INTRODUCTION: REASON AND THE PASSIONS i. Philosophy? This same philosophy is a good horse in the stable, but an arrant jade on a journey. ...

Incisively and stylishly written, this book constitutes an open challenge to reconsider the fundamental question of the relationship of law to society.

Retributive emotions and behavior are thought to be adaptive for their role in improving social coordination. However, since retaliation is generally not in the short-term interests of the individual, rational self-interest erodes the motivational link between retributive emotions and the accompanying adaptive behavior. I argue that two different sets of norms have emerged to reinforce this link: (1) norms about honor and (2) norms about moral responsibility and desert. I observe that the primary difference between these types of retribution motivators (...) lies in where the normative focus is placed after an offense. In the first form of retribution, the normative focus is on the offended party. In the second, it is on the offender. Next, I show how each class of norms is well tailored to the particular features of the environment in which these forms of retributive behavior emerge. Finally, I consider some philosophical implications of these observations. I suggest that my account, if correct, would pose tough challenges for contemporary philosophical theories of moral responsibility and punishment. (shrink)

This essay examines Martha Nussbaum's prescription for tempering retribution with mercy in the capital sentencing process. Nussbaum observes that the operation of retribution in the ancient world resulted in harsh and indiscriminate punishment without regard to the particularities of the offender and his crime. In the interest of mercy, Nussbaum advocates the use of the novel as a model for a more compassionate sentencing process. An examination of Nussbaum's ``novel prescription'' reveals that the retribution that operates in the modern criminal (...) law, and in the Supreme Court's capital sentencing jurisprudence, already accommodates the values of justice –individuation, particularization, and proportionality – that are characteristic of the mercy tradition. Moreover, the rich narrative approach that Nussbaum favors is by no means congenial to merciful punishment. Because the particularistic detail of the novel form is not confined to the sympathetic portrayal of the defendant, the emotionalism that Nussbaum urges encompasses as well emotional details about the characteristics of the defendant's victim. Such victim impact evidence is consistent with the novel form, but is unlikely to promote merciful judgment. Instead, the details of victim impact evidence can be expected to exacerbate a sentencing authority's inclination to judge a capital defendant harshly. The novel thus provides a poor model for the capital sentencing process because it fosters the sort of unchecked emotionalism that undermines the rational decision making that the Supreme Court has sought to achieve. (shrink)

This essay examines Martha Nussbaum's prescription fortempering retribution with mercy in the capitalsentencing process. Nussbaum observes that theoperation of retribution in the ancient world resultedin harsh and indiscriminate punishment without regardto the particularities of the offender and his crime. In the interest of mercy, Nussbaum advocates the useof the novel as a model for a more compassionatesentencing process. An examination of Nussbaum's``novel prescription'' reveals that the retribution thatoperates in the modern criminal law, and in theSupreme Court's capital sentencing jurisprudence,already accommodates (...) the values of justice –individuation, particularization, and proportionality– that are characteristic of the mercy tradition. Moreover, the rich narrative approach that Nussbaumfavors is by no means congenial to mercifulpunishment. Because the particularistic detail of thenovel form is not confined to the sympatheticportrayal of the defendant, the emotionalism thatNussbaum urges encompasses as well emotional detailsabout the characteristics of the defendant's victim. Such victim impact evidence is consistent with thenovel form, but is unlikely to promote mercifuljudgment. Instead, the details of victim impactevidence can be expected to exacerbate a sentencingauthority's inclination to judge a capital defendantharshly. The novel thus provides a poor model for thecapital sentencing process because it fosters the sortof unchecked emotionalism that undermines the rationaldecision making that the Supreme Court has sought toachieve. (shrink)

