Reason: In which current public policy debates do you see disgust or shame playing an especially pernicious role?
Martha C. Nussbaum: Disgust has traditionally played a large role in debates about the legality of same-sex sexual relations. The most famous appeal to disgust was Lord Devlin's claim, in this connection, that conduct that causes no harm to nonconsenting parties could be regulated by law if the average citizen (the "man on the Clapham omnibus") feels disgust when he thinks of such acts. Today, disgust is not defended as a sufficient ground for sodomy laws, but it does play a prominent role in debates over gay rights. For example, campaign literature on behalf of Colorado's Amendment Two (the law that denied local communities the right to make non-discrimination laws for sexual orientation, overturned in Romer v. Evans) said that gay men eat feces and drink raw blood. There are quite a few cases in which people who kill a gay man have been able to win a reduction from murder to manslaughter on the ground that they were disgusted by the person's (non-violent and non-threatening) sexual overture. Recently, [University of Chicago bioethicist] Leon Kass has argued that because disgust is a reliable piece of evidence that we are about to do something wrong, our disgust at the thought of cloning is a good reason to make that practice illegal.
Disgust also sometimes plays an aggravating role in homicide: The unusually disgusting nature of the murder is taken as a reason to put it in a class of murders with so-called aggravating features, a classification relevant to the applicability of the death penalty in some states.
Shame has been a prominent topic in recent discussions of punishment. Theorists and practitioners have favored bringing back the blush on the face, so to speak, punishing people by some form of public humiliation instead of a fine or community service. Shame punishments have a long history: Consider the "scarlet letter" and the pillory. The recent revival of interest in such punishments is closely connected with a sense (on the part of communitarians) that we have lost our public sense of shame, the collective social boundaries that shame once policed.
On the other side, our society also has been thinking a lot about how to protect citizens from shame. One can see this in particular in recent public debates about citizens with disabilities, where much attention is given to how both employment and education can be non-stigmatizing. One of my questions is whether it is coherent to favor a restoration of shaming in criminal punishment, while seeking to protect all citizens from shame. I hold that there is no surface inconsistency in such a position, but that there is a deeper inconsistency, because an interest in shame in punishment is ultimately inconsistent with respect for the equal dignity of all citizens.
Reason: What, more generally, is your objection to the appeal to disgust in public reasoning?
Nussbaum: I believe that we should not say that no emotions belong in public reason. Emotions aren't just mindless urges; they contain thoughts about matters of importance. Anger, for example, contains a thought about harm or damage; the emotion can't be defined, or distinguished from other negative emotions, without referring to those thoughts. Some emotions are essential to law and to public principles of justice: anger at wrongdoing, fear for our safety, compassion for the pain of others, all these are good reasons to make laws that protect people in their rights. Of course individual instances of anger, fear, and compassion may be misplaced, but in the cases where they stand up to scrutiny, we should go ahead and make law in response to those emotions. John Stuart Mill observed that in this way all of a society's ideas about law and justice might be seen as built on anger and fear.
Disgust, I argue (drawing on recent psychological research), is different. Its cognitive content involves a shrinking from contamination that is associated with a human desire to be non-animal. That desire, of course, is irrational in the sense that we know we will never succeed in fulfilling it; it is also irrational in another and even more pernicious sense. As psychological research shows, people tend to project disgust properties onto groups of people in their own society, who come to figure as surrogates for people's anxieties about their own animality. By branding members of these groups as disgusting, foul, smelly, slimy, the dominant group is able to distance itself even further from its own animality. Such irrational projections have been involved in antisemitism through the ages, and in misogyny in more or less every society. They are also involved in more localized forms of discrimination, such as the traditional Hindu caste hierarchy, or American discrimination against homosexuals.
Unlike anger, disgust does not provide the disgusted person with a set of reasons that can be used for the purposes of public argument and public persuasion. If my child has been murdered and I am angry at that, I can persuade you that you should share those reasons; if you do, you will come to share my outrage. But if someone happens to feel that gay men are disgusting, that person cannot offer any reasoning that will persuade someone to share that emotion; there is nothing that would make the dialogue a real piece of persuasion.
Reason: As a follow up, can you say something about how that cashes out into a critique of communitarian ideals?
