The Role of Emotions in the Rule of Law

But this I counsel you, my friends. Mistrust all in whom the impulse to punish is powerful.

-Friedrich Nietzsche, Thus Spake Zarathustra

I Sense in sensibility?

Martha Nussbaum's Hiding from Humanity: Shame, Disgust, and the Law is a learned and sensitive probing of fundamental human matters and their import - or, in some ways, lack of due import - for law in a liberal democratic society. The key thesis is that some emotions have a legitimately important place in the definition of crimes and in the determination of punishments but, equally and more importantly, that certain others, shame and disgust being the central exemplars, should have essentially no such place. The latter emotions, Nussbaum argues, express irrational tendencies, involving specious notions of contamination and futile and harmful impulses to deny our common human nature as mortal, embodied beings.

This ambitious book brings together and extends in new directions issues and arguments from the several areas of Nussbaum's already substantial body of work. There is, for example, the continued wrestling with Aristotelian and Stoic views of human nature and practical reason, which all along have been focal points of Nussbaum's philosophical research. The specific stepping-stone to the present book, though, is Nussbaum's richly systematic study Upheavals of Thought: The Intelligence of Emotions.¹ The subtitle of that book signals a major contention of this one, namely, that emotions constitute appraisals, not mere outbursts or moods. In Hiding from Humanity, the contention is further argued for but is treated as only part of the story about emotions. The additional and essential part, which has special relevance for law, is an account of certain specific emotions as expressing judgements of a far from reasonable sort. A third theme of Nussbaum's past projects that is taken up in the present book comes from her important contribution to feminism and theories of socio-economic development, notably in Women and Human Development: The Capabilities Approach.² Partly in collaboration with Nobel Prize-winning economist Amartya Sen, Nussbaum has advocated a non-utilitarian view of human needs and social goals by stressing certain basic human capacities that are universal and deserving of opportunities for fulfilment, including both the capacity to reason and the capacity to have emotions and form attachments to other persons.³ The concern with laws and conditions enabling personal development is what Hiding from Humanity comes round to at the end.

Beyond the momentum of Nussbaum's past preoccupations, the matter of this book is more immediately sparked by various recent cases, laws, and legislative proposals that involve emotions very controversially, either with reference to defining crimes or in relation to determining punishments. The issue of homosexuality offers one familiar example, with the (belated) securing of constitutional protection in the United States for homosexual relations,⁴ as well as a series of rulings and initiatives in the United States, Canada, and elsewhere in favour of same-sex marriage and also, of course, demands to fend off these changes with special legislation or extraordinary constitutional undertakings. As would be expected, intense emotions are appealed to in the associated arguments, typically but not only from the side of traditions resisting homosexual rights, wherein expressions of disgust at the alleged unnaturalness of homosexuality are common. In another context, Nussbaum notes, a reference to disgust or something similar inspired in the average person remains at the core of American obscenity law, as enunciated by the Supreme Court in 1973.⁵ In Canada, related notions - and, specifically, a reference to community standards of tolerance - were not wholly set aside but confusingly reaffirmed in the defining pornography case of R. v. Butler, even as it refocused criteria for what should be banned to address only depictions of sex involving violence and degradation.⁶ In the recent Labaye case, dealing with acts of indecency, the transition from a community standard of tolerance to a harm-based standard was effected definitively (and erroneously, according to two dissenting justices).⁷ As for shame or shaming, it is now increasingly common, in the United States at least, for sentences to require that...