The paper seeks to contribute to the transitional justice literature by overcoming the Democracy v. Justice debate. This debate is normatively implausible and prudentially self-defeating. Normatively, transitional justice will be conceptualised as an imperative of democratic equal concern. Prudentially, it can prevent further violence and provide an opportunity for initiating processes of democratic emotional socialisation. The resentment and indignation animating transitions should be acknowledged as markers of a sense of justice. As such, they can help the reproduction of democracy. However, (...) their public expression must be institutionally filtered through democratic norms. The consistent institutional instantiation of equal respect can educate and recuperate negative emotions for democracy. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Diacritics 32.3-4 (2002) 33-59 [Access article in PDF] Amnesty or Impunity? A Preliminary Critique of the Report of the Truth and Reconciliation Commission of South Africa (TRC) Mahmood Mamdani The Truth and Reconciliation Commission of South Africa was the fruit of a political compromise whose terms both made possible the Commission and set the limits within which it would work. These limits, in turn, defined the space available to (...) the Commission to interpret its terms of reference and define its agenda. This paper takes the compromise legislation that set up the TRC as a historical given and focuses attention on the TRC's interpretation of its terms of reference.The TRC claimed to be different from its predecessors, whether in Latin America or Eastern Europe. It would practice neither impunity nor vengeance. It was therefore determined to avoid two pitfalls: on the one hand, reconciliation becoming an unprincipled embrace of political evil and, on the other hand, a pursuit of justice so relentless as to turn into revenge. To do so, the Commission was determined to address both "victims" and "perpetrators," not just one or the other.This double determination was first written into the interim constitution that paved the way for the legislation that set up the TRC. First, there would be no blanket amnesty. Amnesty would be conditional. It would not be a group amnesty. Every perpetrator would have to be identified individually, and would have to own up to his or her guilt—the truth—before receiving amnesty from legal prosecution. Second, any victim who is so acknowledged would give up the right to prosecute perpetrators in courts of law. Justice for the victim would thus not be criminal but restorative: acknowledgment would be followed by reparations. In sum, individual amnesty for the perpetrator, truth for the society, and acknowledgement and reparations for the victim—this was the pact built into the legislation that set up the TRC.Since the Act did not clearly define "victim," however, the definition of "perpetrator" was unclear as well. The task of defining "victim" and "perpetrator" was left to the Commission and was the single most important decision that determined the scope and depth of the Commission's work. Without a comprehensive acknowledgment of victims of apartheid, there would be only a limited identification of perpetrators and only a partial understanding of the legal regime that made possible the "crime against humanity." From this perspective, the paper identifies three key limitations in the Commission's Report.First, the TRC individualized the victims of apartheid. Though it acknowledged apartheid as a "crime against humanity" which targeted entire communities for ethnic and racial policing and cleansing, the Commission majority was reluctant to go beyond the formal acknowledgment. The Commission's analysis reduced apartheid from a relationship between the state and entire communities to one between the state and [End Page 33] individuals. Where entire communities were victims of gross violations of rights, the Commission acknowledged only individual victims. If the "crime against humanity" involved a targeting of entire communities for racial and ethnic cleansing and policing, individualizing the victim obliterated this particular—many would argue central—characteristic of apartheid. Limiting the definition of harm and remedy to individuals center-staged political activists as victims of apartheid, as indeed happened with the victim hearings. The consequence was to narrow the TRC perspective to a political reconciliation between state agents and political activists, individual members of a fractured political elite, rather than the "national unity and reconciliation" mandated by the legislation that set it up. To pursue its actual mandate, the TRC needed to broaden its perspective: to work for a social reconciliation between perpetrators and victims required that the relationship between the state and the entire South African people be addressed.Second, by focusing on individuals and obscuring the victimization of communities, the TRC was unable to highlight the bifurcated nature of apartheid as a form of power that governed natives differently from non-natives. If the apartheid state spoke the language of rights to... (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Diacritics 32.3-4 (2002) 33-59 [Access article in PDF] Amnesty or Impunity? A Preliminary Critique of the Report of the Truth and Reconciliation Commission of South Africa (TRC) Mahmood Mamdani The Truth and Reconciliation Commission of South Africa was the fruit of a political compromise whose terms both made possible the Commission and set the limits within which it would work. These limits, in turn, defined the space available to (...) the Commission to interpret its terms of reference and define its agenda. This paper takes the compromise legislation that set up the TRC as a historical given and focuses attention on the TRC's interpretation of its terms of reference.The TRC claimed to be different from its predecessors, whether in Latin America or Eastern Europe. It would practice neither impunity nor vengeance. It was therefore determined to avoid two pitfalls: on the one hand, reconciliation becoming an unprincipled embrace of political evil and, on the other hand, a pursuit of justice so relentless as to turn into revenge. To do so, the Commission was determined to address both "victims" and "perpetrators," not just one or the other.This double determination was first written into the interim constitution that paved the way for the legislation that set up the TRC. First, there would be no blanket amnesty. Amnesty would be conditional. It would not be a group amnesty. Every perpetrator would have to be identified individually, and would have to own up to his or her guilt—the truth—before receiving amnesty from legal prosecution. Second, any victim who is so acknowledged would give up the right to prosecute perpetrators in courts of law. Justice for the victim would thus not be criminal but restorative: acknowledgment would be followed by reparations. In sum, individual amnesty for the perpetrator, truth for the society, and acknowledgement and reparations for the victim—this was the pact built into the legislation that set up the TRC.Since the Act did not clearly define "victim," however, the definition of "perpetrator" was unclear as well. The task of defining "victim" and "perpetrator" was left to the Commission and was the single most important decision that determined the scope and depth of the Commission's work. Without a comprehensive acknowledgment of victims of apartheid, there would be only a limited identification of perpetrators and only a partial understanding of the legal regime that made possible the "crime against humanity." From this perspective, the paper identifies three key limitations in the Commission's Report.First, the TRC individualized the victims of apartheid. Though it acknowledged apartheid as a "crime against humanity" which targeted entire communities for ethnic and racial policing and cleansing, the Commission majority was reluctant to go beyond the formal acknowledgment. The Commission's analysis reduced apartheid from a relationship between the state and entire communities to one between the state and [End Page 33] individuals. Where entire communities were victims of gross violations of rights, the Commission acknowledged only individual victims. If the "crime against humanity" involved a targeting of entire communities for racial and ethnic cleansing and policing, individualizing the victim obliterated this particular—many would argue central—characteristic of apartheid. Limiting the definition of harm and remedy to individuals center-staged political activists as victims of apartheid, as indeed happened with the victim hearings. The consequence was to narrow the TRC perspective to a political reconciliation between state agents and political activists, individual members of a fractured political elite, rather than the "national unity and reconciliation" mandated by the legislation that set it up. To pursue its actual mandate, the TRC needed to broaden its perspective: to work for a social reconciliation between perpetrators and victims required that the relationship between the state and the entire South African people be addressed.Second, by focusing on individuals and obscuring the victimization of communities, the TRC was unable to highlight the bifurcated nature of apartheid as a form of power that governed natives differently from non-natives. If the apartheid state spoke the language of rights to... (shrink)

