ROGER KIMBALL: Beyond Reason: How Shame and Disgust Shape Law and Society.
It might seem that the meditations of a seventeenth-century French philosopher are pretty distant from the conundrums facing us in the twenty-first century. In some ways, this is true. But Descartes did an enormous amount to define the methods, goals, and ideals of scientific rationalism, a worldview that systematically deprecates the significance of any experience not amenable to rational analysis. Paul Valéry summed up the problem in his brief sketch for an essay on Descartes. Like many moderns, Valéry found himself bewitched by the heroic solipsism of Descartes’ formula, cogito ergo sum. Yet he knew that a corollary of that formula was a world in which “the word ‘knowledge’ is increasingly denied to anything which cannot be translated into figures.” Among other things, this meant that, as Valéry put it, “the truth for modern man, which is exactly related to his freedom of action over nature, seems more and more to be in opposition to everything that our imagination and our feelings would like to be true.” As Valéry understood, we owe our humanity not only to our ability to reason but also to our status as creatures of feeling, imagination, and moral responsibility. In the end, the idea that we are the “masters and possessors of nature” is a risible illusion bred by overweening cleverness. For ultimately, it is nature that masters and possesses us, a fact we deny to our intellectual peril and moral diminishment.
What has all of this to do with the law? For a first answer to that question, let’s broaden the field from hunches to those great underrated human resources, prejudice and the feelings of disgust and moral outrage. On those subjects, I can think of no better place to begin than with Martha Craven Nussbaum, who, among other attainments, is a professor of law, philosophy, classics, and divinity at the University of Chicago. In her book Hiding from Humanity: Disgust, Shame, and the Law and some related articles, Professor Nussbaum argues that “the law, most of us would agree, should be society’s protection against prejudice.”
Really? I suspect “most of us would agree” that the law ought to be society’s protection against crime. But perhaps Professor Nussbaum thinks that prejudice is itself a crime—though surely not all prejudice. Edmund Burke said that prejudice “renders a man’s virtue his habit.” He meant that if we have a predisposition—a prejudice—toward the right things, they more easily become second nature. Surely Professor Nussbaum would not wish for the law to protect us from that sort of prejudice. And it must be said that she herself is clearly prejudiced against anything she labels “conservative.” I doubt that she believes that the law should be society’s protection against prejudice directed at conservatives.
Read the whole thing.