Whitman on Nussbaum, and me

Over at the Harvard Law Review, you can access the abstract to Jim Whitman's trenchant, albeit sympathetic, critique of Martha Nussbaum's last book, Hiding from Humanity: Disgust, Shame, and the Law.  The full citation is 118 HARV. L. REV. 2698 (2005).  Whitman's writing is, as always, erudite, elegant and a joy to read.  Here's a sample from the abstract:

Maybe it takes a philosopher to remind us that human psychology presents tougher and more frightening problems than the ones we most enjoy discussing in the classroom. The human animal is capable of behaviors unimagined by our rational actor models, and even by our most resolutely “behavioral” brands of law and economics. Hiding from Humanity faces up squarely to that psychological truth. Al-though it has been marketed, to some extent, as a book about T-shirts and bumper stickers, Nussbaum’s book is more. It is an effort at frank reflection on the nastier human emotions, and an exploration of their place throughout the entire landscape of the law. If the book achieves nothing else, it will deserve praise for that.

This is a book that rubs legal scholars’ noses in the problems represented by Abu Ghraib, and it arrives at a moment in our history when that is exactly what we need. The ultimate success of a book depends, though, on the power of its particular arguments, and by the end of this Review I will have to report that I find Nussbaum’s arguments disappointing. This is a book by an author with an admirably humane sensibility, and a much richer grasp of the human predicament than most of our legal academ-ics display. It is also a book that could hardly be more timely. In the end, however, it is a book by an author who has not, to my mind, fully reckoned with the problems presented by the law.

In the body of his review, Whitman also kindly calls attention to my "acute writings," which Nussbaum relied upon in fashioning her anti-shaming punishment position.  (Disclosure: I gave Martha extensive comments on the manuscript in the summer of 2001, a few years before it was published.)

At that moment in the review, Jim, who I've known as a good mentor and wise reader of drafts for a while, drops a footnote to "protest" a misuse of his work by me, and by extension, Nussbaum, who repeated my "mistake."  In my 2001 Vanderbilt piece, I had ascribed to Whitman the sense that he thought shaming punishments were "beautifully retributive." Here's what Jim had written in his 1998 Yale piece, What Is Wrong with Inflicting Shame Sanctions?, 107 Yale L.J. 1055, 1062 (1998)

Here Kahan is joined by Toni Massaro, who, though a critic of shaming, concedes that shame sanctions are fully compatible with standard punishment theory. There is, these scholars observe, no empirical reason to suppose that shame sanctions cannot deter; they seem beautifully retributive; they may well rehabilitate better than prison does; and they might even serve to incapacitate. (footnotes omitted)

Jim's footnote 71 in HLR states that his use of the phrase "beautifully retributive" was merely describing

the attitudes of others toward these punishments, without offering my own account of retributivism.   But Markel, see Markel, supra note 1, at 2182, and Nussbaum (p. 239) cite this passage as though I had offered such an account.  What I do believe is stated in the text of this Review: "retribution" is a slogan that encourages punitiveness, and Markel and Nussbaum have not offered any reason to suppose that careful philosophizing about the distinction between retribution and vengeance can do anything to ward off that danger.

Jim is right that he does not offer an account of retribution that would ipse dixit embrace shaming punishments in his 1998 piece.  I think I was thrown off by the fact that he used semicolons, which separated, in my mind, his views from those other scholars who wrote concerning about deterrence.   Moreover, I think Jim's point -- that retribution is a slogan that encourages punitiveness -- also indicates that retribution would therefore be indiscriminate about which kind of punitiveness is inflicted upon criminals, and thus that shaming punishments would be perfectly fine under the flag of retribution.  So, it's true that it's not correct to assume that Jim thinks shaming is "beautifully retributive" based on a developed account he offers, but I do think that his stated argument fairly, if not ineluctably, leads us to that conclusion.

And in that respect, this is where I think he errs.  For the point of my Vanderbilt piece was to explode the then-emergent consensus among scholars that shaming was compatible with retributive punishment.  I argued that shaming is more in line with vengeance and not retribution properly understood.  And that distinction, I believe, is what Martha picked up on by embracing (at least in part) the kind of retributive understanding of punishment that I've been advocating in my scholarship the last few years.  Jim may not think that distinguishing between retribution and revenge will have much political traction; I disagree and my piece on the retributivist case against the death penalty (which is coming out any day now in Harv CRCL) tries to explain how to develop that traction.  (You can find it on my ssrn page.)

All this is arguably small beer, at least in terms of policy.  All three of us agree that punishment in America fails to conform in large measure with the requirements of respect for human dignity, and all three of us are against shaming punishments, which were recently upheld by the court in the Ninth Circuit in Gementera.  (Sadly, a month or two ago, the Ninth did not agree to take the issue en banc despite some votes to do so.)  So this is a lot of inside baseball, but I thought it might be of interest to at least a few readers.