The role of disgust in the law is ancient and vital. Disgust has often been thought a marker of the bounds of the civilized. It is one of those signals in, for example, criminal law that warn of entry into the territory of the deeply transgressive, and that constitute a particularly distinctive corner of criminal prohibition. Disgust aligns with and supports those “creedal prohibitions” without which, as Philip Rieff once said, “our law cannot help us govern ourselves.”
Yet one of the major projects of liberal modernity in law and politics has been to overcome disgust, denigrate as simply a backward and unenlightened emotion, and replace it with a fully rationalized and ostensibly more humane system of governance. See, for example, here. And here is another book with a similar object, albeit from a different disciplinary perspective, though I do wonder whether “gross” and “wrong” are really as often confused together as the blurb below suggests–Objection: Disgust, Morality, and the Law (OUP) by psychologists Debra Lieberman and Carlton Patrick.
Why do we consider incest wrong, even when it occurs between consenting adults unable to have children? Why are words that gross us out more likely to be deemed “obscene” and denied the protection of the First Amendment? In a world where a gruesome photograph can decisively influence a jury and homosexual behavior is still condemned by some as “unnatural,” it is worth asking: is our legal system really governed by the power of reason? Or do we allow a primitive human emotion, disgust, to guide us in our lawmaking?
In Objection, psychologists Debra Lieberman and Carlton Patrick examine disgust and its impact on the legal system to show why the things that we find stomach-turning so often become the things that we render unlawful. Shedding light on the evolutionary and psychological origins of disgust, the authors reveal how ancient human intuitions about what is safe to eat or touch, or who would make an advantageous mate, have become co-opted by moral systems designed to condemn behavior and identify groups of people ripe for marginalization. Over time these moral stances have made their way into legal codes, and disgust has thereby served as the impetus for laws against behaviors almost universally held to be “disgusting” (corpse desecration, bestiality) – and as the implicit justification for more controversial prohibitions (homosexuality, use of pornography). Written with a critical eye on current events, Lieberman and Patrick build a case for a more reasoned approach to lawmaking in a system that often confuses “gross” with “wrong.”