The Anatomy of Disgust.

• Author: Kahan, Dan M.

The Anatomy of Disgust. By William Ian Miller. Cambridge, Mass.: Harvard University Press. 1997. Pp. 320. $24.95.

1. A CONCEPTUAL BLINDSPOT

   My goal in this review is to call attention to a defect in the dominant theories of criminal law and to identify a resource for remedying it. The defect is the absence of a sophisticated account of how disgust does and should influence legal decisionmaking. The corrective resource is William Miller's The Anatomy of Disgust.(1)

   To make my claims more vivid, consider two stories. Both involve men who were moved to kill by disgust toward homosexuality.

   Stephen Roy Carr observed two female hikers in the woods and decided to follow them at a distance. That night, as the women were engaged in lovemaking at their secluded campsite, the armed Carr burst from his hiding place and shot them repeatedly, killing one and severely injuring the other.(2) Carr maintained at trial that "the `show' put on by the women, including their nakedness, their hugging and kissing and their oral sex had filled him with overpowering revulsion.(3) In support of this defense -- which he offered to mitigate the charge of murder to voluntary manslaughter(4) -- Carr proffered psychiatric evidence relating to his rejection by his mother, whom he suspected of being a lesbian, and by other women.(5) After the judge refused to admit this evidence, Carr was convicted of first-degree murder.(6) The Pennsylvania Superior Court affirmed.(7) "[The law] does not recognize homosexual activity between two persons as legal provocation sufficient to reduce an unlawful killing ... from murder to voluntary manslaughter," the court concluded.(8) "A reasonable person would simply have discontinued his observation and left the scene....(9)

   Richard Lee Bernardski was convicted of a double murder.(10) Evidence at trial demonstrated that the eighteen-year-old Bernardski and his friends had set out one evening to "pester the homosexuals.(11) They proceeded to a part of town known for its gay nightlife and accepted a ride from two gay men whom they met there.(12) After the group drove to a remote spot in the woods, Bernardski ordered the gay men to strip.(13) When they refused, Bernardski drew a pistol and opened fire, killing both.(14) Unlike the judge in the Cart case, however, the judge who presided over Bernardski's trial expressed sympathy for Bernardski's revulsion. "I put prostitutes and gays at about the same level," the judge explained, "and I'd be hard put to give somebody life for killing a prostitute."(15) After all, he said, Bernardski's victims would not have been killed "if they hadn't been cruising the streets picking up teen-age boys"; "I don't much care for queers cruising the streets [picking up teen-age boys]. I've got a teen-age boy."(16) The judge rejected the prosecution's recommendation of life imprisonment and instead sentenced Bernardski to a term in line with the ones imposed for persons convicted of voluntary manslaughter.(17)

   Which judge got it right -- the one who refused to let Carr tell his story of disgust; or the one who not only listened to Bernardski, but who mitigated the sentence because of his own disgust toward homosexuality? Can we possibly answer this question without some account of what disgust is? Maybe disgust consists, as Carr seemed to suggest, of an impulsive and unthinking revulsion toward its object. If so, then shouldn't the court have admitted Carr's psychiatric evidence to determine whether his disgust had impaired his capacity for self-control and hence his moral responsibility for his behavior?(18) If that's what disgust is and why it matters, shouldn't the judge who sentenced Bernardski have been less sympathetic -- both because Bernardski's attack was so clearly premeditated, and because the judge himself had a duty to rely on reason, rather than instinctive aversions, in fashioning an appropriate sentence?

   Or perhaps disgust embodies an evaluative appraisal that is itself susceptible of being evaluated as morally true or false.(19) But in that case, we can again ask, who got it right -- the court in Carr, when it labeled the defendant's disgust "unreasonable"; or the judge in Bernardski, when he allowed his own disgust to tell him that the defendant deserved mitigation for his? The conventional principles of homicide law don't supply answers to these questions, because those principles have nothing to say about the nature of disgust.

   This frustrating muteness generalizes. Many jurisdictions authorize the death penalty for murders that are "outrageously or wantonly vile, horrible, or inhuman" or the like.(20) This formulation says, in effect, that capital sentencers -- typically juries -- should trust their own disgust sensibilities to identify which murderers deserve to die. But why should we have this much confidence in disgust to discern what's just?

