The Passions of Law

Susan Bandes

• Publisher: NYU Press
• Year: 2000
• ISBN:
  9780814789698
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

The Passions of Law is the first anthology to treat the role that emotions play, don't play, and ought to play in the practice and conception of law and justice. Lying at the intersection of law, psychology, and philosophy, this emergent field of law scholarship raises some of the most profound and interesting questions at the heart of jurisprudence. For example, what role do emotions ranging from disgust to compassion play in the decision-making processes of judges, lawyers, juries, and clients? What emotions belong in which legal contexts? Is there a hierarchy of emotions, and, if so, through what sources do we identify it? To what extent are emotions subject to change or tutelage? How can we evaluate the role of emotion in such disparate contexts as death sentencing, laws about same sex marriage, hate crime legislation, punitive damages or shaming penalties?

Consisting of original essays by leading scholars of law, theology, political science, and philosophy, The Passions of Law contributes to ongoing efforts to humanize law and reveals how this previously unacknowledged aspect of decision-making exerts a much greater impact on justice and the practice of law than most tend, or like, to think.

Learn more about Susan Bandes

Part I
Disgust and Shame

Chapter One
“Secret Sewers of Vice” Disgust, Bodies, and the Law

Martha C. Nussbaum¹

The Professor of Gynaecology: He began his course of lectures as follows: Gentlemen, woman is an animal that micturates once a day, defecates once a week, menstruates once a month, parturates once a year and copulates whenever she has the opportunity. I thought it a prettily-balanced sentence.

W. Somerset Maugham, A Writer’s Notebook

Was there any form of filth or profligacy, particularly in cultural life, without at least one Jew involved in it? If you cut even cautiously into such an abscess, you found, like a maggot in a rotting body, often dazzled by the sudden light—a kike!

Adolf Hitler, Mein Kampf

If a man had been able to say to you when you were young and in love: “An’ if tha shits an’ if tha pisses, I’m glad, I shouldna want a woman who couldna shit nor piss . . .” surely it would have helped to keep your heart warm.

D. H. Lawrence to Ottoline Morrell, quoting from
Lady Chatterley’s Lover

I. Disgust and Lawmaking

Disgust is a powerful emotion in the lives of most human beings.² It shapes our intimacies and provides much of the structure of our daily routine, as we 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. In many ways our social relations, too, are structured by the disgusting and our multifarious attempts to ward it off. Ways of dealing with repulsive animal substances such as feces, corpses, and spoiled food are pervasive sources of social custom. And most societies teach the avoidance of certain groups of people as physically disgusting, bearers of a contamination that the healthy element of society must keep at bay.

Disgust also plays a powerful role in the law. It figures, first, as the primary or even the sole justification for making some acts illegal. Thus, sodomy laws have frequently been defended by a simple appeal to the disgust that right-thinking people allegedly feel at the thought of such acts. The judge at Oscar Wilde’s trial said that he would prefer not to describe “the sentiments which must rise to the breast of every man of honour who has heard the details of these two terrible trials,” but his violent repudiation of the defendants made his disgust amply evident.³ Lord Devlin famously argued that such social disgust was a strong reason to favor the prohibition of an act, even if it caused no harm to others; he applied his conclusion explicitly to the prohibition of consenting homosexual acts.⁴ In his recent work on disgust, legal theorist William Miller, while not supporting Devlin’s concrete policy recommendations, gives support to his general line by arguing that the degree of civilization in a society may properly be measured by the barriers it has managed to place between itself and the disgusting.⁵ Legal barriers, in such a view, could easily be seen as agents of the civilizing process.

One area of the law in which judgments of the disgusting are unequivocally central is the current law of obscenity: the disgust of an average member of society, applying contemporary community standards, has typically been taken to be a crucial element in the definition of the obscene. The Supreme Court has noted that the etymology of the word “obscene” contains the Latin word for filth, caenum, and that two prominent dictionaries include the term “disgusting” in their definition of the term.⁶

The disgust of society also figures in legal arguments about categories of acts that are already considered illegal on other grounds. The disgust of a criminal for a homosexual victim may be seen as a mitigating factor in homicide.⁷ The disgust of judge or jury has frequently been regarded as relevant to the assessment of a homicide where potentially aggravating factors are under consideration.

On one view of these matters, the emotion of disgust is highly relevant to law and a valuable part of the legal process. For Devlin, society cannot defend itself without making law in response to its members’ responses of disgust, and every society has the right to preserve itself. Every society, therefore, is entitled to translate the disgust-reactions of its members into law. For Miller, a society’s hatred of vice and impropriety necessarily involves disgust, and cannot be sustained without disgust. Disgust “marks out moral matters for which we can have no compromise.”⁸ It should follow that for Miller disgust plays a legitimate role in the criminal law, and perhaps in other areas of law as well. For Dan M. Kahan, discussing Miller’s book, disgust ought to be permitted to play a larger role in the criminal law than most legal theorists currently want it to play. Disgust is “brazenly and uncompromisingly judgmental,”⁹ indeed “necess[ary] . . . for perceiving and motivating opposition to cruelty.”¹⁰

These are plausible theses, which should not be easily dismissed. Nor should they be dismissed by a blanket condemnation of all appeals to emotion in law, or by the strong and misleading contrast between emotion and reason that we all too frequently hear when legal theorists discuss appeals to sympathy, or indignation, or overwhelming fear.¹¹ If, as seems plausible, all these emotions involve complex evaluative cognitions,¹² then they cannot be called “irrational” as a class. Instead, we must evaluate the cognitions they embody, as we would for any class of beliefs, asking how reliable they are likely to be given their specific subject matter, their typical process of formation, and so forth. There seem to be no reasons to think that the cognitions involved in emotion are generally and ubiquitously unreliable.¹³

It is not even clear that we can say of any entire emotion-type that it is totally unreliable in the sense that it always gives bad guidance in matters of importance. The questions we are most likely to ask about fear, anger, grief, and sympathy are: do they have the right view of their object or not? Does the emotional person correctly assess the situation and the values contained in it, or not? Are her emotions those of a reasonable person, or not? And these questions will usually be asked well only in the concrete. Anger as a whole is neither reliable nor unreliable, reasonable or unreasonable; it is only the specific anger of a specific person at a specific object that can coherently be deemed unreasonable.

