Disgust and Shame in the Law

Danger to Human Dignity: the Revival of Disgust and Shame in the Law
The Chronicle of Higher Education, August 6, 2004

By MARTHA C. NUSSBAUM

(Martha C. Nussbaum is a professor of law and ethics in the philosophy department, law school, and divinity school at the University of Chicago. Her most recent book, Hiding From Humanity: Disgust, Shame, and the Law, was published this spring by Princeton University Press.)

The law, most of us would agree, should be society's protection against prejudice. That does not imply that emotions play no legitimate role in legal affairs, for often emotions help people to see a situation clearly, doing justice to the concerns that ought to be addressed. The compassion of judge and jurors during the penalty phase of a criminal trial, for example, has been held to be an essential part of criminal justice, a way of connecting to the life story of a defendant whose experience seems remote to those who sit in judgment. Emotions are not intrinsically opposed to reason, for they involve pictures of the world and evaluations. But there are some emotions whose role in the law has always been more controversial. Disgust and shame are two of those.

And disgust and shame are enjoying a remarkable revival in our society, after years during which their role in the law was widely criticized.

Consider shame: A California judge orders a man convicted of larceny to wear a shirt stating, "I am on felony probation for theft." In Florida, drunk drivers are required to display bumper stickers announcing, "Convicted DUI." Similar stickers have been authorized in other states, including Texas and Iowa.

Disgust, too, is making its way into the law. Stephen Roy Carr, a drifter lurking in the woods near the Appalachian Trail, saw two women making love at their campsite. He shot them, killing one and seriously wounding the other. At trial, charged with first-degree murder, he argued for mitigation to manslaughter on the grounds that his disgust at their lesbian behavior had produced a reaction of overwhelming revulsion that led to the crime.

In a 1973 opinion that is still the central source for the law of obscenity, Chief Justice Warren E. Burger wrote that the obscene must be defined in a manner that includes reference to the disgust and revulsion that the works in question would inspire in "the average person, applying contemporary community standards." To make the connection to disgust even clearer, Justice Burger added a learned footnote about the etymology of the term "obscene" from the Latin caenum, "filth."

If shame and disgust are prominent in the law, as they are in our daily lives, do we really understand the role they play? Have we sufficiently investigated the thoughts involved in each of these emotions? Or do common assumptions that emotions are devoid of thought prevent us from asking the questions that we ought to ask?

Penalties based on shaming encourage the stigmatization of offenders, asking us to view them as disgraced and disgraceful. At the same time, other current trends in our democracy, typified by our treatment of people with disabilities, discourage persistent habits of stigmatization and shaming, in the name of human dignity and individuality. There seems to be a tension between support for punishments that humiliate and the general concern for human dignity that lies behind the extension of stigma-free status to formerly marginalized groups -- and, in general, between the view that law should shame malefactors and the view that law should protect citizens from insults to their dignity.

Disgust, too, functions in complicated ways. It serves, sometimes, as the primary or even sole reason for making some acts illegal. Thus the disgust of the reader or viewer is one primary aspect of the definition of obscene materials under current obscenity law. Similar arguments have been used to support the illegality of homosexual relations between consenting adults: Such acts should be illegal, it has often been said, because the "average man" feels disgust when he thinks about them. Ideas based on our tendency to experience disgust also appear to be involved in the debate over gay marriage, especially when people suggest that gay marriages would defile heterosexual marriage.

Disgust has been used as well as an aggravating factor in acts already illegal on other grounds: The disgust of judge or jury at a murder whose gory or bloody aspects are vividly described may put the defendant into a class of especially heinous offenders, a factor often relevant to the applicability of the death penalty. However, disgust also plays a role in mitigating culpability. Although Stephen Roy Carr did not succeed in winning a reduction in the charge against him, other offenders have succeeded with a similar defense based on disgust.

If we turn to the theoretical literature, our sense of perplexity only grows, because there is a marked revival of the idea that disgust and shame are reliable and valuable forces on which law may rightly be based, but little sustained critical scrutiny of such ideas. Shame-based penalties are frequently defended by communitarian theorists (who promote the importance of social cohesion and homogeneity) as valuable expressions of shared values.

In his 2001 book The Monochrome Society (Princeton University Press), for example, Amitai Etzioni, a leading communitarian, memorably suggested that society would improve if young drug dealers, caught in a first offense, were "sent home with their heads shaved and without their pants." In a similar vein (although he didn't even require that those to be stigmatized be convicted of an offense), the conservative commentator William F. Buckley Jr. proposed in a 1986 newspaper article that gay men with AIDS should be tattooed as such on their buttocks.