A perfectly matched layer (PML) absorbing material composed of a uniaxial anisotropic material is presented for the truncation of finite-difference time-domain (FDTD) lattices. It is shown that the uniaxial PML material formulation is mathematically equivalent to the perfectly matched layer method published by Berenger (see J. Computat. Phys., Oct. 1994). However, unlike Berenger's technique, the uniaxial PML absorbing medium presented in this paper is based on a Maxwellian formulation. Numerical examples demonstrate that the FDTD implementation of the uniaxial PML medium (...) is stable, equal in effectiveness as compared to Berenger's PML medium, while being more computationally efficient. (shrink)

I criticize an increasingly popular set of arguments for the justifiability of punishment. Some philosophers try to justify punishment by appealing to what Peter Strawson calls the reactive attitudes – emotions like resentment, indignation, remorse and guilt. These arguments fail. The view that these emotions commit us to punishment rests on unsophisticated views of punishment and of these emotions and their associated behaviors. I offer more sophisticated accounts of punishment, of these emotions and of their associated behaviors that are consistent (...) with Abolitionism, the view that punishment is unjustified. (shrink)

I argue that any successful account of permissible self- defence must be action-guiding, or practical . It must be able to inform people’s deliberation about what they are permitted to do when faced with an apparent threat to their lives. I argue that this forces us to accept that a person can be permitted to use self-defence against Apparent Threats: characters whom a person reasonably, but mistakenly, believes threaten her life. I defend a hybrid account of self-defence that prioritises an (...) agent’s subjective perspective. I argue that it is sufficient to render the use of defence permissible if an agent reasonably believes that (a) she is morally innocent, and (b) if she does not kill this person, then they will kill her. I argue that the correct account of self-defence must distinguish between whether an agent is permitted to inflict harm, and whether the target is liable to bear that harm. (shrink)

In this urbane and witty book, Ronald de Sousa disputes the widespread notion that reason and emotion are natural antagonists.

This is a critical study of Martha Nussbaum's Hiding from Humanity. Central to Nussbaum's book are arguments against society's or the state's using disgust and shame to forward the aims of the criminal law. Patrick Devlin's appeal to the common man's disgust to determine what acts of customary morality should be made criminal is an example of how society might use disgust to forward the aims of the criminal law. The use of so-called shaming penalties as alternative sanctions to imprisonment (...) is an example of how society might use shame for this purpose. I argue that despite Nussbaum's own view to the contrary, her arguments against such uses of disgust and shame are best understood as criticisms of programs of conservative political philosophy like Devlin's and not of the emotions themselves. (shrink)

