The Passions of Law

Chapter Two. The Progressive Appropriation of Disgust

 Disgust is regarded as a paradigmatically illiberal sentiment.Mercy,because of its perception of individuals’vulnerability to forces outside their control, is unambiguously congenial to liberal values such as dignity and autonomy. Indignation and fear are at least potentially redeemable in liberal terms because they take as their objects external harms or threats to the person.Even guilt (if not shame) is thought to have a place in a liberal jurisprudence to the extent that individuals are educated to experience it when they interfere (or contemplate interfering) with the rights of others. But disgust, which embodies only our aversions to alien values and ways of life, is thought to furnish no legitimate ground for coercion in a state dedicated to liberal principles. Indeed, to date, the most important accounts of disgust in law are to be found in socially conservative defenses of public morals offenses and in liberal critiques of the same.1 I am unsatisfied with this alignment. My aim in this essay is to redeem disgust in the eyes of those who value equality, solidarity, and other progressive values. It would certainly be a mistake—a horrible one—to accept the guidance of disgust uncritically. But it would be just as big an error to discount it in all contexts. There are indeed situations in which properly directed disgust is indispensable to a morally accurate perception of what’s at stake in the law. Even more important, disavowing even properly directed disgust cedes the powerful rhetorical capital of that sentiment to political reactionaries, who’ll happily make use of improperly directed disgust to entrench illiberal regimes. Chapter Two The Progressive Appropriation of Disgust Dan M Kahan   The conception of disgust that I mean to defend is the one identified by William Miller in his masterful book, The Anatomy of Disgust.2 For Miller, disgust is not an instinctive and unthinking aversion but rather a thoughtpervaded evaluative sentiment (pp. –). It embodies the appraisal that its object is low and contaminating, and the judgment that we must insulate ourselves from it lest it compromise our own status (pp. –). Disgust, according to Miller, gets its distinctive content from hierarchic social norms, which are themselves reinforced by our feelings and expressions of disgust (pp. , , , , ). Although Miller himself doesn’t address criminal law in any detail, I believe his book supplies a critical remedy to the inattention criminal law theorists have shown this sensibility. That’s the nerve of an essay published elsewhere, in which I use Miller’s account to illuminate the influence of disgust across a wide array of institutions and doctrines—from capital punishment , to shaming penalties, to hate crimes, to voluntary manslaughter.3 In this essay, however, I will focus on only two of Miller’s claims, which I believe vindicate the normative value of disgust in criminal law.4 The first can be called the moral indispensability thesis. According to Miller, disgust is an indispensable member of our moral vocabulary. “It signals seriousness , commitment, indisputability, presentness, and reality” (p. ); “it marks out moral matters for which we can have no compromise” (p. ), “harms that sicken us in the telling, things for which there could be no plausible claim of right”(p. ). No other moral sentiment is up to the task of condemning such singular abominations as “rape, child abuse, torture, genocide, predatory murder and maiming”; bare indignation, for example , is too self-centered, too obsessed with “setting the balance right” for perceived slights to one’s own person, to motivate the impassioned desire to punish such wrongs even when visited upon strangers (pp. , , ). Indeed, we cannot “put cruelty first among vices,” writes Miller drawing on Judith Shklar,5 unless we treat properly directed disgust as one of our virtues (p. ). The second claim can be called the conservation thesis.Although the objects of disgust vary across societies and communities, all societies inevitably make use of disgust to inform their judgments of high and low, worthy and unworthy. This is so not only for aristocratic regimes, in which distinctions of class are uncontested, but also for egalitarian democratic ones, which are “based less on mutual respect for persons than on a ready  d a n m . k a h a n availability of certain styles of contempt to the low that once were the prerogatives of the high” (p. ). The conservation of disgust across distinct and evolving modes of social organization explains why groups that are low...