[Paleopsych] New Criterion: (Mrs. Nut Tree) Does shame have a future? by Roger Kimball
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Does shame have a future? by Roger Kimball
No society can do without intolerance, indignation, and disgust.
--Patrick Devlin, The Enforcement of Morals
[A] liberal society has particular reasons to inhibit shame and
protect its citizens from shaming.
--Martha C. Nussbaum, Hiding from Humanity
I heard thy voice in the garden, and I was afraid, because I was
naked; and I hid myself.
In Masaccio's great fresco depicting the expulsion of Adam and Eve
from the Garden of Eden (ca. 1426), the Angel of the Lord hovers,
sword in hand, above and behind the First Couple. Adam strides
forward, naked, his face buried in his hands. Eve, however, a look of
wailing misery on her upturned face, covers her breasts and privates
as she walks. She is ashamed of her nakedness and strives to conceal
I thought of Masaccio when I stumbled upon Martha Nussbaum's essay
"Danger to Human Dignity: The Revival of Disgust and Shame in the
Law," which appeared last month in The Chronicle of Higher Education.
How Nussbaum would disapprove of Eve!, I thought. For Martha
Nussbaum--a classicist who is currently the Ernst Freund Distinguished
Service Professor of Law and Ethics in the Philosophy Department, Law
School, and Divinity School at the University of Chicago--does not
approve of shame. She is not too keen about disgust, either. Both
emotions, she thinks, impede "the moral progress of society." And here
we have Eve, ashamed of her body, modestly shielding her sex from
view: how very unprogressive.
"Danger to Human Dignity" is an oddly vertiginous work, as is the new
book from which it is drawn, Hiding from Humanity: Disgust, Shame, and
the Law. (It is appropriate that the book should feature on its
cover a fleshy, unpleasant nude by Otto Dix: how different it
is--morally as well as aesthetically--from Masaccio's Eve!) Professor
Nussbaum begins "Danger to Human Dignity" with the following
show-stopper: "The law, most of us would agree, should be society's
protection against prejudice." Really? I thought "most of us would
agree" that the law ought to be society's protection against crime.
But perhaps Professor Nussbaum thinks that prejudice is itself a
crime--though surely not all prejudice. Edmund Burke said that
prejudice "renders a man's virtue his habit." He meant that if we have
a predisposition--a prejudice--toward the right things, they more
easily become second nature. Surely Professor Nussbaum would not wish
the law to protect us from that sort of prejudice. And it must be said
that she herself is clearly prejudiced against anything she labels
"conservative." I doubt that she believes that the law should be
society's protection against prejudice directed at conservatives.
Well, let's leave prejudice to one side. The ostensible burden of both
these works, the essay and the book, is to warn readers about the
"remarkable revival" of shame and disgust in our society, especially
as they impinge upon the law. Now when I read that, I thought
"Nussbaum, on top of everything else, must be a student of Stephen
Potter." For anyone as intelligent as she could not really believe
that shame and disgust are enjoying a renaissance in our culture. She
must be employing a variation of a gambit Potter describes in his book
Lifemanship, "Going One Better." It works like this. First you find
out the quality for which an author is most famous, then you blame him
for not having enough of it. An example from Lifemanship: "The one
thing that was lacking, of course, from D. H. Lawrence's novels, was
the consciousness of sexual relationship, the male and female element
in life." Look around at our society: flip on the television; saunter
down to your local newsstand; visit a local theater or museum; inspect
the nose rings, the tongue or eyebrow or nipple studs that are so
popular with the young and not-so-young today. One thing indisputably
missing in our society is anything like a traditional sense of shame
or disgust. So how clever of Professor Nussbaum to devote an entire
book to the malignant presence of something that has all but
Professor Nussbaum is particularly exercised by the sentences, handed
down by various courts, which involve some public declaration of the
perpetrator's wrongdoing. A child molester, for example, is required
to post a sign on his property warning children to stay away. Another
chap, convicted of larceny, is required to wear a shirt with the
advice: "I am on felony probation for theft." A drunk driver is made
