Episode 04: Martha Nussbaum on sexuality and law

• Rejection of something that is seen as a contaminant (useful in the context of feces, etc.). These are called the primary objects of disgust

• In all societies, it gets extended in practice to groups of people seen as ‘low’/‘dirty’

  • extending the attributes of primary objects of disgust to these people, e.g. separate drinking fountains for blacks

• Lord Devlin: a society needs to be able to defend itself against intrusion/defilement.

  • Justifies making things illegal even if they cause no harm to others

  • His rival: John Stuart Mill who said only harm to others should matter

• More contemporarily, Leon Cass: disgust is a legitimate emotion which can sometimes guide us legitimately warn us of atrocity.

  • E.g. “torture” elicits disgust that rightly directs us away from it

• When disgust is potent, we cannot rely on reasoning to give us respect.

• Gays/Lesbians depicted as weirdos/animals

• ‘Torture’ also elicits indignation, which is a more constructive feeling towards righting the wrong of torture (concede that disgust happens to be right on this one)

  • That is wrong and it better not happen again

  • But maybe indignation may be argued to already be ‘getting too close’ - dignifying the abhorrent act with the status of “an act that is wrong” - maybe rejecting uncritically is the proper treatment?

  • “We won’t look at that at all” is evasion of moral confrontation.

  • Both have cognitive content and are falliable

  • Disgust’s validity limited to primary objects - which actually do pose a danger.

• Juries to whom a murder is described in a more gory way are more likely to be harsher, even though this doesn’t always track how bad the homicide was / whether it was premeditated

• Need to imagine the other as fully human like ourselves

• Is this sufficient? Couldn’t a homophobe fairly imagine this but still conclude the other person is wrong?

  • Nussbaum: Certainly. Empathy is not sufficient for compassion.

  • perhaps not even necessary, e.g. compassion towards actual animals we cannot empathize with.

• Should government be involved in marriage?

  • Marriage has three aspects:

    • 1. Religious: state shouldn’t be involved (obviously)

    • 1. Material: benefits given to certain relationships (civil unions sufficient)

    • 1. Stuff in between: marriage is important because it signals some sort of societal approval of the act

      • Nussbaum doubts that this is really as true as proponents claim:

        • We don’t think of the state as supporting the N’th marriage of some celebrity

        • Extremely low bar in most states for being able to officiate a marriage

  • Civil unions analogous to transracial marriage:

    • People had to fight to not give this a different term since they truly believe it is equal

• Three dimensions that get conflated:

  • Informational: the private is secret

  • Spatial: a private place, like the home

  • Decisional: what is private is yours to design

• Example: pornography is legal, but only in your home. Or a court ruling that gay sex was legal unclear about whether it was merely because it was demonstrated in private that the homosexuality should be condoned.

• Mill: self-regarding impact principle

  • What impact does this have on non-consenting strangers

  • Could recover our intuitions (the pornography has an impact on other people, acts in sex clubs that you have to voluntarily enter).

• We should avoid the word ‘privacy’ because it’s such a nest of confusions.

- W/r/t torture + disgust + indignation:
  - Agree that indignation comes off as more constructive than disgust, though is disgust an essential / primary cause for the indignation? Who is indigant about torture but not disgusted by it?
- Agree disgust is valid when it directs us away from danger
  - Though Nussbaum's opponents are claiming homosexuality is a (societal) danger (for which disgust is just one piece of 'evidence'), so it's deflecting the main argument.
- A couple examples of disgust getting it wrong not convincing.
  - Could come up with examples of indignation getting it wrong according to Nussbaum herself.
  - Hypothetical: suppose Native Americans were disgusted by European settlers and were motivated to unify and reject the invasion. Wouldn't this have saved their society? Was a (counterfactual) stronger disgust reaction the only plausible hope for this happening?
- Is not eliciting disgust in nonconsenting strangers bad by Mill's principle? Couldn't there exist a country whose population is so vicerally disgusted by homosexuality that, in that country, it truly is wrong to have gay marriage? (e.g. Islamic country)