In those cases, at least, I was thinking of the proper emotion as painful self- castigation. These two cases, however, were not standard moral dilemmas, since the genesis of both dilemmas involved serious moral error, not forced on anyone by circumstances. So what I said about those cases, while certainly inconsistent with what I have said earlier in this chapter about the proper response to a betrayal, has no clear implications for the case of involuntary dilemma we are considering here. Finally, in my more recent paper on cost- benefit analysis, I used the word
“guilt” a couple of times, but in the sense of accountability, and a duty to make reparations; I did not imply that the emotion ought to be self- punitive anger.
61. See Walzer (1973).
62. In short, Nussbaum (1986) and (2000a) both have the right idea, but (1990) wan-dered into error.
Chapter 5
1. Seneca, Moral Epistles 12.1– 3, my translations from the Oxford Classical Text. The term is deliciolum tuum, literally, “little delight,” which signifies considerable intimacy. (Robin Campbell’s Penguin version says “your pet playmate.”)
2. Seneca lived from c. 4 BCE to 65 CE. The Moral Epistles were very likely published in 63– 64, and composed shortly before. Seneca does represent himself in the letters as in ill health, whether hypochondriacally, or really, or just for philosophical effect. Since he dies from politically commanded suicide shortly thereafter, after joining a conspiracy to overthrow Nero, it is difficult to assess the state of his health, apart from noting that Greek philosophers typically enjoyed long lives, in that salubrious climate. Ages at death: Socrates 70 (murdered), Isocrates 107, Plato 80, Aristotle (who had a bad stomach) 61, Zeno the Stoic 72, Cleanthes (a boxer and the second head of the Stoa) 100, Chrysippus 73, and Cicero 63 (murdered). When I delivered the Locke Lectures in 2014, I had just turned 67.
3. Lucilius is a fiction loosely based on a real Roman eques, but it’s important to see that the collection uses both self and other as philosophical exempla, and should not be read as straight biography or autobiography. See Griffin’s definitive Seneca: A Philosopher in Politics (1976). The collection is arranged with a fictive idea of philosophical progress, so the early letters represent Lucilius as less whole-heartedly Stoic than do the later letters.
4. I’m boringly explicit about this because I’ve been misunderstood before. I did the same thing in Nussbaum (2001), which opens with an account of my grief at the time of my mother’s death. As with Seneca’s readers, so with mine: this was widely understood as intimate autobiography, by people who had no reason to
know whether any of it was at all true, apart from the obvious fact that I did have a mother. As it happens, such is the poverty of my imagination, the anecdotes in this chapter (like a fair amount of Upheavals) are all based on things that happened,
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and anyone planning to grab my suitcase had better beware. But it really doesn’t matter: my purpose, like his, is to remind readers of the sort of thing that provokes everyday anger, and to get them thinking about their own examples.
5. Seneca, De Ira III.38.
6. The Greeks made a big mistake here, since they had no public prosecutor. The bereaved individual would have to bring the prosecution. We shall see why this is a bad idea in chapter 6.
7. In what follows I typically cite the Procope (1995) translation, though I make occasional alterations for greater literalness.
8. Chrysippus died around 207 BCE, thus more than two hundred years before
Seneca’s birth.
9. See Fillion- Lahille (1984). Not all the works were Stoic: we possess fragments of Philodemus’s (Epicurean) On Anger. Seneca himself knows a work on anger by the middle Stoic Posidonius, as well as (no doubt) Chrysippus’s work.
10. See Nussbaum, “Erōs and Ethical Norms: Philosophers Respond to a Cultural Dilemma,” in Nussbaum and Sihvola (2002, 55– 94). The love in question is imagined as that of an older male for a younger male who does not feel erotic love in return, in keeping with well- established norms of Greek courtship. Erōs is defined by Zeno the Stoic as “an attempt to form a relationship of friendly love, inspired by the beauty of young men in their prime.” In Tusculan Disputations, Cicero makes fun of them, suggesting that they make this exception to their rule about avoiding strong passions only because of pervasive Greek homoeroticism, but Craig
Williams’s magisterial Roman Homosexuality (1999) shows convincingly that Roman norms were very similar. And though Cicero never seems to have had a sexual
relationship with a man, his best friend Atticus was well known for this practice.
11. Again, though, that isn’t to say that it could not be fictional— or borrowed from some other author whose pet peeve it was.
12. Seneca does not oppose capital punishment on principle; he merely suggests that it is often misapplied because of emotion.
13. See also Harriss (2001, 415) on ancient examples of simulated anger.
14. “It’s really a lot better to be courteous.”