to sport a bumper sticker advertising the fact of his infraction to
Professor Nussbaum approvingly quotes a spokesman from the American
Civil Liberties Union who angrily objects to such punishments:
"Gratuitous humiliation of the individual serves no social purpose at
all ... [a]nd there's been no research to suggest it's been effective
in reducing crime." To which one might reply that the humiliation was
not "gratuitous" but, on the contrary, was meted out in response to a
criminal violation. And as for the "research," it doesn't take much to
tell you that, having been duly put on notice, the neighbors of that
convicted child molester will keep a wary eye out for him, thus
reducing the chance of a repeat performance. Likewise, the shopkeeper
who espies the banner-wearing thief enter his store is sure to watch
the till, once again reducing the chance that the crime will be
But Professor Nussbaum doesn't confine herself to mere pragmatic
issues, such as whether a given policy in fact reduces crime. Her
objection is more fundamental. "Shaming penalties," she notes,
"encourage the stigmatization of offenders, asking us to view them as
shameful." Er, yes: they would have that effect, wouldn't they? Hiding
from Humanity is full of such near tautologies. You do something bad,
something, in fact, that is shameful. The legal punishment calls
attention to your bad, your shameful, action, partly in order to
encourage you to reflect on your fault, partly to alert others to it.
Is that a bad thing?
Professor Nussbaum brandishes the verb "stigmatize" early and often in
this book. She doesn't approve of stigmatizing people. Originally, a
stigma was a mark burned into the skin of a criminal or slave. It has
acquired an additional meaning: "A mark or token of infamy, disgrace,
or reproach," as my dictionary puts it. Professor Nussbaum several
times raises the specter of unfairly stigmatizing innocent people or
groups of people. She quotes A. Hitler on the Jews, for example. As
you'd expect, he said some very unpleasant things that were definitely
intended to stigmatize the Jewish people. But how about Joe, the
convicted child molester, who moves in next door? A thoughtful judge
has ordered him to post a sign on his front lawn advertising his
crime. That sign is indeed "A mark or token of infamy, disgrace, or
reproach," and you can bet that it's one for which the mothers in the
neighborhood are grateful. Which brings us to something that gets lost
in Professor Nussbaum's discussion: the distinction between unfairly
stigmatizing an innocent person or group of people and stigmatizing
someone or some group because they deserve a mark or token of infamy,
disgrace, or reproach. Of course one wishes to avoid the former. Does
that mean that we should in principle forswear the latter?
In any event, Professor Nussbaum has a deeper objection to penalties
that shame a criminal. She thinks that calling attention to Joe's
penchant for sexually molesting little girls or boys is incompatible
with the ideals of "human dignity and the equal worth of persons."
That's another phrase Professor Nussbaum deploys regularly. She tells
us, toward the beginning of her book, that her guiding motivation is
to "construct a public myth of equal humanity, to substitute for other
pernicious myths that have long guided us." That sounds nice. Why not
toss out all those "pernicious myths" that have guided humanity until
fifteen minutes ago and sign on to the one that says "human dignity"
Professor Nussbaum speaks of the "equal worth of persons." What do you
suppose she means? In America, all citizens are meant to enjoy
equality before the law. The figure of justice is often portrayed
blindfolded because the scales she carries are meant to operate
dispassionately, without the ballast of interest or parti-pris. That
is one sort of equality. Then there is what the philosopher Harvey
Mansfield called "the self-evident half-truth that all men are created
equal." It's only a half-truth because, except for the special case of
our status as legal actors, nothing could be more obvious than the
gross inequality of men. As the journalist William Henry put it in his
book In Defense of Elitism (1994),
the simple fact [is] that some people are better than
others--smarter, harder working, more learned, more productive,
harder to replace. Some ideas are better than others, some values
more enduring, some works of art more universal. Some cultures,
though we dare not say it, are more accomplished than others and
therefore more worthy of study.
