The Meanings of Shame: Implications for Legal Reform
Toni M. Massaro
University of Arizona College of Law
This paper describes and critiques the recent revival of interest in shame and shaming in various contexts, including criminal punishment. In particular, it discusses criminal sanctions that require defendants to wear signs in public, or to otherwise advertise their convictions.I begin with the work of culture critics who claim that Americans have become shameless in ways that undermine important social and legal goals. I take issue with these critics, and warn against legal reforms based on their provocative, but potentially destructive call to shame. I argue that the culture critics tend to conflate three terms: shame, shaming, and shameful, and explain why separation of these terms is crucial to meaningful discussions about whether Americans have "lost" their sense of shame or should be shamed for violating social or legal norms.I then develop the psychological and the anthropological meanings of shame, use this backdrop to evaluate all three terms, and speculate about the likely individual and social consequences of official shaming techniques. The insight of these materials is that shame is a sophisticated, context- sensitive and potentially highly destructive emotion. Only in certain cultural settings is official shaming likely to prove an effective or humane method of enforcing norm observation.Finally, I apply these insights to the use of shaming penalties by courts in criminal cases, and conclude that American criminal courts may be ill-equipped to exploit offender or audience shame vulnerabilities in a way that makes practical or moral sense.This article deals primarily with shame penalties imposed on criminal defendants, but the discussion is also relevant to emerging legal scholarship on the role of emotions, including shame, in shoring up social norms.
Date posted: April 30, 1997
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