Defending Devlin from the Critiques of Nussbaum
In Hiding from Humanity: Disgust Shame and the Law, Martha Nussbaum offers a pointed critique of what she views as the legal role of disgust proposed by Patrick Devlin in “Morals and the Criminal Law.” By first analyzing the universally motivating human emotion of disgust, Nussbaum concludes that, despite general importance as an emotion in human life, disgust has no place as a foundation for determining if an act or entity ought to be considered a threat to society. It follows from this conclusion then, that there appears no appropriate reason for using disgust as a basis for making certain human actions illegal. As an alternative, Nussbaum proposes instead that principles both more reliable and less open to contingent and oft-changing societal perceptions act as a basis for illegality rather than disgust.1 In spite of Nussbaum’s criticisms, however, I wish to make the case that disgust need not be as necessary to Devlin’s argument of collective moral judgement as it first appears. Although problematic in how Devlin’s argument incorporates a notion of a static society, his argument for the rightness of collective moral judgement in law could seemingly be refined to not only address the concerns of Nussbaum, but accommodate them as a broader consideration of society under a framework of collective moral judgement.
By disentangling Nussbaum’s notion of disgust from public morality and law as described by Devlin, I first will attempt to illustrate that the core of Devlin’s argument need not be entirely incompatible with a society that omits disgust from its legal justifications as Nussbaum appears to argue.2 In this regard, I will attempt to rehabilitate Devlin’s argument not as a moral prescription for what makes a just society, but what sort of framework would be expected of a society that is able to functionally reconcile its most deep seated moral intuitions with the legal system in a way that any given society, no matter its public morality, would find optimal in a functional sense. Secondly, I will argue that by not proscribing disgust entirely as a possible legal justification for certain acts, that disgust is permitted to play a potentially valuable role in reinforcing the attainment of a societally desired level of punishment for acts already considered illegal by more fundamental notions such as the harm principle. I will finally argue that Devlin’s paper may be interpreted as offering a functionally ideal arrangement between any given public morality and the extent to which the legal system accommodates its aims and that a configuration that allows society to implement its dominant morality into legal code may in fact offer a stronger adherence to a substantive rule of law as understood by some authors.
Firstly, I wish to propose that the basis of Devlin’s argument does not necessarily incorporate disgust as foundational to the legal system, but rather proposes a framework based on the collective morality of any given society that only incorporates disgust contingently. More specifically, I wish to argue that Devlin may be interpreted as merely maintaining the conditional argument that if a society maintains a certain public morality, then it follows that society will be justly inclined towards its own perceived wellbeing and preserve the public morality legally in the same way that it is inclined to preserve other objects of value, such as government or property. I believe that a broader interpretation of the main idea of Devlin’s work than the viability of disgust as a legal basis can be derived from statements throughout Devlin’s essay such as the quotation, “If society has no right to make judgements on morals, the law must find some special justification for entering the field of morality… But if society has the right to make a judgement and has it on the basis that a recognized morality is as necessary to society as, say, a recognized government, then society may use the law to preserve morality in the same way as it uses it to safeguard anything else that is essential to its existence.”
In effect, I would like to reformulate Devlin’s argument not as argument about what morality should or should not be based in prior to serving as a legal basis, but an argument about how the law ought to be consistent with the public morality as a general ideal for an optimal societal function. It is not difficult to imagine a marginally increasing tension in a society where legality is increasingly disjoint from the value system and ethical principles of society’s members. Thus, this increasing tension implies that a more optimal state exists where a society’s legal framework accommodates or enforces the most fundamental moral principles of the society. I should clarify that I do not seek to defend Devlin’s notion of a static society which would cease to exist if certain public morals were left unenforced.3 I would rather focus on his argument as a means by which to describe how any given society might optimally reconcile its legal framework with any given dominant perception of morality.
Secondly, I wish to argue that there are several theoretical insights to be gained from interpreting Devlin’s argument as not inherently requiring disgust in its basis, though the possibility of disgust forming a foundation for making certain acts illegal is admittedly not precluded by his framework. A first theoretical insight would be that unlike a framework proposed by Nussbaum, which would omit disgust entirely from the legal lexicon, Devlin’s approach to morality could allow possible instances in which disgust, though possibly not a reliable basis for morality in an of itself, acts as a motivating force to more effectively compel the law to operate against crimes that are found despicable for reasons other than disgust.4 From a standpoint of the legal deterrence of crime by means of punishment, society might find a more satisfying equilibrium of punishment for certain crimes if certain acts were punished more harshly on the basis of disgust. An example such as pedophilia, which would already be found as justifiably illegal by means of the harm principle, might nonetheless be far more disdained by society due to the perception that harm to children is impressionably worse than harm done to adults. To reconcile this increased disdain of the act with the desire for more severe punishment, disgust might be thought to serve as a convenient legal vehicle for society to better achieve and uphold its most carefully guarded mores. In effect, disgust in a possible society allowed by Devlin’s framework may provide additional, easily identifiable, justification in certain cases in which the necessary harm principle has already been violated, but does not seem sufficient on its own to match the degree to which society would like an act deterred by its own public morality. An additional theoretical advantage to not entirely banning disgust from the framework of how morality ought to at least partly motivate law comes from the functional efficiency in terms of rule of law that a society might derive from having its legal framework more closely align with its public morality as earlier described.
1 Nussbaum, Martha C. Hiding from Humanity Disgust, Shame, and the Law. Princeton: Princeton University Press, 2009.
2 Nussbaum, Martha C. Hiding from Humanity Disgust, Shame, and the Law. Princeton: Princeton University Press, 2009.
3 Devlin, Patrick. The enforcement of morals. Indianapolis: Liberty Fund, 2009.
4 Nussbaum, Martha C. Hiding from Humanity Disgust, Shame, and the Law. Princeton: Princeton University Press, 2009.
- Quote paper
- Seth Carter (Author), 2017, The Legal Role of Disgust. Defending Patrick Devlin from the Critiques of Martha Nussbaum, Munich, GRIN Verlag, https://www.grin.com/document/429678