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Martha Nussbaum Princeton University Press, Princeton, 2004, 432pp.ISBN: 0 691 09526 4
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Emotions, Nussbaum claims, are pervasive and it would be difficult to think of law without in some way including them. But they are also problematic. If they concern reasonable beliefs about goods which are important to have, don't people have different ones, and how then can we enforce them via the criminal law in a liberal society?
One way of dealing with that problem has been a form of utilitarianism where deterrence is the only variable, and the actual act, rather than internal emotions, intentionality, etc., is the focus. But, asks Nussbaum, how can you have such a system without doing damage to the way we ordinarily think of the operation of systems like the criminal law? Nussbaum wants to look at what part the emotions of disgust and shame should play in the institutions, especially the law, of a liberal society. She asks what sort of political and legal culture will be appropriate for enhancing respect for persons in a liberal regime; a society, that is, where we all recognize our vulnerable humanity out of a respect for the equality of each of us in that vulnerability.
Her book ultimately looks to the 'psychological foundations of liberalism, about the institutional and developmental conditions for the sustenance of a liberal respect for human equality' (p. 16). This is for her Millian in that it emphasizes liberty as well as equality and a space for creativity. Although her answer in substance is a Millian one, she aims to provide a better rationale for it than the famous harm principle.
She looks at disgust and shame and the part they should play in the law. Her approach is to look at the emotion and its cognitive content first and then see how that resonates with its use in law. Firstly, she considers disgust. Part of its 'thought content' seems to be the idea that we can be contaminated...