Hiding From Humanity Disgust Shame & The

Should laws about sex and pornography be based on social conventions about what is disgusting? Should felons be required to display bumper stickers or wear T-shirts that announce their crimes? This powerful and elegantly written book, by one of America's most influential philosophers, presents a critique of the role that shame and disgust play in our individual and social lives and, in particular, in the law.

Martha Nussbaum argues that we should be wary of these emotions because they are associated in troubling ways with a desire to hide from our humanity, embodying an unrealistic and sometimes pathological wish to be invulnerable. Nussbaum argues that the thought-content of disgust embodies "magical ideas of contamination, and impossible aspirations to purity that are just not in line with human life as we know it." She argues that disgust should never be the basis for criminalizing an act, or play either the aggravating or the mitigating role in criminal law it currently does. She writes that we should be similarly suspicious of what she calls "primitive shame," a shame "at the very fact of human imperfection," and she is harshly critical of the role that such shame plays in certain punishments.

Drawing on an extraordinarily rich variety of philosophical, psychological, and historical references--from Aristotle and Freud to Nazi ideas about purity--and on legal examples as diverse as the trials of Oscar Wilde and the Martha Stewart insider trading case, this is a major work of legal and moral philosophy.

“…any reader who approaches her book with views firmly set is likely to leave it with solid certainties somewhat shaken”. David Honigmann, Financial Times

"This exciting book on emotions and the law tackles universal questions central to every legal system. We may pretend that law is a wholly rational discipline. We may try to tame strong emotions. But as Martha Nussbaum shows in her analysis of the passions that influence our attitude to law and its problems, we cannot deny our human feelings. Sometimes in the law, however, we strongly need to keep them in check. Intuition, in particular, is often wrong. Disgust is sometimes based on an infantile dislike of the unfamiliar."--Justice Michael Kirby, High Court of Australia

"This elegantly written book interweaves materials from psychoanalytic theory, ancient and contemporary moral and political philosophy, literature and law. Hiding from Humanity represents a comprehensive, sustained, and highly impressive analysis of the emotions of shame and disgust and the role they play in moral and legal analysis."--Seana Shiffrin, University of California, Los Angeles

"A pleasure to read. The skill and dexterity of Nussbaum's arguments demonstrate why she is so widely admired."--Jack M. Balkin, Yale University

Martha C. Nussbaum is the Ernst Freund Distinguished Service Professor of Law and Ethics in the Philosophy Department, Law School, and Divinity School at the University of Chicago. Her most recent book is "Upheavals of Thought: The Intelligence of Emotions".

Acknowledgments xiii

Introduction 1

I. Shame and Disgust: Confusion in Practice and Theory 1

II. Law without the Emotions? 5

III. Two Problematic Emotions 13

Chapter 1. Emotions and Law 19

I. Appeals to Emotion 20

II. Emotion and Belief, Emotion and Value 24

III. Emotions, Appraisal, and Moral Education 31

IV. Emotion and the "Reasonable Man": Manslaughter, Self-Defense 37

V. Emotions and Changing Social Norms 46

VI. Reasonable Sympathy: Compassion in Criminal Sentencing 48

VII. Emotions and Political Liberalism 56

VIII. How to Appraise Emotions 67

Chapter 2. Disgust and Our Animal Bodies 71

I. Disgust and Law 72

II. Pro-Disgust Arguments: Devlin, Kass, Miller, Kahan 75

III. The Cognitive Content of Disgust 87

IV. Disgust and Indignation 99

V. Projective Disgust and Group Subordination 107

VI. Disgust, Exclusion, Civilization 115

Chapter 3. Disgust and the Law 124

I. Disgust as Offense, Disgust as Criterion 125

II. Disgust and the Offender: The "Homosexual-Provocation" Defense 126

III. Disgust and the "Average Man": Obscenity 134

IV. Disgust as a Reason for Illegality: Sodomy, Necrophilia 147

V. Disgust and Nuisance Law 158

VI. Disgust and the Jury: "Horrible and Inhuman" Homicides 163

Chapter 4. Inscribing the Face: Shame and Stigma 172

I. The Blushing Face 173

II. Primitive Shame, Narcissism, and the "Golden Age" 177

III. The Refusal of Imperfection: The Case of B 189

IV. Shame and Its Relatives: Humiliation, Embarrassment 203

V. Shame and Its Relatives: Disgust, Guilt, Depression, Rage 206

VI. Constructive Shame? 211

VII. Stigma and Brand: Shame in Social Life 217

Chapter 5. Shaming Citizens? 222

I. Shame and the "Facilitating Environment" 223

II. Shame Penalties: Dignity and Narcissistic Rage 227

III. Shame and "Moral Panics": Gay Sex and "Animus" 250

IV. Moral Panics and Crime: The Gang Loitering Law 271

V. Mill's Conclusion by Another Route 278

Chapter 6. Protecting Citizens from Shame 280

I. Creating a Facilitating Environment 282

II. Shame and a Decent Living-Standard 282

III. Antidiscrimination, Hate Crimes 287

IV. Shame and Personal Privacy 296

V. Shame and People with Disabilities 305

Chapter 7. Liberalism without Hiding? 320

I. Political Liberalism, Disgust, and Shame 321

II. Mill's Defense of Liberty Reconsidered 322

III. The Case against Disgust and Shame 335

IV. Emotions and Forms of Liberalism 340

Notes 351

List of References 389

General Index 401

Index of Case Names 412