Liberalism has been dogged by the suspicion that its commitment to tolerance is essentially duplicitous. The goal of respecting each person’s equal right to choose for herself how to live is surely definitive of a liberal conception of the good life for human beings; but if that is so, it requires a kind of neutrality from the state which flows from a belief in the superiority of that liberal conception. In short, advocating such neutrality gives expression to a partisan moral stance. Liberal tolerance cannot but be grounded in intolerance of its rivals.
This suspicion has never gone away, but neither has it proved easy to articulate in a way that is both clear and convincing. After all, if tolerance really is definitive of the liberal view of politics, how could we reasonably expect a liberal to be neutral between tolerance and intolerance? No conception of a just society can be entirely devoid of moral substance; and if we see social justice as a matter of respecting one another’s autonomy, we must reject visions of society that fail to embody such respect. The crucial distinction to draw, it might be said, is between those conceptions of politics that defend the individual’s freedom to choose and those that permit the state to act in ways that imply that only certain choices are worthy of respect. The latter approach would, for example, allow a confessional politics in which legal restrictions reflected the values of a particular religion, and so contradicted other values (religious and secular). So it does not seem misleading to describe the former approach as committed to neutrality between rival moral visions in a way that the latter is not.
According to the leading liberal political theorist of the postwar period, however, matters cannot be settled quite so simply; even the distinction I have just made fails to dispel the suspicion of liberal partiality. John Rawls’s reputation is built on his monumental A Theory of Justice, published in 1971. But in later years, he not only refined the details of his account of justice as fairness; he also reconstructed its mode of presentation so that it might illuminate and overcome the tension he came to see between liberal claims to neutrality and their theoretical grounding.
For the later Rawls, it is obvious that contemporary liberal democracies exist in a condition of reasonable pluralism: many rival comprehensive visions of the good life have established themselves, and each has a claim to be taken seriously. By this Rawls means that, while one might disagree with the adherents of rival conceptions, one cannot legitimately view their choices as irrational. Some may have misunderstood the facts or committed logical fallacies; but such moral choices, concerning how to conduct our lives as a whole, all face what he calls the burdens of judgment. The relevant evidence is complex and conflicting, and the weight to be attached to each element of it hard to determine; our concepts are vague and prone to throw up hard cases; and our judgments are imponderably but decisively influenced by the whole course of our individual moral experience. Even perfect rationality cannot eliminate disagreements generated by these factors. Hence, we must acknowledge that – with respect to such choices – others in society might reasonably disagree with us.
This reinforces the liberal case for respecting the right of individuals to make such choices as they, and not the state, see fit; but it also raises a deep problem. For comprehensive liberal visions of the good – those which make individual autonomy the linchpin of a complete account of how one’s life as a whole should be conducted – are just one variety among a range of equally reasonable moral conceptions. Hence, if our liberal political vision is grounded in such a comprehensive liberal morality, it will invoke convictions with which our fellow citizens might reasonably disagree. Our way of justifying respect for the freedom of all would then itself embody a failure to respect their freedom. It would be an intolerant defence of political toleration.
Rawls’s solution to this difficulty is to distinguish comprehensive conceptions of the good from purely political ones. The latter apply only to the basic political, social and economic structures of society (not to the procedures of universities, churches or golf clubs), and they are constructed solely from concepts and values available in the public political culture. Such materials are not the subject of reasonable disagreement; on Rawls’s view, they are acceptable to any reasonable comprehensive conception – to anyone who acknowledges the burdens of judgment, and views society as a fair system of co-operation. That vision of the political community might be nested within a variety of rival comprehensive moral conceptions, but it forms a free-standing view of politics on which they can all agree, and which can be articulated and defended without going beyond a concern with what is of value to the individual considered solely as a citizen (the bearer of political rights and responsibilities). For Rawls, only a purely political liberalism of this kind can honestly avoid the charge of subverting its defining claim to neutrality.
Martha Nussbaum’s new book, which analyses how far responses of shame and disgust should form the basis of lawmaking, explicitly presents itself as furthering this kind of liberal project; but she also brings to it a range of other concerns from her previous work. To begin with, Nussbaum is a longstanding advocate of the view that emotions are not essentially opposed to reason, but rather have an inherently cognitive aspect or function. Take fear: it typically has an object, and it embodies a particular understanding of that object (as threatening harm). Hence it involves a complex of beliefs without which it would not be the emotion it is, and it can usually be assessed as more or less reasonable (as a response to the situation at hand). Accordingly, Nussbaum cannot issue a general proscription of emotion-based illiberal lawmaking on the grounds that shame and disgust are entirely unthinking forces. She is also interested in the ways in which literature and psychoanalysis can contribute to our philosophical understanding of the lives of individuals in society. Thus the work of such figures as Lucretius, Walt Whitman and D.W. Winnicott inform her attempt to understand the opportunities and dangers of legislating in ways that draw on responses of shame and disgust, by shaping her sense of the cognitive content – and thus the morally emancipatory or progressive potential – of such forms of openness to reality.