We may sometimes judge, however, that a particular emotion-type is always suspect or problematic, in need of special scrutiny, given its likely aetiology, its specific cognitive content, and its general role in the economy of human life. One might argue, for example, that envy is always suspect, in the sense that it is likely to be connected to social hierarchy and the unwillingness to accept the equal worth of people; or that jealousy is always suspect, given its links to the desire for possession and control. This is the type of argument I shall be making about disgust. I shall argue that the specific cognitive content of disgust makes it always of dubious reliability in social life, but especially in the life of the law. Because disgust embodies a shrinking from contamination that is associated with the human desire to be non-animal, it is more than likely to be hooked up with various forms of shady social practice, in which the discomfort people feel over the fact of having an animal body is projected outwards onto vulnerable people and groups. These reactions are irrational, in the normative sense, both because they embody an aspiration to be a kind of being that one is not, and because, in the process of pursuing that aspiration, they target others for gross harms.

Where law is concerned, it is especially important that a pluralistic democratic society protect itself against such projection-reactions, which have been at the root of gross evils throughout history, prominently including misogyny, antisemitism, and loathing of homosexuals. Thus while the law may rightly admit the relevance of indignation, as a moral response appropriate to good citizens and based upon reasons that can be publicly shared, it will do well to cast disgust onto the garbage heap where it would like to cast so many of us.

In specific terms, I shall argue that the disgust of a defendant for his alleged victim is never relevant evidence in a criminal trial; that disgust is an utter red herring in the law of pornography, occluding the salient issues of harm and even colluding in the perpetuation of harms; disgust is never a good reason to make a practice (for example sodomy) illegal; that even where one homicide seems worse than another because it is unusually disgusting, this disgust-reaction should itself be distrusted, as a device we employ to deny our own capacities for evil.

II. The Cognitive Content of Disgust

Disgust appears to be an especially visceral emotion. It involves strong bodily reactions to stimuli that often have marked bodily characteristics. Its classic expression is vomiting; its classic stimulants are vile odors and other objects whose very appearance seems loathsome.¹⁴ Nonetheless, important research by Paul Rozin¹⁵ has made it evident that disgust has a complex cognitive content, which focuses on the idea of incorporation of a contaminant. His core definition of disgust is “[r]evulsion at the prospect of (oral) incorporation of an offensive object. The offensive objects are contaminants; that is, if they even briefly contact an acceptable food, they tend to render that food unacceptable.”

Rozin does not dispute that disgust may well have an underlying evolutionary basis; but he shows that it is distinct from both distaste, a negative reaction motivated by sensory factors, and (a sense of) danger, a rejection motivated by anticipated harmful consequences. Disgust is not simple distaste, because 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 repellant and unpleasant. “It is the subject’s conception of the object, rather than the sensory properties of the object, that primarily determines the hedonic value.”¹⁶ In general, disgust is motivated primarily by ideational factors: the nature or origin of the item and its social history (e.g. who touched it). Even if subjects are convinced that ground dried cockroach tastes like sugar, they still refuse to eat it, or say it tastes revolting if they do.

Nor is disgust the same as (perceived) danger. Dangerous items (e.g. poisonous mushrooms) are tolerated in the environment, so long as they will not be ingested; disgusting items are not so tolerated. 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 object even to swallowing a cockroach inside an indigestible plastic capsule that would emerge undigested in the subjects’ feces.

Disgust concerns the borders of the body: it focuses on the prospect that a problematic substance may be incorporated into the self. For many items and many people, the mouth is an especially charged border. The disgusting has to be seen as alien: one’s own bodily products are not viewed as disgusting so long as they are inside one’s own body, although they become disgusting after they leave it. Most people are disgusted by drinking from a glass into which they themselves have spit, although they are not sensitive to saliva in their own mouths. The ideational content of disgust is that the self will become base or contaminated by ingestion of the substance that is viewed as offensive. Several experiments done by Rozin and colleagues indicate that the idea involved is that “you are what you eat”: if you ingest what is base, this debases you.

The objects of disgust range widely, but Rozin has confirmed experimentally that “all disgust objects are animals or animal products,” or objects that have had contact with animals or animal products—a major source being contact with “people who are disliked or viewed as unsavory.” It is difficult to explain why plant products (apart from decayed and moldy specimens) are not disgusting,¹⁷ but research suggests that the motivating ideas have to do with our interest in policing the boundary between ourselves and non-human animals, or our own animality. Hence...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Dedication
• Contents
• Acknowledgments
• Contributors
• Introduction
• Part I Disgust and Shame
• Part II Remorse and the Desire for Revenge
• Part III Love, Forgiveness, and Cowardice
• Part IV The Passion for Justice
• Index