Wednesday, March 31, 2010

From Disgust to Humanity

For my birthday last week, someone gave me University of Chicago Professor Martha Nussbaum’s book, From Disgust to Humanity: Sexual Orientation and Constitutional Law (Oxford University Press, 2010). My friend knows I used to be a political scientist, specializing in political theory; and so I guess he reasoned that this might interest me.
Nussbaum has written an advocacy book, but a reasonably balanced and readable one, which mainly makes its case in constitutional-law terms and is thus both very accessible to the ordinary reader and also very relevant to likely legal outcomes of contemporary controversies in our current “culture war.” Animating the author’s argument is her commitment to the individualistic philosophy of John Stuart Mill, specifically the idea that people should be free to choose their own conduct, so long as it does no harm to others. Identifying what constitutes “harm to others,” of course, can be problematic; hence, her use of the idea of “disgust.” People are offended by all sorts of things, some of which are directly offensive or even dangerous to others. These come under the legal concept of “nuisance” and are, Nussbaum recognizes, rightly regulated.
What she calls “projective disgust,” however, is often less a reaction to genuine danger than it is a vehicle for stigmatizing a group or category of persons by imaginatively associating them with primary objects of disgust. She illustrates how historically African-Americans in the United States, Jews in Nazi Germany, and Untouchables in India, for example, have been the objects of such emotions, and have been subordinated and demonized in consequence. She regards such “politics of disgust” as an unsuitable basis for lawmaking, and argues instead for a “politics of humanity” based on a principle of “equal respect” - the idea that all citizens are of equal worth and deserve equal dignity.

She applies this principle to law as it relates to sexual orientation. To illustrate this principle, however, (and it is that basic principle that I am really interested in here) she first examines the development of freedom of religion in Colonial America. She shows how policies of fair and equal treatment of different religions developed not because the religious beliefs of others were respected or valued in themselves or considered any less erroneous, but because other persons came to be respected as fellow citizens, whose dignity entitled their consciences to equal treatment.
Her point, of course, is that one can consistently consider the beliefs or behaviors of others as wrong or misguided and still recognize their personal dignity and their legal right to hold such beliefs and behave accordingly. One wonders, however, how effectively this principle can survive in a society in which a sort of political correctness increasingly tends to dominate public discourse inhibiting the honest articulation of disagreements on moral matters. It would have been helpful if Nussbaum had addressed this issue.

More significant, however, is her philosophical commitment to Millian individualism. She recognizes – with apparent regret - that the U.S. “is not a Millian nation,” and that “ideas of public morality still control a good deal of our legal thinking.” She links the appeal to disgust with “a solidaristic conception of society.” (Her negative take on solidarity reminds me of Margaret Thatcher’s alleged comment that there is no such thing as “society.”) Thus, she frames the debate “about the sort of society we wish to have” in terms of “the age-old debate between the proponents of collectivism and proponents of important spheres of individual liberty.”
There is, of course, a very good case to be made for individual freedom – and indeed, I think, for the classical liberal argument that a good society is one which expands “certain rights of personal decision and association.” If anything, the ever increasing power of the modern state and its increasing involvement in so many aspects of ordinary life add additional weight to the case for protecting zones of individual liberty. The presenting question, it seems to me, is thus not between “collectivism” and “liberty” but between solidarity and liberty. Valuing solidarity requires us to retrieve the pre-liberal, classical insight that human beings are by nature social and can only thrive in relationship - and so to situate individual liberty within a more comprehensive understanding of human existence that recognizes and values a foundational network of bonds between persons and between persons and society. One of the functions, I think, of well functioning political arrangements and institutions should be to enable solidarity and liberty to complement each other in a mutually supportive relationship. For this to happen in our current context, however, we would somehow have to recharge our sadly diminished capacity for productive political deliberation and debate about what constitutes the common good.

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