Theorists suggest that what is good about such penalties is the fact that they stigmatize vice; but they offer no sustained analysis of the operations of shame and stigma that would help convince us that the penalties are likely to be reliably directed at vice, rather than at unpopular people or people who make the dominant majority uncomfortable. Yet some writers, such as the legal theorists Toni M. Massaro and James Q. Whitman, have strongly opposed a reliance on humiliation in punishment -- but, like the people with whom they disagree, the theoretical basis of their conclusions is somewhat underdeveloped.

Disgust is equally perplexing in theory. The appeal to disgust in law has its most famous defense in Lord Devlin's The Enforcement of Morals (Oxford University Press, 1959), an influential work of conservative political thought. Lord Devlin argued that the disgust of average members of society (the "man on the Clapham omnibus") gives us a strong reason to make an act illegal, even if it causes no harm to others. That is so, he claimed, because every society has the right to preserve itself.

More recently, the legal theorist William I. Miller, while apparently disagreeing with Devlin about some concrete policy matters (since he appeared to favor at least some liberal policies on issues of sex and sexual orientation), supported Devlin's general line. Miller argued in the 1997 book The Anatomy of Disgust (Harvard University Press) that a society's hatred of vice and impropriety necessarily involves disgust and cannot be sustained without it.

And Leon R. Kass, chairman of President Bush's Council on Bioethics, wrote in "The Wisdom of Repugnance" (1997) that our responses of disgust embody a wise aversion to evil that can steer us reliably in times of social change. Such views are built into many of our legal traditions: Sodomy laws, for example, have typically been defended in Devlin's way, by an appeal to the feelings of average people.

Like the legal writings on shame, theoretical analyses of disgust offer too little theory. Only Miller provided a sustained analysis of the emotion of disgust, and he did not connect it to any concrete legal conclusions. Moreover, the analyses are inconsistent with each other: Devlin liked disgust because it expresses deep-seated social conventions, Kass because it (allegedly) expresses a wisdom that lies deeper than mere convention. No examination of the genesis and cognitive content of the emotions was offered to support either position.

For their part, opponents of disgust in the law, like the theorists H.L.A. Hart and Ronald W. Dworkin, have argued that the appeal to disgust is somehow illiberal, but they have offered no concrete analysis of the emotion that would help us see why disgust would be more problematic than other emotions (like compassion, anger, and fear) that the law indubitably, in at least some cases, incorporates.

I believe that we can sort through this confusion only if we begin with a deeper and more detailed understanding of the emotions of shame and disgust and their role in the narrative history of human life. If we draw on cognitive psychology and psychoanalysis for a richer view, we will see that there is something very problematic about these two emotions, something of which a liberal society should indeed be suspicious. They are linked to a general shrinking from the bodily nature of human life, and hence to various forms of prejudice, exclusion, and misogyny, as people project the discomfort they feel about mortality and decay onto vulnerable groups and individuals.

Let us look in depth at disgust. Disgust appears to be an especially visceral emotion. It involves strong bodily reactions to stimuli that often have marked sensory characteristics. Its classic expression is vomiting; its classic stimulants are vile odors and other objects whose very appearance seems loathsome. Nonetheless, important research by Paul Rozin, a psychologist, has made it evident that disgust has a complex cognitive content. Rozin does not dispute that disgust may well have an underlying evolutionary basis; but he shows that social training crucially shapes the form that the underlying tendencies take.

Disgust is distinct from both distaste, a negative reaction motivated by sensory factors, and from a sense of danger, motivated by anticipated harmful consequences. Disgust is not simple distaste because, Rozin has found, the very same smell elicits different disgust reactions depending on the subject's conception of the object. Subjects sniff decay odor from two different vials, both of which in reality contain the same substance; they are told that one vial contains feces and the other contains cheese. (The real smells are confusable.) Those who think that they are sniffing cheese usually like the smell; those who think they are sniffing feces find it repellent and unpleasant. It is the subject's conception, rather than the sensory properties of the object, that primarily determines the disgust response.

Nor is disgust the same as perceived danger. Dangerous items (for instance, poisonous mushrooms) are tolerated in the environment, as long as they will not be ingested; disgusting items are not. When danger is removed, the dangerous item will be ingested: Detoxified poisonous mushrooms are acceptable. But disgusting items remain disgusting even when all danger is removed. People refuse to eat sterilized cockroaches; many, Rozin has shown, object even to swallowing a cockroach inside an indigestible plastic capsule.

Disgust concerns the borders of the body: the possibility that an offensive substance may be incorporated into and debase a person. The core objects of disgust are animals or their secretionsabove all feces, bodily wastes, and corpses, or creatures who have (or appear to have) related properties (ooziness, sliminess, decay). To put it very briefly, it would appear that disgust embodies a shrinking from animality and mortality, which, if taken in, would contaminate the human being who has a stake in rising above the merely animal.

