Episode 4: Martha Nussbaum discusses sexuality and the law
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What does Martha Nussbaum argue about the role of disgust in legal regulation of sexuality?
Hello and welcome to Elucidations, a philosophy podcast recorded at the University of Chicago. I'm Matt Tigman. And I'm Mark Hopwood. With us today is Martha Nussbaum, Ernst Freund Distinguished Service Professor of Law and Ethics at the University of Chicago. And she's here to talk to us about sexuality and the law. Her new book on this topic, entitled From Discuss to Humanity, Sexual Orientation and Constitutional Law, is forthcoming from Oxford University Press and is part of a series on inalienable rights. Martha Nusbaum, welcome.
Well, hi. It's very good to be here, Mark and Matt.
In your book you argue that there's been a historical tendency to place legal restrictions on certain kinds of sexual acts on the basis of the feelings of disgust that those acts generally inspire. And then as a corrector to that way of thinking, you recommend another way of thinking. You recommend in particular that we exercise our capacity to imagine the world through another person's eyes, to see that person as fully human, rather than merely as a thing. In other words, you think that whatever legal restrictions we do end up placing on each other's sexual conduct ought to be
Yeah, that's basically right. But let me step back a little bit. Uh in two thousand four I wrote a book called Hiding from Humanity, which was a very broad philosophical investigation of both disgust and shame, where I looked at, first of all, the cognitive content of both of those emotions, but in the case of disgust, the idea is the rejection of something that's seen as a contaminant. The feeling, yuck, let me get that away from me. But experiments have shown that it isn't just a bodily reaction, it's a it i there is a thought process involved there. And what I tried to show there was that not only do we reject feces, urine, other waste products, but m all societies identify a group of people whom they stigmatize as low, bestial, dirty, and then they reject
them as contaminating to them. So disgust uh which could be useful in some context then becomes socially very uh pernicious. And and I looked at the role of disgust in social hierarchies of various types, including anti-Semitism, misogyny, uh the Indian caste system, and so on. But of course, uh in America, I think if we want to find a place where we see the politics of disgust operating, it's in the area of sexuality above all that we see it. And we don't just see it, but we find very influential theoreticians defending it. So the most inf one of the most influential legal theorists of the 20th century, Lord Devlin, argued that a society needs to be able to defend itself against intrusion, contamination, defilement, and that therefore people were within their rights, if they used their very strong feelings of disgust to identify things that should be illegal, even if they caused no harm to anyone else.
His great adversary was John Stuart Mill, who of course holds that It's only when something either harms or imminently threatens to harm another person that it could possibly be within the realm of legal regulation. So Devlin argued that disgust was enough, and and and part of what I uh did in the earlier book was to try to show how unreliable disgust is, how connected it is with completely irrational stigmatization and subordination.
How does Nussbaum contrast disgust with indignation as moral responses?
So in this new book, I I zero in on the politics of sexual orientation in America, and I say, look, here we see the politics of disgust operating in a particularly pernicious form. I look at the propaganda of the Christian right and identify disgust operating there. And then what do we want instead? Well, of course what we want is respect for persons. And that, in a way, goes without saying. And we want equal respect for persons. Where I bring in imagination is the g when disgust is so potent and it's so widespread, then I think we can't rely on our reasoning process to give us respect. We need something else. We need to be able to see the people as full human beings pursuing purposes that are similar to our own.
gay and lesbian people have often been depicted as marginal weirdos who are just sorta like animals, they're really not like us at all.
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Chapters
8 chapters
1
What does Martha Nussbaum argue about the role of disgust in legal regulation of sexuality?
0:19–3:38
2
How does Nussbaum contrast disgust with indignation as moral responses?
3:38–6:19
3
Why does Nussbaum claim imagination is essential for respecting sexual minorities?
6:19–8:41
4
What are the arguments for and against state involvement in marriage versus civil unions?
8:41–11:01
5
How does the discussion link the evolution of same‑sex marriage debates to concepts of dignity and equality?
11:01–13:51
6
What challenges does Nussbaum identify in defining privacy for sexual conduct?
13:51–16:44
7
How does Mill’s distinction between self‑regarding and non‑self‑regarding acts shape legal protection of private sexuality?
16:44–19:25
8
What practical steps does Nussbaum suggest for clarifying the law on private sexual activities?
19:25–22:29
Speakers
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