From this perspective, disgust appears as an overwhelmingly pernicious basis for moral and political understanding. It is rooted in strong bodily reactions to stimuli with markedly bodily characteristics (vile odours, rotting fruit and flesh), and its classic expression is vomiting. Citing contemporary psychological research, Nussbaum claims that it is a revulsion against incorporation of a contaminant, and so not merely an aversion to certain sensory inputs or to perceived danger (sterilised cockroaches remain disgusting). Disgust concerns the borders of the body: if you ingest what is base, this debases you. And since the typical objects of disgust are animals and animal products, its cognitive content comes to this: if we ingest animal secretions, we will be reduced to mere animals; if we absorb what is decaying, we will ourselves decay. ‘In all societies . . . disgust expresses a refusal to ingest and thus be contaminated by a potent reminder of one’s own mortality and decay-prone animality.’
Accordingly, when the disgust of one human group at the behaviour or identity of another is given expression in law, Nussbaum argues that the legal system is made complicit in the perennial human desire to regard some human beings as subhuman, and thereby to utilise them as a fantasised buffer between the purely human and the merely animal. We project onto them our hatred of our own animality; their exclusion signifies our desire to transcend our own nature. Hence, as Nussbaum’s account aligns aspects of recent American legal theory and practice (the invocation of disgust in legal definitions of obscenity, or in claiming diminished responsibility for assault and murder) with more general cultural currents such as misogyny, ethnic cleansing and genocide, she makes a two-fold critique of such ways of lawmaking. It gives expression to a groundless hatred of one’s fellow human beings, and to a profoundly damaging mode of self-hatred. In short, disgust-based law underwrites a disgust with humanity as such.
Nussbaum’s analysis of shame is more nuanced; she sees in its cognitive content a potentially affirmative moral and political role. Her account here relies more on psychoanalysis – particularly the work of Winnicott – than empirical psychology. She claims that shame has its roots in infancy, in the clash between our primitive sense of omnipotence – seeing ourselves as the centre of a universe whose sole purpose is to satisfy our needs – and our painful experiences of powerlessness and dependence on others, which enforce a recognition of the world’s essential independence from us. This is the root of shame, Nussbaum claims, ‘for shame involves the realisation that one is weak and inadequate in some way in which one expects oneself to be adequate. Its reflex is to hide from the eyes of those who will see one’s deficiency, to cover it.’
This primitive sense of human finitude as shameful can be overcome in the process of growing up, given the right kind of familial and social contexts; and when it is, shame can take a fruitful place in our lives as a means by which we acknowledge certain ideals, recognise our failure to match up to them, and actively aspire to succeed in the future. However, the more primitive forms of shame persistently recur, threatening to swamp our hard-won sense that there is nothing shameful about vulnerability or imperfection as such, and hence to dominate our relations with others. They may appear as a threat to the satisfaction of our needs and projects, or as the source of our own perceived inadequacy; we might mistreat those with mental or physical disabilities in order to deny that we share their vulnerable condition; we might characterise certain groups – immigrants, the poor – as essentially inadequate in order to shore up by contrast our sense of our own omnipotence.
Nussbaum concludes that laws which inflict shame on fellow citizens, and which fail to protect them from degradation or humiliation, typically represent a failure to renounce infantile fantasies of omnipotence, a persistent denial of our finitude, and hence a denial of our humanity. Shame penalties for criminal behaviour (requiring that drunk-drivers carry a sign to that effect on their licence-plates, or that those who urinate in the street should clean it with a toothbrush) are not only offensive to human dignity and an incitement to mob justice; they activate an exclusionary mechanism of group-formation that projects inadequacy essentially outside the realm of ‘normal’ people. Laws which ban same-sex marriage and otherwise discriminate against minority groups are exercises in stigmatisation that express narcissistic aggression and fuel fantasies of total control.
Furthermore, a decent society must find ways to protect its members against shame and stigma: these will include laws protecting freedom of religion and conscience, providing a decent standard of living, punishing crimes based on hate and bias, and protecting citizens with disabilities. Such laws create a ‘facilitating environment’ in which people can live free from shame and stigma; but they are also ways in which the political community as a whole can protect itself against its deeply damaging tendency to embody the human hatred of finitude and imperfection in its system of justice.
This is not just a book about shame and disgust in the law; it is itself driven by a passionate sense of disgust and shame at the present state of American law and American legal theory. This doesn’t prevent Nussbaum from providing careful discussions of specific legal cases, or exhibiting a thorough responsiveness to the details of opposing arguments and an exhilarating sweep of cultural reference; but it seems to carry her past difficulties of tone, texture and internal tension in her argument that even sympathetic readers are unlikely to miss.
To begin with, there is her use of personal pronouns. For example, when illustrating the way in which fear can be rationally evaluated, she asks us to ‘suppose a colleague of mine crosses the street in fear every time he sees an African American male walking towards him in Hyde Park, and I want to convince him that it is unreasonable to fear every person of a given race.’ Why not switch the roles, and imagine instead that it is her colleague who must reason her out of such an irrational fear? Is it that Nussbaum cannot even imagine succumbing to such obviously indecent feelings? And when she castigates those who understand themselves as normatively ‘normal’, essentially free of the imperfections they project onto others, she persistently talks of such people in the third person: ‘Those who call themselves "normals” find safety in the idea . . . this helps them avoid the shame that they are prone to feel . . . they satisfy their infantile need for control.’ Why not use the first person plural, and thereby acknowledge that no one is essentially immune to such impulses of defence and exclusion? In a book so persistently critical of the ways in which people indulge fantasies of omnipotence by displacing their inadequacies onto stigmatised others, such stylistic or tonal matters cannot be disregarded, for they suggest that Nussbaum is exercising her imagination in ways that exemplify exactly the psychological mechanisms she condemns.