Disgust is, then, very different from anger and indignation. Anger is about damage or harm. For that reason, it is very closely related to a central function of the legal system- namely, that of protecting citizens from harm, and punishing harms that occur. The reasons underlying a particular case of anger may, of course, be false or distorted; but if they stand up to scrutiny, we can expect the law to take an interest in them, and nobody would dispute the legitimacy of its doing so. Disgust is different. It is by no means clear that feeling grossed out by something gives the disgusted person a set of reasons that plausibly lead to making conduct illegal, especially when we note, as does Rozin, the irrational and associational thinking so often involved in disgust.

But if disgust is problematic in principle, we have all the more reason to regard it with suspicion when we observe that throughout history it has been used as a powerful weapon in social efforts to exclude certain groups and persons. So strong is the desire to cordon ourselves off from our animality that we often don't stop at feces, cockroaches, and slimy animals. We need a group of human beings to bound ourselves against, to exemplify the line between the truly human and the basely animal. If those quasi animals stand between us and our own animality, then we are one step further away from being animal and mortal ourselves.

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. The stock image of the Jew, in anti-Semitic propaganda, was that of a being with a disgustingly soft and porous body, womanlike in its oozy sliminess, a foul parasite inside the clean German male self. Hitler described the Jew as a maggot in a festering abscess, hidden away inside the apparently clean and healthy body of the nation.

Similar disgusting properties are traditionally associated with women. In more or less all societies, women have been vehicles for the expression of male loathing of the physical and the potentially decaying. Taboos surrounding sex, birth, menstruation -- all express the desire to ward off something that is too physical, that partakes too much of the secretions of the body.

Consider, finally, the central locus of disgust in today's United States, male loathing of the male homosexual. Female homosexuals may be objects of fear, or moral indignation, or generalized anxiety, but they are less often objects of disgust. Similarly, heterosexual females may feel negative emotions toward the male homosexual -- fear, moral indignation, anxiety -- but again, they rarely feel emotions of disgust. What inspires disgust is male fear of anal penetration: of breaking down the sacred boundary against stickiness, ooze, and death. The presence of a homosexual male in the neighborhood inspires the thought that a man might himself be contaminated. The very look of such a male is itself contaminating -- as we see in the extraordinary debates about showers in the military.

Does disgust, then, contain a wisdom that steers law in the right direction? Surely the moral progress of society can be measured by the degree to which it separates disgust from danger and indignation, basing laws and social rules on substantive harm, rather than on the symbolic relationship an object bears to our anxieties. (Thus the Indian caste system was less civilized than the behavior of Mahatma Gandhi, who cleaned latrines in order to indicate that we share a human dignity that is not polluted by such menial functions.)

There are many areas of law to which such ideas might lead us; let me focus on just one. Legal accounts of the obscene in the Anglo-American common-law tradition standardly refer to the disgusting properties of a questionable work as they relate to the sensibilities of a hypothetical "average man." The legal standard set by the U.S. Supreme Court in Miller v. California in 1973 holds that "a work may be subject to state regulation where that work, taken as a whole, appeals to the prurient interest in sex; portrays, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and, taken as a whole, does not have serious literary, artistic, political or scientific value." That determination is to be made from the point of view of "the average person, applying contemporary community standards." Disgust enters the picture in two ways: as a means to articulate the notion of the "patently offensive," as well as to define "prurient interest" (something that is a "shameful or morbid interest in nudity, sex, or excretion").

In order to make those connections clearer, Justice Burger, writing for the majority, analyzed the concept of obscenity in a fascinating footnote. Criticizing an earlier decision for not offering a precise definition of the obscene, he first traced the etymology of the word "obscene" from the Latin caenum, "filth." Next he cited a current dictionary definition of "obscene" as "disgusting to the senses ... grossly repugnant to the generally accepted notions of what is appropriate ... offensive or revolting" and another dictionary definition of "obscene" as "offensive to the senses, or to taste or refinement; disgusting, repulsive, filthy, foul, abominable, loathsome."

That, however, was not the end of the matter. The note then added that the material being discussed in the Miller case was "more accurately defined as 'pornography' or 'pornographic material.'" In other words, the concept of the "obscene" underwent further refinement and analysis via the concept of the "pornographic." The etymology of "pornography," from the Greek term for "harlot," is then discussed, and pornography is defined (via a dictionary) as "a depiction ... of licentiousness or lewdness: a portrayal of erotic behavior designed to cause sexual excitement."

The mingling of ideas in that account is truly fascinating. In order to offer a "precise" definition of the notion of "prurient interest," the court brought in the concept of the disgusting; that concept, in turn, was rendered "more accurately" by reference to the concept of the female whore and the related idea of a "portrayal of erotic behavior designed to cause sexual excitement." In other words, that which appeals to prurient interest is that which disgusts, and that which disgusts is that which (by displaying female sexuality) causes sexual excitement. But aren't disgust and sexual arousal very different things?