15. See Letter 47.
16. Trajan and Marcus both ruled for nineteen years and died of illness; Augustus ruled for forty- one years.
17. World Peace (now retired from the NBA and playing in Italy), who credits his psychiatrist with his share in the Lakers’ NBA championship, crusades for the Mental Health in Schools Act; he also records bedtime stories for children and works with PETA against animal abuse. A related “track” away from anger is
prominent in the career of ex- Bears wide receiver Brandon Marshall, who now
crusades energetically for the Borderline Personality Disorder Foundation. His earlier angry phase included several suspensions for rampages of various sorts, and culminated in the famous brawl in 2004, during which he assaulted several fans as well as players. He was also convicted of domestic violence in 2007 and suspended again. In October 2015 Marshall, now playing for the New York Jets, admitted on national TV that he had quarreled angrily with a teammate after a bad loss. But, he said, “we talked it out and we love each other.”
18. Those of us, that is, who are lucky enough to have work that is meaningful and rewarding.
19. Seneca, translated in Nussbaum (2010c).
20. See Martin (2010).
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Notes to Pages 165–175
21.
Harris v. Forklift Systems, Inc. , 114 S. Ct. 367 (1993).
22.
Baskerville v. Culligan, 50 F. 3d 428 (1995), where the opinion by Judge Richard Posner holds that the offensive incidents were silly and just not concentrated or grave enough to constitute sexual harassment.
23. Scanlon (2013); see Appendix B.
Chapter 6
1. See the outstanding discussion in Allen (2000; 1999).
2. Allen gives an excellent account of anger as disease, but she then offers a defense, to me unconvincing, of the structure of Athenian prosecution as a good way of addressing the problem of deformed social relations.
3. See “Socrates’ Rejection of Retaliation,” in Vlastos (1991, 179– 99). His primary sources are early dialogues of Plato, particularly the Crito.
4. Although it is Protagoras and not Socrates who says this, he is presented as a sympathetic figure, and it is likely that Plato endorses this statement.
5. Trans. Vlastos (1991).
6. See Allen (1999).
7. Of course this is a matter of constitutional interpretation, where both civil rights and the rights of women and gays and lesbians are concerned. And there are
many matters in which it could be argued that the U.S. Constitution still admits fundamental injustice (in the socioeconomic realm). But one could also argue, with Franklin Delano Roosevelt, that core commitments of the nation entail the recognition of social and economic entitlements.
8. See Nussbaum (2013).
9. For example Nussbaum (2000b; 2006; 2010a).
10. For caveats about the role of the notion of dignity, which,
in my view, cannot be defined apart from a range of other notions and principles, see Nussbaum
(2010a).
11. Certainly it is so understood by Amartya Sen, who orients his version of the
“capabilities approach” with reference to Mill, and who has gone to some pains to argue that consequentialism can accommodate rights as intrinsic goods (see Sen 1982). One way in which my normative political view differs from other forms
of consequentialism is in its limits: for I introduce the capabilities approach only as a basis for political principles in a pluralistic society, not as a comprehensive doctrine of the good or flourishing life, whereas most consequentialists portray their views as comprehensive doctrines. That difference, however, plays no role in the arguments to come.
12. Rawls (1986), “The Idea of an Overlapping Consensus.” On Rawls’s notion, see my introduction in Comim and Nussbaum (2014).
13. See Levmore and Nussbaum (2014), Introduction.
14. An especially fascinating reflection on these complexities is Wallace Stegner’s novel Angle of Repose (1971), an account of a woman from the talkative East who falls in love with and marries a strong, silent man at home in the (nineteenth-century) West: see the reflections on the connections between this tragic story and American law in retired judge Howard Matz’s paper in the Levmore-Nussbaum (2014) collection. See also, in the same collection, Saul Levmore,
“Snitching, Whistleblowing, and ‘Barn Burning’: Loyalty in Law, Literature,
and Sports,” a reading of Faulkner’s story and of the “unmanly” figure of the
“snitch” in American law and literature, and Nussbaum, “Jewish Men, Jewish
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Lawyers: Roth’s ‘Eli, the Fanatic’ and the Question of Jewish Masculinity in American Law,” arguing that (as Roth’s Tzuref insists) law is quintessentially Jewish, meaning based upon talk rather than “manly” self- assertion and on compassion rather than outraged honor.
15. On some of the changes over time, away from status offense (particularly male honor) to real injury, see Kahan and Nussbaum (1996).
16. William Ian Miller has argued that even in early “honor” cultures, retributive competition over status was socially disciplined in such a way that it led to the bargaining table. See Miller (1990).
17. See the excellent sociolinguistic study by Coyle (2013, ch. 3).
18. See Coyle (2013, ch. 3).
19. See Allen (1999) and Walker (2006).
20. See Walker (2006).
21. See Mackie (1982).
22. Bentham (1948, 177).
23. Santora (2013).
24. CBS News (2012).
25. I provide a summary of Heckman’s results and a bibliography of some of his most important contributions in the appendix to Nussbaum (2010a).
26. For the initial statement, see Zorn (2013); for the concession, Huffington Post (2013).
27. See Coyle (2013) generally for the importance of our terminology in shaping thought.
28. See Young (2011).
29. Of the many well- done overviews of the topic, one that covers the terrain especially well is Tasioulas (2010, 680– 91). It will be evident that I don’t agree with everything in this piece, but its clarity is admirable.
