[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.
    --Genesis, 3:10

    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.[2][1] (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
    other motorists.

    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"
    and "equality"?

    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
    its praises.

    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. [4]Go
        back to the text.

            From The New Criterion Vol. 23, No. 1, September 2004

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