   Many judges now punish offenders with shaming penalties -from bumper stickers for drunk drivers, to stigmatizing publicity for men convicted of soliciting prostitutes, to signs or even distinctive clothing for thieves.(21) Shame and disgust are obviously related: those who are shamed predictably incur the disgust of others and even of themselves (pp. 34, 80). Is the eliciting of disgust an appropriate or sensible aim of punishment?

   Finally, the law often treats disgust toward an activity -- such as obscenity or sodomy -- as sufficient to make it criminal. Is disgust by itself a legitimate ground for coercion?

   Miller's work, I will try to show, furnishes a solid theoretical foundation for addressing the role that judgments of and about disgust play in the criminal law. Drawing on a rich variety of sources in psychology, history, literature, and philosophy, Miller paints a vivid picture of disgust as "a moral and social sentiment" (p. 2). By "mark[ing] out moral matters for which we can have no compromise" (p. 194), disgust, he convincingly argues, plays an indispensable role in our evaluative life. It plays just as important a role, moreover, in social life, "rankling] people and things in a kind of cosmic ordering" (p. 2), and thus supplying "the basis for honoring and respecting as well as for dishonoring and disrespecting" (p. 202). These insights do not by themselves resolve all of the criminal law controversies in which disgust figures -- a topic, sadly, about which Miller himself has little to say. But they do, I believe, help to reveal exactly what is at stake in these disputes, and why they take on the political salience that they typically do.

   Indeed, Miller's account can help us to see why, despite the pervasiveness of judgments of and about disgust in criminal law, official and academic criminal law theory has so little to say about it. Disgust, Miller shows us, is brazenly and uncompromisingly judgmental; the moral idiom of modem liberalism is not. Miller attributes the relatively peripheral role that disgust plays in this discourse to "[a] newer style of moralist.... one for whom tolerance and respect for persons are fundamental virtues" and who therefore "wish[es] our disgust sensitivities lowered so we would be less susceptible to finding difference and strangeness sources of disgust" (p. 179). The dominant forms, of normative theorizing in criminal law are no less averse to the kind of intolerant moralizing that disgust embodies. Miller argues that it's naive for contemporary moral theorists to pretend that disgust doesn't influence moral judgments; I want to suggest that the willful blindness of criminal theorists toward disgust is even worse than that.

2. MILLER'S DISGUST

   Miller addresses disgust as part of an ongoing project to defend a style of social theorizing that "privileges the emotions in general and certain emotions in particular" (p. 21). This project has two adversaries: behaviorist forms of social science, which "try to explain most social action by reference to self-interest" and thus ignore emotions altogether (p. x); and contemporary psychoanalysis, which "reduc[es emotions] to mere veneering on [some] underlying oedipal master narrative" (p. xii). In the place of these emotion-inattentive accounts, Miller seeks to show that the contours of a community's emotional life "make possible social orderings of particular stripes," and that it therefore "behooves social and political theory to care about these emotions" (p. 18). The Anatomy of Disgust is the second installment in this project; the first was Miller's book Humiliation,(22) and the next a forthcoming book on cowardice.

   Unlike the social scientists and psychoanalysts he attacks, Miller is a social constructivist.(23) On this view, social norms and meanings determine the content of emotions, which in turn reinforce those norms and meanings.(24) "Emotions," Miller contends, "are feelings linked to ways of talking about those feelings, to social and cultural paradigms that make sense of those feelings by giving us a basis for knowing when they are properly felt and properly displayed" (p. 8). This is so for "even the most visceral" emotions, such as disgust:

   Even when the source of disgust is our own body the interpretations

   we make of our bodily secretions and excretions are deeply embedded

   in elaborate social and cultural systems of meaning. Feces,

   anuses, snot, saliva, hair, sweat, pus, the odors that emanate from our

   body and from those of others come with social and cultural histories

   attached to them. [p. 8]

   At the same time, emotions such as anger, humiliation, and disgust have "functions": they enable certain experiences and foreclose others, in much the way that language selectively enables thoughts; they supply powerful "motives for action," demarking some experiences and objects as worthy of aspiration and others as not (pp. 8, 18). For these reasons, emotions inevitably feed back into the norms and meanings that construct them, entrenching those phenomena as the basis of a community's distinctive mode of social...