Nussbaum: The prominent defenders of the appeal to disgust and shame in law have all been communitarians of one or another stripe ([Lord] Devlin, [Amitai] Etzioni, Kass), and this, I claim, is no accident. What their thought shares is the idea that society ought to have at its core a homogeneous group of people whose ways of living, of having sex, of looking and being, are defined as "normal." People who deviate from that norm may then be stigmatized, and penalized by law, even if their conduct causes no harm. That was the core of Lord Devlin's idea, and it is endorsed straightforwardly by Etzioni, and, in a rather different way, and in a narrower set of contexts, by Kass. My study of disgust and shame shows that these emotions threaten key values of a liberal society, especially equal respect for people and for their liberty. Disgust and shame are inherently hierarchical; they set up ranks and orders of human beings. They are also inherently connected with restrictions on liberty in areas of non-harmful conduct. For both of these reasons, I believe, anyone who cherishes the key democratic values of equality and liberty should be deeply suspicious of the appeal to those emotions in the context of law and public policy.
Reason: On the other side, you argue that liberal contractarian theories of the sort many libertarians find appealing (David Gauthier, James Buchanan, etc.) tend to give rise to a (paradoxically illiberal) shaming or stigmatization of "abnormal" or dependent citizens; can you sketch that argument briefly?
Nussbaum: Sure. I should also say that this argument is the theme of my Tanner Lectures in Human Values 2003, which will come out as a book eventually, so the very brief allusion to those ideas in the present book is actually a forecast of my next book. To put it very briefly: All theories based on the classical idea of the social contract hypothesize that people are "free, equal, and independent" (to use Locke's phrase) in the state of nature. Their rough equality in power and resources is an important part of such theories, since they hold that people will get together and bargain about the shape of a state only when it is mutually advantageous to do so. That condition would be defeated were the bargain to include people with unusually expensive needs, or people who can be expected to contribute less than most to the overall wellbeing of the group. People with severe mental disabilities are clearly in this class, as are many with physical disabilities. I then argue that the problem of care for and inclusion of people with disabilities (including elderly people who once were "normal") is one of the major problems of justice that any modern society must solve. It is a problem of justice for the person with a disability, since such people need protection for their self-respect and citizenship; it is also a problem for the people, almost always women, who provide the needed care for people in a condition of dependency or disability. This problem cannot be solved if we conceive of society as a bargain for mutual advantage. We need to develop a richer account of the purpose of social cooperation. In my new book I also apply this insight to justice between nations (for nations, obviously, are grossly unequal in power and resources).
Reason: You object even to what you call "moralized disgust", in part because of its putatively irrational connection with the idea of purity and contamination. Mightn't a liberal society want to inculcate in citizens a sense of disgust at certain attitudes—callousness or subtle racism, say—precisely because even generally good people may lapse into or be "contaminated" by these, such that a sense of disgust provides a sort of psychic bulwark?
Nussbaum: You raise a good question, and one that one of the legal thinkers whom I criticize in the book, Dan Kahan of Yale Law School, raises effectively. I think that even the moralized form of disgust is problematic, for two reasons. First of all, it is frequently a screen for the more primitive kind of disgust. When people express disgust about a group whom they take to be a source of social decay, citing moral grounds, there is often something much uglier going on. Consider one communitarian theorist's statement that first-time drug offenders in the inner city should be sent home with their belts removed and their pants down around their ankles. That parades as a moral response to the evil of drug use, but I bet it has something to do with anxiety about the sexuality of African-American men. Second, even when the moralized disgust is not a screen for something else, it is ultimately an unproductive social attitude, since its direction is anti-social. Anger is constructive: Its content is, "This harm should not have occurred, and the imbalance should be righted." Most philosophical definitions of anger include the thought that the wrong should be punished or somehow made good. Disgust, by contrast, expresses a wish to separate oneself from a source of pollution; its social reflex is to run away. When I am disgusted by certain American politicians, I fantasize moving away to Finland—a country in which I have worked a little, and which I see as a pure blue and green place of unpolluted lakes, peaceful forests, and pristine social-democratic values. And I don't know it enough to know its faults. To fantasize about moving to Finland is not a constructive response to present American problems.
Reason: You write that disgust is problematic because it "embodies a shrinking from contamination that is associated with the human desire to be nonanimal" and that this is "irrational" because it "embod[ies] an aspiration to be a kind of being that one is not." Yet many (presumptively) reasonable comprehensive conceptions of the good make some form of aspiration to "nonanimality" central. Is a categorical rejection of disgust on these grounds then available to a political liberal? Can a fully political principle, in other words, suppose an answer to a contested metaphysical question?