Something similar can be said about "human dignity." Professor
Nussbaum finds a "deep tension" between the view that "law should
shame malefactors and the view that law should protect citizens from
insults to their dignity." Let's leave the question of whether the law
really should concern itself with "insults" to a citizen's dignity.
Mightn't it be argued that by calling attention to a criminal
violation of human dignity the law reinforces the ideal of human
In any event, all these cases concern the outer scaffolding of
Professor Nussbaum's argument. The inner core of her book is part of a
revisionist morality, the emotional weather of which is summed up in a
section that appears towards the end of her book: "The Case Against
Disgust and Shame."
As Professor Nussbaum acknowledges, shame and its more visceral
cousin, disgust, are semantically amphibious emotions. They are moral
as well as physical creatures, depending as much upon an idea of the
good as upon physical revulsion. Shame is deeply bound up with
modesty, another moral sentiment that inscribes itself in immediate
physical reaction. Similarly, disgust is the body's fire alarm for the
noxious, but not merely the physically noxious. As William Ian Miller
puts it in his book The Anatomy of Disgust (1997), disgust, although
inculcated in toddlerhood, is "above all ... a moral and a social
sentiment." Disgust highlights the good by violently excluding its
opposite. Consequently, Miller argues, "contempt and disgust have
their necessary role to play in a good, but not perfect, social
order." Utopia, having excluded evil, would have no call for disgust.
As Miller notes, these observations are hardly new: "The entire Latin
Christian discourse of sin depended on the conceptualization of sin
and hell as raising excremental stenches and loathsome prospects."
Professor Nussbaum wants us to get beyond all this. She acknowledges
that "the person who is utterly shame-free is not a good friend,
lover, or citizen," but she wants to privatize shame, as it were, to
disenfranchise it from any role in public life. Similarly, Professor
Nussbaum acknowledges that disgust may have played "a valuable role in
our evolution"--making us recoil from various toxic elements in our
environment; she even admits that it may continue to be a valuable
guide in daily life. But because the "thought-content" of disgust is
"typically unreasonable, embodying magical ideas of contamination, and
impossible aspirations to purity, immortality, and nonanimality,"
disgust should "never be the primary basis for rendering an act
criminal, and should not play either an aggravating or a mitigating
role in the criminal law where it currently does."
Another way of putting this is to say that Professor Nussbaum wishes
completely to emancipate law from the idea of sin. From a traditional
point of view, of course, the law is seen as being rooted in a moral
vision, which includes a recognition of sin. As the British jurist
Patrick Devlin noted in The Enforcement of Morals (1965), "the
complete separation of crime from sin ... would not be good for the
moral law and might be disastrous for the criminal." Why? Because
without the idea of sin, moral life would be an empty calculus of pain
and pleasure. "What makes a society of any sort," Lord Devlin noted,
"is a community of ideas, not only political ideas but also ideas
about the way its members should behave and govern their lives; these
latter ideas are its morals."
Sin--like disgust, like shame--is such an irrational idea, so hard to
get hold of "theoretically." Professor Nussbaum finds disgust
"perplexing in theory": "the theoretical literature," she says,
reveals "considerable debate about whether shame and disgust ought to
play the roles they currently play" in the moral and legal economy of
life. ("That's all very well in practice," says the economist in the
old joke, "but how does it work out in theory?") "To appeal to
disgust," Professor Nussbaum concludes, "seems to be just to say `I
don't like that,' and stamp one's foot. No reasons are advanced that
would make debate about such laws a real piece of public persuasion."
Professor Nussbaum is certainly right that feelings of disgust, like
feelings of shame, are extra- if not irrational: we don't argue
ourselves into disgust or shame: we feel it immediately. Professor
Nussbaum is deeply suspicious of those feelings. She sharply
criticizes the physician-philosopher Leon Kass for advocating the
"wisdom of repugnance"--the wisdom of disgust and revulsion--because
our disgust might be misplaced. She is even more severe about Lord
Devlin, who argued that "for the difficult choice between a number of
rational conclusions the ordinary man has to rely upon a `feeling' for
the right answer. Reasoning will get him nowhere."