This impression is confirmed by Nussbaum’s hugely oversimplified analyses of her disfavoured emotions, especially that of disgust. She claims that disgust is essentially a revulsion against ingestion of a contaminant, points out that its objects largely have to do with aspects of animality, then concludes that it is fundamentally a revulsion against the animal side of human existence. But this is far too quick. Even if some kinds of disgust do give expression to such self-hatred, can there not be many other kinds which have a different footing?
Take necrophilia. Many people would find such behaviour not simply morally wrong (as if it were a kind of error or false step) but morally disgusting – a way in which moral practice and thought can be rendered corrupt or rotten at its core. Necrophilia degrades the dead, and degrades those who treat the dead in this way. Any society that did not embody its disgust at such behaviour in its legal system would risk the dilution of its conception of what is due to the dead, and thus the decay of a fundamental aspect of its conception of what is due to human beings, living and dead. Why must such a response to necrophilia indicate an infantile disgust with human finitude?
Nussbaum discusses this case, but her struggles with it are vitiated by her opening step. ‘We view these wrongs as grave wrongs primarily on account of the harm they cause to relatives and loved ones of the deceased. The corpse usually belongs to the survivors. It is an especially valuable and intimate type of property, like a precious sentimental or religious artefact.’ This gets things precisely the wrong way around. We do view such acts as causing particularly grave kinds of harm to relatives, but that is because the necrophiliac desecrates the corpse of their loved one; the wrong to the corpse is what explains the particular gravity of the injury done to the relatives. And this wrong is not at all like doing damage to an artefact, because the corpse of a loved one is not a kind of artefact, or a kind of property: it is the remains of a person, all that remains to the living of that once-living human being – one central mode in which that person is present among us. To fail to see this is to fail to see a basic way in which human beings have come to make sense of our animal nature, of the mortality that links not only the living but the living and the dead. Hence, to think that legislating against necrophilia on the basis of moral disgust would betray a failure to acknowledge our humanity is itself a way of hiding from our humanity.
Of course, as a political liberal, Nussbaum might justify her reluctance to acknowledge any such understanding of what it is to be human by claiming that it is morally controversial. As we saw, if the justification for a public policy draws on an element of moral thinking with which one’s fellow citizens might reasonably disagree, then the political liberal must refrain from implementing it, on pain of failing to respect the equal freedom of all. But this response raises two further difficulties. First, those who regard the understanding of necrophilia outlined above as partly constitutive of our conception of what it is to be human might argue that any political community which failed to enshrine it in law would be encouraging the decay of the moral framework without which a distinctively liberal conception of the dignity and worth of persons makes little sense. Any conception of human dignity which prescinds entirely from such broader moral determinations of what it is to be human risks being insufficiently robust to elicit the respect of those subject to laws founded solely on that conception’s extremely limited resources.
But the second difficulty is far more important for Nussbaum. It is very hard to see why the reasons I gave above for finding necrophilia disgusting must be dispensed with in the realm of public political reasoning, and yet Nussbaum’s own interpretation of the cognitive content of shame and disgust can be offered as decisive considerations for and against particular patterns of lawmaking. How can the argument of this book pass the test of reasonable disagreement that its author recurrently deploys to reject moral understandings of disgust and shame that she opposes? Nussbaum leaves this objection unaddressed until the very end of her book, then swiftly dismisses it on the basis that her interpretations are founded on well-supported empirical research and on forms of humanistic interpretation by wise and perceptive people. They may be controversial in some way, but ‘it cannot be a requirement of political liberalism that it say nothing that can be contested . . . there must be some space between the utterly banal and the deeply divisive.’
Few human judgments are beyond all imaginable contestation, but it is a defining requirement of political liberalism that it rely on nothing with which fellow citizens might reasonably disagree. The findings of empirical psychology do not obviously meet this exacting standard; but even if they did, their support alone could not conceivably justify Nussbaum’s talk of hiding from humanity. And even if her humanistic authorities establish that some forms of disgust and shame can plausibly be understood in such terms, they certainly do not establish beyond reasonable disagreement that these emotional responses are necessarily (or even typically) expressive of such tendencies. According to Rawls, what makes a moral view reasonable is solely that its propounders accept the burdens of judgment, and the idea of society as a fair system of co-operation. Beyond that, we reach the terrain – however morally fascinating it may be – of reasonable disagreement. If Nussbaum really believes that liberal lawmaking can be grounded in considerations of how and why humans hate their own humanity, she must allow her opponents the freedom to invoke alternative moral visions of what our humanity involves, and of what it might mean to hate it. But if she really believes in political liberalism, she should not have written this book at all.