The linking of those ideas has in fact caused some legal conundrums. In a 1987 case in the Fourth Circuit concerning films depicting human intercourse with animals, U.S. v. Guglielmi, the defense argued that the materials in question were not obscene because they were surely not sexually arousing to the "average person"; indeed, the "average person" would find films like Snake Fuckers, Horsepower, and Horny Boar pretty revolting. Undaunted by that difficulty, the unanimous three-judge panel responded that the obscene is the disgusting, and it surely would be inconsistent with the spirit of the law to find milder materials obscene because they aroused average people, and to let more deeply revolting materials off because they disgusted average people.

But why, we might ask, should one ever have supposed that the ideas mixed together in Miller would go together? What is sexy about the disgusting, and what is disgusting about the activities of a female whore? The answer should by now be all too evident. In the confusion of concepts we discern the time-honored view that sex itself has something disgusting about it, something furtive and self-contaminating, particularly if it is the body of a female whore that has been tainted by the bodily secretions of numerous men. The female body is seen as a filthy zone of pollution, disgusting to males because it is the evidence of the male's own embodiment, animality, and mortality.

Such connections are nothing new. In the early 20th century, for example, James Joyce's Ulysses was attacked as obscene. Often complaints focused on its frank depiction of a woman's nonmarital sexual desires (in Molly Bloom's famous monologue, combined with ruminations about her menstrual period, deflationary thoughts about the penis, and memories of love). Joyce believed that our disgust with our own bodily functions lay at the root of much social evil -- nationalism, fanaticism, misogyny. Like D.H. Lawrence, he held that a healthy society would be one that came to grips with its own mortal bodily nature. Joyce's novel, of course, is the opposite of disgusting to one who reads it as it asks to be read. It presents the body as an object of many emotions -- desire, humor, tender love, calm acceptance. But one emotion that is conspicuously absent from its invitation to readers is the emotion of disgust.

We have good reasons, then, to doubt whether the disgust of the "average man" would ever be a very reliable test for what might be legally regulable in the realm of art. In many other areas, deeper psychologically informed analysis of specific emotions would also help us advance beyond simplistic generalizations about "emotion" in the law.

Take shame. It is connected to deep human insecurities that similarly project themselves outward, via the stigmatization of vulnerable people and groups. As Erving Goffman showed in his classic sociological analysis, Stigma (Prentice-Hall, 1963), all societies contain a composite image of the "normal" person that is actually embodied, as a whole, by more or less nobody. (Goffman's account of the American norm is that of "a young, married, white, urban, northern, heterosexual Protestant father of college education, fully employed, of good complexion, weight and height, and a recent record in sports.") People who lack any of those desirable characteristics are made to feel shame; so more or less all of us feel shame about something. But some people's lives are more dominated by shame than others. Racial and sexual minorities, and people with marked physical disabilities in particular are ostracized and made to feel that they must hide themselves.

Why do all societies inflict stigma? I suggest that the desire to stigmatize others grows out of the insecurity that all human beings experience, being intelligent creatures who soon learn how weak and helpless they are in regard to things of the highest importance. 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.

The history of punishment bears witness to the ubiquity of the desire to shame others. In many societies, penalties based on shaming (tattoos and brands, the stocks, the pillory, the scarlet letter) are often introduced at first to target a truly harmful vice. But history shows that they quickly take on a different purpose: to demonize people who are merely unpopular or who belong to a minority religion or sexuality. We hear many proposals today to revive shame-based punishments; given the history of such punishments, they need to be examined with a skeptical eye.

Fear of a dissident minority often masquerades as moral disapproval. Societies frequently experience what social scientists call "moral panics," in which some "deviant" group is thought to be a threat to key moral values and is stigmatized in consequence. Often the danger posed by the group is purely imaginary, and the real issue is a desire to create a zone of safety and security by defining the dominant group as good and "normal," the outsider groups as the bearer of a disgraceful tainted identity. Our debates today over gay marriage contain much of this muddled thinking, whatever else they also contain.

In general, a society based on the idea of equal human dignity must find ways to inhibit stigma and the aggression that are so often linked to the proclamation that "we" are the ones who are "normal." Such a society is difficult to achieve, because incompleteness is frightening, and grandiose fictions are comforting. As a patient of the psychoanalyst Donald W. Winnicott said to him, "The alarming thing about equality is that we are then both children, and the question is, where is father? We know where we are if one of us is the father."

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. But if we cannot fully achieve such a society, we can at least look to it as a paradigm (as Plato said of his ideal city), and make sure that our laws are the laws of that community and no other.