Danger to Human Dignity:

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The Revival of Disgust and Shame in the Law: While the effort is made to make the law impartial and unprejudicial, that does not mean that some emotions — e.g. compassion — do not have a role in legal affairs. Emotion is not inherently opposed to reason insofar as it is in the service of evaluation. But the role of some emotions — notably disgust and shame — in the law is more controversial, while enjoying a remarkable revival in our society.

Penalties based on shaming encourage stigmatization of offenders by encouraging us to view them as “disgraced or disgraceful.” This is in contrast to other democratic trends which discourage stigmatization and guard against shame, typified by the treatment of people with disabilities. Should the law protect people from insults to their dignity or shame them? Do criminals forfeit their right to these human dignities?

Disgust serves as the primary or sole reason to make some acts illegal; many standards for obscenity, for example, depend on the disgust of the average viewer, and similar principles underlie laws against homosexual relations between consenting adults. Disgust of the judge or jury also acts as an aggravating factor, and the disgust of the perpetrator as a mitigating factor, in considering penalties for acts already illegal on other grounds.

The theoretical grounds for these expanded roles for disgust and shame are scant. Shame-based penalties are frequently defended as expressions of shared values. This leaves much room to target people who make the dominant majority uncomfortable. Making acts illegal simply because of the disgust of the majority is justified, mostly but not exclusively by social cosnservatives, as defending society’s integrity against threat. [This explains — but does not justify, of course — the otherwise puzzling assertions of opponents of gay marriage that they are defending the institution against destruction.]

Disgust, although a primitive and evolutionarily conserved emotion which defended our forebears against noxious environmental threats, is nevertheless greatly shaped by social training and cognitive set. Nussbaum states that the essence of disgust is “shrinking from animality and mortality”. It is distinct from the merely dangerous — dangerous things can be tolerated and not abhorred if one stays clear of the danger, and disgusting things remain disgusting even when their danger is removed (Most people would not eat a sterilized cockroach; would you?). If what we are disgusted by serves to define our humanity as distinct from the animal, it has been used historically to define certain groups — Jews, women, foes during wartime — as subhuman.

“Thus throughout history certain disgust properties — sliminess, bad smell, stickiness, decay, foulness — have repeatedly and monotonously been associated with, indeed projected onto, people by reference to whom privileged groups seek to define their superior human status.”

Nussbaum sees this at work in what she calls “the central focus of disgust in today’s United States”, male loathing of the male homosexual.

So does this give us a legitimate basis to shape laws? Given that disgust is distinct from danger and indignation, should laws really be based on “the symbolic relationship an object bears to our anxieties” rather than protection against substantive harms? or, worse yet, on a confused indiscriminate mixture of these distinct types of aversion?

Shaming, the desire to stigmatize others, arises from our own insecurities, and human insecurity is inevitable, since we are at the mercy of a world which is uncontrollable and contingent.

“The more our development encourages us to expect and seek control, the more likely we are, finding out that we can’t really have it, to gain a substitute kind of safety by defining a dominant group as perfect, lacking in nothing, and projecting weakness and inadequacy onto an outside group. To the extent that societies can teach people that the desired condition is one of interdependence, rather than control and self-sufficiency, such pernicious tendencies can be minimized. But they are never likely to be completely eradicated, given that people really are weaker than they want to be and, as they grow older, are likely to have an increasing desire to conceal their weaknesses.”

Feared or threatening dissident groups are often conceived of as “deviant” and seen as destabilizing core moral values, even when the dissidents do not represent a realistic threat. [Again, the debate over gay marriage is readily seen through this lens.] A society based on nonstigmatizing equality is one in which grandiose fictions of perfection and control are given up.

“It may even be that a society in which people acknowledge their equal weakness and interdependence is unachievable because human beings cannot bear to live with the constant awareness of mortality and of their frail animal bodies. Some self-deception may be essential in getting us through a life in which we are soon bound for death, and in which the most essential matters are in fact beyond our control.”

Yet, Nussbaum concludes, even if unattainable it can be held up as a Platonic ideal, and it is worthwhile to “make sure that our laws are the laws of that community and no other.” — Martha Nussbaum, professor of law and ethics in the philosophy department, law school, and divinity school at the University of Chicago (The Chronicle of Higher Education)