A good conservative, Lord Devlin was a minimalist when it came to the
law's province. "In any new matter of morals," he argued, "the law
should be slow to act." Advocating "toleration of the maximum
individual freedom that is consistent with the integrity of society,"
he noted that "the law is concerned with the minimum and not with the
maximum": "the criminal law is not a statement of how people ought to
behave; it is a statement of what will happen to them if they do not
behave." At the same time, Lord Devlin recognized that "not everything
is to be tolerated. No society can do without intolerance,
indignation, and disgust."
Every moral judgement, unless it claims a divine source, is simply
a feeling that no right-minded man could behave in any other way
without admitting he was wrong. It is the power of common sense and
not the power of reason that is behind the judgements of society.
Professor Nussbaum is very impatient with the "power of common sense."
It is so often insufficiently enlightened, insufficiently progressive,
insufficiently in agreement with the opinions of people like Martha
Nussbaum. Lord Devlin appealed to the moral feeling of the ordinary
man, "the man in the Clapham omnibus." Professor Nussbaum doubts
"whether the disgust of the `average' man would ever be a reliable
test for what might be legally regulable."
So maybe many of the things that the inherited moral wisdom of
millennia have taught us to find disgusting--and to which society has
responded with various legal prohibitions--need to be reevaluated?
What do you think? Take necrophilia. Professor Nussbaum finds this a
thorny problem. Who, after all, is harmed in the transaction?
Professor Nussbaum wonders "whether necrophilia ought, in fact, to be
illegal." She acknowledges that there is "something unpleasant" about
a person who rapes a corpse, but it is "unclear" to her whether such
conduct should be "criminal." Possibly, since a corpse is generally
the property of its family, there should be "some criminal penalties"
where "property violations" are involved, but otherwise not.
Professor Nussbaum describes her intellectual-political pedigree as
"less Millian than Whitmanesque." That may be right. I think, for
example, of "Song of Myself," which has many Nussbaumian touches.
Nussbaum: "[W]e wash our bodies, seek privacy for urination and
defecation, cleanse ourselves of offending odors with toothbrush and
mouthwash, sniff our armpits when nobody is looking, check in the
mirror to make sure that no conspicuous snot is caught in our
nose-hairs." Whitman: "The scent of these arm-pits is aroma finer than
prayer,/ This head is more than churches or bibles or creeds./ ... I
dote on myself ... . there is that lot of me, and all so luscious
But if there is a lot of Whitman blowing through Professor Nussbaum's
book, there is also a good deal of Mill. I am thinking especially of
the Mill of On Liberty, the Mill who advocated "new and original
experiments in living" and argued that the sole justification society
had for interfering with an individual "in the way of compulsion and
control"--whether by "physical force in the form of legal penalties or
the moral coercion of public opinion"--was "self-protection." If the
individual is not harming others, then (says Mill) we have to leave
him alone: "His own good, either physical or moral, is not a
sufficient warrant" for interference. Mill's libertarian doctrine is
our modern gospel. Professor Nussbaum is part of a large choir singing
But the popularity of Mill's doctrine says nothing about its cogency.
As James Fitzjames Stephen pointed out in Liberty, Equality,
Fraternity (1873), Mill's teaching would "condemn every existing
system of morals."
Strenuously preach and rigorously practise the doctrine that our
neighbor's private character is nothing to us, and the number of
unfavorable judgments formed, and therefore the number of
inconveniences inflicted by them can be reduced as much as we
please, and the province of liberty can be enlarged in
corresponding ratio. Does any reasonable man wish for this? Could
anyone desire gross licentiousness, monstrous extravagance,
ridiculous vanity, or the like, to be unnoticed, or, being known,
to inflict no inconveniences which can possibly be avoided?
As Stephen dryly observes, "the custom of looking upon certain courses
of conduct with aversion is the essence of morality." But it is part
of Professor Nussbaum's brief--as, in a way, it was of Mill's--to
encourage us to dispense with moral aversion, of which shame and
disgust are prominent allotropes.