Nussbaum: I think that this is a wonderful question, and I really should have faced it more directly in the book. But I think we can say that the major religious and other comprehensive conceptions at least think that while one is on earth and in a human life, one ought to embrace that life and do well by it. Christianity is at pains to emphasize the full humanity of Christ, precisely to ward off a kind of perverse asceticism that would look straight to the other world, without doing justice to this one. That central doctrine has not prevented many Christians from being anti-body, but I believe that it is alien to the original spirit of Christianity. Judaism, my own religion, has never been anti-body, nor, really, to my knowledge, has Islam. Hinduism has traditionally held a very positive attitude about sexuality and the body, although one cannot deny that some texts, for example the Laws of Manu, do take a misogynistic line. Buddhism does appear to teach a detachment from the things of this world, but at the same time it emphasizes extremely strongly an active compassion for this-worldly suffering. In short, I think that in every doctrine where tendencies to excessive asceticism occur, one can also point to features of that doctrine, usually more central, that would enable it to accept my views as part of the political "overlapping consensus."
Reason: One can imagine a quasi-Hayekian argument that runs something like this: "Even if we cannot see any obvious way in which an object of pervasive disgust is correlated with a real danger, the sentiment is likely to be serving some kind of socially evolved function, whether we can specify it or not. This is a reason to give at least prima facie deference to even apparently irrational such attitudes." Do you think there's anything to that notion?
Nussbaum: In one simple form, I accept that argument. I believe disgust had an evolutionary function, by giving emphasis and force to the sense of danger. Even if disgust doesn't perfectly track danger, it is close enough as a heuristic, when we have no time to perform the needed inquiry, or are unable to perform it. Even today, when we have many ways of finding out about danger, the sense of disgust is a useful heuristic. If the milk smells disgusting, it's a pretty good rule not to drink it. We can't all the time be testing our environment for bacteria, so staying away from what disgusts is good practice. But I think this shows nothing about the utility of the projective form of disgust, in which we deem certain groups of people disgusting and assimilate them to feces, corpses, and disgusting animals. That may be a ubiquitous human activity, but ubiquity doesn't prove value, especially not ethical and political value. The ubiquity of the male domination of women doesn't show that this domination is ethically or politically good.
Reason: You connect the designation of certain disfavored groups as "disgusting" with our need to distance ourselves from our own animality and mortality. To the extent that this is an ineradicable feature of the human condition, is the same likely to be true of the need for a "disgusting" Other?
Nussbaum: The fact that all societies seem to contain such forms of discrimination suggests, at least, that it will be difficult to eradicate it. But with the projective form of disgust social teaching plays a large role. We can and do teach children not to react with disgust to people who are different in race, or sex, or bodily ability. Or rather, we simply do not teach them this disgust in the first place, and then they don't have it.
Reason: Shame is rejected as a legal tool in your book because it targets "the whole person" and not merely bad acts. But isn't it also true of rehabilitation that it aims, not merely at particular criminal acts, but to remedy the broader dispositions and character traits that gave rise to them? Might it be proper for a thief or vandal to feel, not only guilt for the particular acts, but also shame at being the sort of person who lacks appropriate regard for others and their things?
Nussbaum: Like my great colleague, the prison reformer Norval Morris, who died a few months ago, I am skeptical about the kind of rehabilitation that aims to reform the whole person. I think Morris—and [philosopher Michel] Foucault—are right that this sort of reform is too intrusive, too limiting of human freedom. What prisons should do is to offer training and opportunities, and then leave it to people to choose to avail themselves of these. If they want to become different, that is up to them and their loved ones. As to whether it is proper for the criminal to feel shame as well as guilt, perhaps—if the criminal act was really the outgrowth of a blameworthy character trait. (This is certainly not always the case.) But I think it is proper to direct shame at oneself and not at others, because one's own character is one's own responsibility and not that of others. Mill was right: people should not be nosing into the characters of other people; they should limit themselves to acts that cause harm.
Reason: Just for my own curiosity: Is the book's title an oblique nod to Bernard Williams' Making Sense of Humanity?
Nussbaum: You know, you are on to something. Williams was my teacher and friend. I have been extremely sad since his death, and even before, when he was ill for several years. And of course his ideas about shame enter into the book, although we differed considerably about shame and its social role. Perhaps that difference, and the guilt it occasioned in me, led me to want to make reparation to him by paying tribute to him in this way, although I had not noticed it until now.