The arresting title of this clearly written book
encapsulates one of its central theses — that the emotions of disgust and shame
are ways in which we hide from our humanity. More specifically, these emotions
help us hide from the animalistic features of our humanity — our vulnerability
and mortality.

Professor Nussbaum suggests that notwithstanding
the value that disgust may have, "its thought-content is typically
unreasonable, embodying magical ideas of contamination, and impossible
aspirations to purity, immortality and non-animality" (p. 14). We distance
ourselves, through disgust, from reminders of our mortal animality.

The author argues that disgust should never be a
criterion for criminalizing activity. Nor does she think that it should be an
aggravating or mitigating factor in criminal trials. This is not because she
thinks that all emotions, which she distinguishes from bodily appetites and
objectless moods (p. 23), should play no role in the law. Instead, emotions
should be evaluated to determine their reasonableness. Disgust, however, is an
unreliable emotion, and particularly for the purposes of the law. This does not
mean, though, that humans should seek to eliminate all their feelings of
disgust (p. 121).

The author considers and rejects various
arguments that support disgust’s having a role in the law. In doing so, she
trounces the views of Patrick Devlin and Leon Kass who, although influential,
must surely be among the easier targets. She also rejects William Miller’s and
Dan Kahan’s more sophisticated pro-disgust arguments. Drawing on the work of
psychologist Paul Rozin (and others), the author argues that although disgust
may have an evolutionary basis, it is to be distinguished from both distaste
and (real or perceived) danger (pp. 87-8). Instead disgust is a policing of the
borders of body, preventing "contamination" by substances that we
connect, sometimes merely psychologically, "with our vulnerability to
decay and to becoming waste products ourselves" (pp. 89-90). Professor
Nussbaum then argues that disgust "has throughout history been used as a
powerful weapon in social efforts to exclude certain groups and persons"
(p. 107). She shows how this is true of the Jew in much anti-Semitic propaganda
and of male homosexuals in today’s United States. She also argues that it is true of
misogynistic disgust with the female body. When disgust functions to exclude
such groups it is, she argues, particularly troubling.

In arguing that disgust ought not to be used as
a legal criterion, the author considers a number of cases. She argues that
disgust for the victim of a violent crime should never "fulfill the legal
requirements for a provocation defense" (p. 127). Here she discusses
attacks on homosexuals that are allegedly provoked by the aggressor’s disgust
for the victim. Nor should disgust for a crime, she argues, be used as a
criterion for finding some homicides to be especially heinous. She also argues
against a disgust criterion for obscenity. A prohibition on necrophilia, she
says, is not best justified by a disgust criterion, and nuisance law may only
protect people from disgust when the disgust is itself the harm and not when it
is criterion of wrongfulness.

Shame, Professor Nussbaum says, is a less
problematic emotion than is disgust, given the positive role shame plays in
human life. Nevertheless, what she calls "primitive shame" is a
painful emotion that arises from a sense of some exposed inadequacy in oneself — an inadequacy that one seeks to hide. Since being human involves inadequacies
of various kinds, shame is another way in which we seek to hide from our
humanity. It is rooted, she argues, in an infantile desire for omnipotence.
Because of this origin in a desire to be in control it can lead to the
denigration of others. Those who are stigmatized and shamed are "non-normals".
However, Professor Nussbaum argues, nobody is a (permanent) normal. Everybody
is abnormal in some respect, at least at some time. But this fact has to be
hidden. One way to do this is to focus on the abnormality of others, typically
the most vulnerable. The temptation is to distance oneself from one’s own animality
by distinguising oneself from non-normals whose animality is found to be
disgusting.

The author argues that the law should not be
used to shame people. Thus she makes a compelling case against those
punishments (such as convicted drunken drivers being forced to drive with a
"DUI" sign on their car) that consist in shaming. She also argues
against the shaming elements of those punishments, such as imprisonment, that
are not in themselves intended to shame. But the state should not simply desist
from inflicting shame, argues Professor Nussbaum. Drawing on Avishai Margalit’s
notion of the "decent society", she argues that the state should also
actively protect people from shame and stigma. Accordingly, it should, for
example, ensure a decent standard of living because those who do not enjoy this
are shamed through the stigma of poverty. Similarly, anti-discrimination should
be legislated, and hate crimes forbidden.

In the final chapter, the author makes explicit
how her arguments generate liberal conclusions. Given that both disgust and
shame are prone to stigmatizing those who are not part of the dominant group,
these emotions "provide bad guidance for law in a society committed to
equal respect among persons" (p. 337). And it is equal respect that
Professor Nussbaum takes to be the heart of liberalism in its most plausible
form. She says that her arguments support something close to John Stuart Mill’s
famous harm principle (according to which acts may only be
prohibited when they cause harm to non-consenting parties). However, she suggests
that her arguments provide better support for this principle than do JS Mill’s
own arguments.

It should be clear, not only from the book’s
title but also from some of its arguments (not all of which have been recounted
here), that the author takes her understanding of the psychology of disgust and
shame to be crucial to her argument. But one of two objections could be raised.
First, it might be asked whether disgust and shame really do need to be viewed
as ways in which we hide from our humanity. The psychologists to whom Professor
Nussbaum refers do indeed think that the objects of true disgust are always
either animals or animal products. But does it follow that disgust is a way of
hiding from humanity? It may instead be a way of acknowledging our humanity and
expressing our repugnance at its inherent animality. On this view, it is not
disgust itself but rather its bounds — the absence of disgust, or greater
disgust, about more of ourselves — that constitutes the hiding.

Shame might be viewed as a hiding of
rather than from humanity. The latter amounts to hiding one’s
vulnerabilities from oneself and others, whereas the former amounts to hiding
of one’s vulnerabilities from others but not also from oneself. Accordingly,
hiding of one’s humanity is compatible with a vivid self-acknowledgement of
one’s humanity. None of this is to say that humans do not hide from unpleasant
features of humanity. It is only to question whether disgust and shame are
(always, in all people) part of this hiding. Much more work would be needed in
order to demonstrate that disgust and shame are ways of hiding rather than
acknowledging our animal nature and attendant weaknesses.

This brings us to the second possible objection. It
might be asked what difference it makes to the argument whether disgust and
shame are or are not ways of hiding from humanity. Disgust is easily shown to
be an unreliable barometer of a practice’s moral status, irrespective of how
one answers the first question. (One does not need to see disgust as a way of
hiding from humanity in order to recognize that earlier widespread disgust at
miscegenation, for example, does not show that so-called inter-racial breeding
is or was wrong.) And the arguments against shaming, such as the claim that it
is incompatible with dignity or that it marks people as deviants, need not
presuppose that shame is a way of hiding from humanity. Professor Nussbaum
believes that her understanding of shame shores up the dignity argument by
showing that shaming "typically expresses — a denigration of the very
humanity of the people being shamed". But shaming would be as bad if it
dehumanized those who are shamed rather than denigrated their humanity. (And if
dehumanization and denigration of humanity are viewed as being synonymous, then
it is far from clear that one needs to see shame as a way of hiding from
humanity in order to see shaming penalties having this effect.)

If disgust and shame are not best understood as
ways of hiding from humanity, then this potent image is not as helpful as
Professor Nussbaum suggests. However, because so many of her conclusions can be
defended without recourse to this image, they may well not need the extra help.
Her wide-ranging discussion of disgust and shame in the law is methodical and
engaging.

©
2004 David Benatar

David Benatar is Associate Professor in the
Department of Philosophy at the University of Cape Town, South Africa.

Categories: Philosophical