One of the oddest features of Hiding from Humanity is Professor
Nussbaum's recurring argument that the emotions of shame and disgust
encourage us to ignore or discount our mortality, our incompleteness,
our animality. No doubt Professor Nussbaum has managed to embrace her
own animality without the benefit of shame or disgust. But for most of
us, the emotions of shame and disgust are vivid reminders of our
status as imperfect creatures, fragile, animal, and therefore mortal.
This is something embodied the world over in the idea of taboo, a
concept with deep connections to the ideas of shame and disgust. These
are insights we arrive at not by ratiocination but by feeling. As the
philosopher Leszek Kolakowski writes, "We do not assent to our moral
beliefs by admitting `this is true,' but by feeling guilty if we fail
to comply with them." What we are dealing with, he points out, is not
an intellectual performance but "an act of questioning one's own
status in the cosmic order, ... an anxiety following a transgression
not of a law but of a taboo." Professor Nussbaum wants us to "discard
the grandiose demands for omnipotence and completeness that have been
at the heart of so much human misery." Good idea! But shame and
disgust are accomplices, not impediments, to that attack on hubris.
Hiding from Humanity is not only a polemic against the emotions of
shame and disgust. It is also a political position paper. Professor
Nussbaum is such a ferocious opponent of shame and disgust because she
is such a passionate proponent of many things that shame and disgust
recoil from. It is ironical that in a book which is partly an attack
on "the grandiose" Professor Nussbaum should harbor such a grandiose
agenda for social change. From public nudity to poverty, the global
AIDS crisis, and homosexual marriage, Professor Nussbaum has embraced
the entire menu of politically correct causes. Poverty, she says, is
"one of the most stigmatized life-conditions, in all societies."
Therefore it must be removed. And not just poverty: we must also
supply items that are "part of the social definition of a decent
living-standard," e.g., "a personal computer." AIDS is "a major cause
of stigmatized lives." Something must be done!
Professor Nussbaum is one of those intellectuals whose intoxication
with the thought of her own virtue is equalled only by her contempt
for the opinions of the ordinary people whose lives she pretends to
anguish over. Even without the inducement of the arguments she
advances, her conviction of moral superiority would have led her to
jettison shame as an impediment to "the moral progress of society."
One saw this at work a decade ago when she was called upon to give
expert testimony in Evans v. Romer, which challenged a state
constitutional amendment in Colorado that prohibited any official body
from adopting a law or policy that grants homosexuals "minority
status, quota preferences, protected status or claim of
discrimination." As the philosopher John Finnis showed in an article
for Academic Questions, Professor Nussbaum, by deliberately
misrepresenting the meaning of Greek words and the work of other
scholars, engaged in "wholesale abuse of her scholarly authority and
attainments." Among other things, she went back to a
nineteenth-century edition of the standard Greek-English lexicon
because it did not include a morally opprobrious definition of a
contested Greek term. She took the trouble to white-out the name of a
contributor to the later edition of the lexicon that the lawyers,
unaware of her subterfuge, had supplied in the footnotes of a court
document. Challenged about this, she claimed that she was simply
correcting a clerical error because the earlier edition was "more
reliable on authors of the classical period" than later editions. I
asked a former Regius Professor of Greek about that and it took him
about five minutes to stop laughing. It's clear that Professor
Nussbaum doesn't believe it either, since it has been shown that her
own work regularly relies on later editions.
It is a curious quirk of language that "shameless" entails
"shameful"--that is, being without shame is something to be ashamed
of. This is not, I suspect, something that much troubles the Ernst
Freund Distinguished Service Professor of Law and Ethics in the
Philosophy Department, Law School, and Divinity School at the
University of Chicago. But the rest of us might regard a shameless
life the real hiding from humanity.
Roger Kimball's latest book is The Rape of the Masters: How Political
Correctness Sabotages Art (Encounter Books).
1. Hiding from Humanity: Disgust, Shame, and the Law, by Martha C.
Nussbaum; Princeton University Press, 413 pages, $29.95. Go
back to the text.
From The New Criterion Vol. 23, No. 1, September 2004
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