Shame on You, Shame on Me? Nussbaum on Shame and Punishment
March 10, 2006
Published version is Brooks, Thom (2008). "Shame on You, Shame on Me? Nussbaum on Shame and Punishment," Journal of Applied Philosophy 25: 322 - 334.
In her Hiding from Humanity, Martha Nussbaum claims that society should not impose shame punishments. I will argue that she correctly directs our attention to the fact that emotions are integral to any proper understanding of our laws. Her views are not only consistent with current law, but perhaps go further than she realizes.
Nussbaum does not endorse the use of shame punishment primarily on the grounds that shaming offenders often amounts to their losing dignity. Yet, her concerns about dignity and insistence that shaming ought never be imputed purely for the sake of humiliating offenders have, in fact, been addressed by the courts in a way which overcomes her important reservations. Thus, her account of law is not only correct to highlight the relationship that exists between emotions and the law, but, in addition, her views are also consistent with the legitimacy of shame punishment in current practice as well. As a result, she need not be opposed to the use of legitimate shame punishment.
My argument takes the following form. I first discuss Nussbaum's arguments in favor of accounting for our emotions in our thinking about law. Second, I next explain why she singles out shame as an emotion that should be treated differently: the only emotions that should be avoided in our legal thinking are shame and disgust. This drives her opposition to shame punishment for reasons grounded in her rejection of shame more generally. Third, I turn to her discussion of guilt and its close relationship with shame, arguing that shame may well have a legitimate role in bringing apathetic offenders to undergo a change of heart and recognize their own wrongdoing. I conclude with the recent case U.S. v. Gementera where the Court of Appeals sanctioned the use of shame punishments on grounds acceptable to Nussbaum's account.
Keywords: Nussbaum, Brooks, shame, punishment, shaming, punishments, law, philosophy, legal, theory, crime, emotion, disgust, Gementera, Court of Appeals, guilt, humiliation, recognition, wrongdoing, dignity, Kant, Kantianism, Aristotle, Aristotelian, reason, reasons, apathy, offenders, criminals, apathetic
JEL Classification: K00, K10, K14, K19, K30, K39, K40, K49
Date posted: March 23, 2006 ; Last revised: January 15, 2013