This is a critical study of Martha Nussbaum’s Hiding from Humanity. Central to Nussbaum’s book are arguments against society’s or the state’s using disgust and shame to forward the aims of the criminal law. Patrick Devlin’s appeal to the common man’s disgust to determine what acts of customary morality should be made criminal is an example of how society might use disgust to forward the aims of the criminal law. The use of so-called shaming penalties as alternative sanctions to imprisonment (...) is an example of how society might use shame for this purpose. I argue that despite Nussbaum’s own view to the contrary, her arguments against such uses of disgust and shame are best understood as criticisms of programs of conservative political philosophy like Devlin’s and not of the emotions themselves. (shrink)

I examine emotional reactions to wrongdoing to determine whether they offer support for retributivism. It is often thought that victims desire to see their victimizer suffer and that this reaction offers support for retributivism. After rejecting several attempts to use different theories of emotion and different approaches to using emotions to justify retributivism, I find that, assuming a cognitive theory of emotion is correct, emotions can be used as heuristic guides much as suggested by Michael Moore. Applying this method to (...) the actual emotional reactions of victims' relatives, however, does not find support for retributivism. Instead, it suggests punishment should be understood as part of a process of recovery with a complex set of demands. Retributive concerns can play a role in the process, but they don't have the priority that retributivism requires. (shrink)

abstract I examine emotional reactions to wrongdoing to determine whether they offer support for retributivism. It is often thought that victims desire to see their victimizer suffer and that this reaction offers support for retributivism. After rejecting several attempts to use different theories of emotion and different approaches to using emotions to justify retributivism, I find that, assuming a cognitive theory of emotion is correct, emotions can be used as heuristic guides much as suggested by Michael Moore. Applying this method (...) to the actual emotional reactions of victims’ relatives, however, does not find support for retributivism. Instead, it suggests punishment should be understood as part of a process of recovery with a complex set of demands. Retributive concerns can play a role in the process, but they don't have the priority that retributivism requires. (shrink)

Retribution is often dismissed as augmenting the initial harm done, rather than ameliorating it. This criticism rests on a crude view of retribution. In our actual practice in informal situations and in the workings of the reactive (properly called 'retributive') sentiments, retribution is true to the gravity of wrongdoing, but does aim to ameliorate it. Through wrongdoing, offenders become alienated from the moral community: their actions place their commitment to its core values in doubt. We recognize this status in blaming, (...) a withdrawal of civility and solidarity which symbolizes the moral distance wrongdoers have put between them and us. Atonement is the means by which they make themselves 'at one' again with the community. Retribution is properly understood as a cycle which recognizes disruption and alienation, but aims at reconciliation. (shrink)

abstract Martha Nussbaum's concern is to limit the role that emotions can legitimately play in the definition of the criminal law. She would allow nuisance laws to curtail the occasioning of disgust but only disgust of a certain kind. Problems arise for her account when she extends this analysis to the prevention of offensiveness. Unavoidable is an evaluation of those beliefs subscription to which explains the taking of offence. Hence the principal problem for a liberalism of the kind Nussbaum defends (...) is how to combine Mill's harm principle with a Rawlsian understanding of the reasonableness of belief. (shrink)

Seven essays delivered as lectures in Britain and U.S.A.

Most current talk of forgiveness and reconciliation in the aftermath of collective violence proceeds from an assumption that forgiveness is always superior to resentment and refusal to forgive. Victims who demonstrate a willingness to forgive are often celebrated as virtuous moral models, while those who refuse to forgive are frequently seen as suffering from a pathology. Resentment is viewed as a negative state, held by victims who are not "ready" or "capable" of forgiving and healing. Resentment's Virtue offers a new, (...) more nuanced view. Building on the writings of Holocaust survivor Jean Améry and the work of the South African Truth and Reconciliation Commission, Thomas Brudholm argues that the preservation of resentment can be the reflex of a moral protest that might be as permissible, humane or honorable as the willingness to forgive. Taking into account the experiences of victims, the findings of truth commissions, and studies of mass atrocities, Brudholm seeks to enrich the philosophical understanding of resentment. (shrink)

Moral Repair examines the ethics and moral psychology of responses to wrongdoing. Explaining the emotional bonds and normative expectations that keep human beings responsive to moral standards and responsible to each other, Margaret Urban Walker uses realistic examples of both personal betrayal and political violence to analyze how moral bonds are damaged by serious wrongs and what must be done to repair the damage. Focusing on victims of wrong, their right to validation, and their sense of justice, Walker presents a (...) unified and detailed philosophical account of hope, trust, resentment, forgiveness, and making amends - the emotions and practices that sustain moral relations. Moral Repair joins a multidisciplinary literature concerned with transitional and restorative justice, reparations, and restoring individual dignity and mutual trust in the wake of serious wrongs. (shrink)

"This book discusses the vast and complex range of choices in between blanket amnesty and total accountability through criminal justice, and does so with ...