30. See Morris (1968).
31. Moore (1995).
32. A related point is made by Duff: Morris’s view treats crimes such as rape and murder as acts that would not be wrong but for the existence of the criminal
law: see Duff (2001, 22).
33. See Jean Hampton, in Hampton and Murphy (1988), who calls the position
“strange— even repulsive” (115), and she reports that her coauthor Murphy calls it “creepy” (116).
34. Moore (1995, 98– 99).
35. Moore (1995, 98).
36. Note that he holds that moral desert is sufficient for punishment, hence that non-legal as well as legal wrongdoing warrants retribution.
37. Duff (2011) and Markel (2011). Both authors have published copiously on this question, but these recent articles provide succinct summaries of their positions.
Markel was murdered outside of his Florida home in July 2014. His death remains a mystery.
38. Duff (2001, 28).
39. In this respect his view closely resembles Hampton’s: see below.
40. I owe the phrase “talk is cheap” to my colleague Richard McAdams. Prominent examples of such views, apart from Duff’s, include Bennett (2001); Hampton
(1984); and Primoratz (1989). For a critique of such views, see Boonin (2008).
41. I owe this phrase, too, to Richard McAdams. Duff recognizes that it is so far an open question what conduct on the part of the state communicates censure, and
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Notes to Pages 191–193
it doesn’t automatically follow that “hard treatment” does so best. He justifies a focus on ex post hard treatment by a picture according to which punishment is a “secular penance.” But apart from the question whether incarceration is
reasonably seen in these quasi- religious terms, we need to ask why it isn’t best to intervene before the sinner sins, rather than to wait for sin and then impose penance.
42. Hampton (1984, 213). She adds that whereas retributivism “understands punishment as performing the rather metaphysical task of ‘negating the wrong’
and ‘reasserting the right,’ ” punishment aims at a ‘concrete moral goal,” which includes benefiting both criminals and society. And she argues plausibly that this approach honors the need of victims to have their wrongs acknowledged.
43. In Hampton and Murphy (1988), published several years later, Hampton
explores sympathetically, and appears to endorse, a different position, a form of retributivism. She explores two distinct ways of understanding “the retributive idea.” One, which understands punishment as “vindicating value through
protection,” appears similar to the view she has previously endorsed, and is
hard to understand as a form of retributivism, since it is an expressive statement with a forward- looking goal. The other idea, which clearly is a form of retributivism, is that of punishment as a “defeat” of the wrongdoer by the victim. Now if the thought were put in general terms, viz., society is stating that wrongdoing is unacceptable and will be inhibited, it would be a form of her earlier educational/ expressive position. But she appears to understand it, instead, in personal terms: a particular victim defeats a particular wrongdoer by ensuring the punishment of the latter. Besides being an inaccurate way to think about
criminal punishment (surely the state, not the victim, punishes), it seems to raise all the problems of the lex talionis: for how, exactly, does the infliction of pain on an individual constitute a victory for someone who has suffered rape or some
other crime? By the bare assertion of the victim’s worth? But then it collapses into the first (expressive, general) construal. But if Hampton really means to say that the dignity of V rises as the pain of O intensifies, this does seem to be a form of the lex talionis, and subject to my critique. Hampton’s chapter is exploratory, and she never announces commitment to either form of the idea, nor does she
repudiate her earlier view.
44. On the fact that consequentialism can accommodate the importance of rights as part of the consequence set, see Sen (1982); see also Nussbaum (2010a).
45. See Nussbaum (2010a).
46. Some reformists would urge avoidance of the term “wrongdoing,” as too closely linked with the demonization of offenders. I disagree. Coyle certainly shows how the term “evil” functions to demonize offenders and to deflect attention away from non- punitive strategies for crime prevention (Coyle 2013, ch. 5); but the term
“wrongdoing” seems to me not to have the overcharged valence of “evil.” It pertains to an act, not the entirety of the person, and it simply signals what is true: that we ought to distinguish between the intentional acts of
human beings and the
depredations of wild animals or the accidents of nature. However, my intuitions are not those of Mackie (1982), who holds that “calling for a hostile response” is part of the concept of “wrongdoing.” To the extent that one agrees with Mackie’s linguistic intuitions, which I believe to be unusual, one should become skeptical of the term. Will Jefferson has informed me that “Nonviolent Communication,”
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an approach to conflict resolution started by Marshall Rosenberg in the 1960s, and now used throughout the world on many types of issues, holds that moral language must be eliminated from our thinking, and that this is necessary in order to remove anger. I am not convinced. But the position is subtle and deserves more extensive consideration than I can give it here. Jefferson’s D. Phil. thesis will be a significant contribution on this question.
47. See Brooks (2012, ch. 1).
48. See Gewirtz (1998).
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