April 7, 2001
By SARAH BOXER 

Should feelings of disgust and shame figure in legal cases? What about indignation, remorse and vengeance? You might think the law is above all that. Apparently it isn't. Sodomy laws are arguably based on disgust. So are obscenity laws. Judges have considered their own disgust, the criminal's disgust and the disgustingness of the crime to decide sentences. In certain states, there are distinct statutes for hate crimes, those motivated by disgust and prejudice. 

Meanwhile, shaming penalties — modern-day pillories — have had a reflowering. California, for instance, has toyed with the idea of making people with drunk-driving records use license plates that say "DUI." One Arizona sheriff has made his prison inmates wear pink underwear and striped uniforms and has formed male and female chain gangs. 

Philosophers, legal theorists and even literature professors are reconsidering what place the emotions should have in law. And a new collection of essays, "The Passions of Law" (New York University Press), edited by Susan A. Bandes, a professor of law at DePaul University, focuses on just that issue. 

Disgust already has many advocates. In his book "The Anatomy of Disgust" (Harvard University Press), William Ian Miller, a law professor at the University of Michigan, argues that disgust holds society together. The more people distance themselves from what they find disgusting, the more civilized and moral they become. Mr. Miller, who has also written a paean to humiliation and shame, praises disgust for marking out "moral matters for which we can have no compromise." Dan M. Kahan, a law professor at Yale University, takes it one step further, into the law. Although disgust is regarded as an "illiberal sentiment" and thus beneath the dignity of the law, he writes in the Michigan Law Review in 1998, it does, like it or not, play "a central role in criminal law." 

To make his point, Mr. Kahan cites two legal cases in which disgust came up. One is the case of Stephen Roy Carr, who murdered two lesbian hikers because he was revolted by "the show" of their lovemaking. The judge refused to admit Mr. Carr's disgust as mitigating evidence. The other case is that of Richard Lee Bernardski, who killed two gay men. In that case, the judge decided to mitigate Mr. Bernardski's sentence, because the judge himself was disgusted by gay cruisers. 

It is impossible to figure out which judge was right just by applying the principles of homicide law, Mr. Kahan writes, because those principles have "nothing to say about the nature of disgust." Criminal theories, he adds, "push disgust down below the surface of law, where its influence is harder to detect." 

Maybe that is where it belongs. Martha C. Nussbaum, the Ernst Freund Distinguished Service Professor of Law and Ethics at the University of Chicago, weighed in against disgust in a lecture at the Remarque Institute at New York University last month. "Disgust is never a good legal argument," she said. 

Her dispute with disgust rests largely on psychological evidence. She cites the work of the experimental psychologist Paul Rozin, who, after testing people's reactions to different disgusting substances, concluded that the core objects of disgust — feces, spit and semen — are all things that remind people of their own animality and decay. Disgust is revulsion at the prospect of taking decaying animal products into the body, she says. It guards the body's borders. 

What does this have to do with the law? Some people, including Mr. Miller, have argued that because disgust has primitive evolutionary roots it warns us of danger, whether it is from rot, corpses, snakes, vermin, feces or crime. If people are disgusted by a crime, the law should listen. 

The problem, Ms. Nussbaum says, is that many things seem disgusting only by association. People won't eat chocolate that has been molded to look like dog doo, or soup served from a sterilized bedpan. More to the point, people learn to hate by linking their natural sense of disgust to certain people. Misogyny, she argues, is based on the idea of women as sewers, receptacles for sperm. 

Her recommendation is therefore "distrust disgust" (as Johnnie Cochran might have put it). While disgust doesn't always warn us of danger, it always separates "us" from "them," as it patrols the borders of the body politic. When members of society are disgusted by a criminal, she says, they are warding off thoughts of their own capacity for moral corruption. 

Many advocates of disgust also advocate shame. Mr. Kahan, for example, has said that shaming penalties are good because they are expressive. They use the power of humiliation to express social values and moral outrage. 

Shame certainly has an extra moral oomph that other types of punishment, including prison, fines and public service, lack. For a man who solicits prostitutes, it is far worse punishment to carry a placard announcing that fact than it is to pay a fine. For a man who urinates on the street, it is far worse to be made to clean the spot with a toothbrush than to do public 
service. Shame is primitively effective. 

Yet its primitive appeal is also its weakness. In "What Is Wrong With Inflicting Shame Sanctions?," a 1998 article in the Yale Law Journal, James Q. Whitman, the Ford Foundation professor of comparative and foreign law at Yale Law School, writes that shaming is "a species of lynch justice" that creates "an ugly, and politically dangerous, complicity between the state and the crowd." Rather than punishing the criminal, the state leaves it up to the mob to decide what to do. 

Ms. Nussbaum suggests that shame's primitivism is tribal. Shame, like disgust, brands the person rather than the act itself. And that kind of stigmatization, Ms. Nussbaum said, tends to spread to groups who haven't done anything wrong. Try guilt instead of shame, Ms. Nussbaum suggests, since guilt focuses on the act committed. 

But guilt, or at least the feeling of guilt, has its doubters as well. To Peter Brooks, the Chester D. Tripp Professor of Humanities at Yale University and the author of "Troubling Confessions: Speaking Guilt in Law and Literature" (University of Chicago Press), the problem is that people feel guilty and confess for many reasons, and only one of those reasons is actual guilt. 

Confession "accomplishes something other than the simple revelation of a truth," he writes. A confession may be self-destructive, as the Talmud suggests. And as Freud speculates, guilt may even cause crime in order to bring on punishment. To confuse matters more, we live in a culture of confession. People confess their affairs on television for publicity. They confess in church for absolution. And they confess on the couch to feel better. In such a culture, confession cannot be trusted as evidence of real guilt. 

Even the Miranda warnings, which are supposed to be read to a suspect before interrogation, seem to suggest that there is "something inherently unstable and unreliable about the speech-act of confession," Mr. Brooks writes. The famous warning, which was recently reaffirmed by the Supreme Court and declared to be "part of our national culture," protects the suspect not only from the pressures of the police but also from himself and his emotions. 

So where does that leave emotion in the law? Most criminal behavior is either fraught with emotion (wife-beating) or stunningly devoid of emotion (coldblooded murder) or emotionally inflammatory (hate crimes), writes Richard A. Posner, a judge on the United States Court of Appeals who teaches at the University of Chicago Law School. There are a million different passions. "The law cannot be expected to be flatly for or flatly against emotion or emotionality," he writes, "any more than it could have a uniform policy toward information or belief."