Emotions shape the landscape of our mental and social lives. Like geological upheavals in a landscape, they mark our lives as uneven, uncertain and prone to reversal. Are they simply, as some have claimed, animal energies or impulses with no connection to our thoughts? Or are they rather suffused with intelligence and discernment, and thus a source of deep awareness and understanding? In this compelling book, Martha C. Nussbaum presents a powerful argument for treating emotions not as alien forces but (...) as highly discriminating responses to what is of value and importance. She explores and illuminates the structure of a wide range of emotions, in particular compassion and love, showing that there can be no adequate ethical theory without an adequate theory of the emotions. This involves understanding their cultural sources, their history in infancy and childhood, and their sometimes unpredictable and disorderly operations in our daily lives. (shrink)

In the course of that critical study he discusses the work of many of the most influential lawyers and philosophers of the era, including Isaiah Berlin, Richard ...

Philosophers since Aristotle have explored emotion, and the study of emotion has always been essential to the love of wisdom. In recent years Anglo-American philosophers have rediscovered and placed new emphasis on this very old discipline. The view that emotions are ripe for philosophical analysis has been supported by a considerable number of excellent publications. In this volume, Robert Solomon brings together some of the best Anglo-American philosophers now writing on the philosophy of emotion, with chapters from philosophers who have (...) distinguished themselves in the field of emotion research and have interdisciplinary interests, particularly in the social and biological sciences. The reader will find a lively variety of positions on topics such as the nature of emotion, the category of "emotion," the rationality of emotions, the relationship between an emotion and its expression, the relationship between emotion, motivation, and action, the biological nature versus social construction of emotion, the role of the body in emotion, the extent of freedom and our control of emotions, the relationship between emotion and value, and the very nature and warrant of theories of emotion. In addition, this book acknowledges that it is impossible to study the emotions today without engaging with contemporary psychology and the neurosciences, and moreover engages them with zeal. Thus the essays included here should appeal to a broad spectrum of emotion researchers in the various theoretical, experimental, and clinical branches of psychology, in addition to theorists in philosophy, philosophical psychology, moral psychology, and cognitive science, the social sciences, and literary theory. (shrink)

In "Upheavals of Thought", Martha Nussbaum offers a theory of the emotions. She argues that emotions are best conceived as thoughts, and she argues that emotion-thoughts can make valuable contributions to the moral life. She develops extensive accounts of compassion and erotic love as thoughts that are of great moral import. This paper seeks to elucidate what it means, for Nussbaum, to say that emotions are forms of thought. It raises critical questions about her conception of the structure of emotion, (...) and about her conception of compassion, in particular. Finally, the paper seeks to show how analyzing the structure, as well as the moral value, of the emotions ultimately requires entering the realm of religious ethics. (shrink)

The doyen of living English philosophers, by these reflections, took hold of and changed the outlook of a good many other philosophers, if not quite enough. He did so, essentially, by assuming that talk of freedom and responsibility is talk not of facts or truths, in a certain sense, but of our attitudes. His more explicit concern was to look again at the question of whether determinism and freedom are consistent with one another -- by shifting attention to certain personal (...) rather than moral attitudes, first of all gratitude and resentment. In the end, he arrived at a kind of Compatibilist or, as he says, Optimist conclusion. That is no doubt a recommendation but not the largest recommendation of this splendidly rich piece of philosophy. (shrink)

The contemporary consensus on shame is pessimistic. Three main reasons, all connected with the alleged fact that, in shame, you allow yourself to become the victim of external pressures, appear to motivate this conclusion. First, shame is said to be the emotion of social sanction: when you feel shame, you submit to the judgements of others. Second, shame is supposed to be triggered by the way you look in the eyes of others. Thirdly, and as a result, shame allegedly motivates (...) at best withdrawal from others, at worse violence towards them. In this paper, we scrutinize these claims and argue that, while each of them contains a grain of truth, they fail to justify shame’s bad reputation. (shrink)

This book focuses on the degree to which certain moral and legal doctrines are rooted in specific passions that are then institutionalised in the form of criminal law. A philosophical analysis is developed of the following questions: when, if ever, should hatred be overcome by sympathy or compassion? What are forgiveness and mercy and to what degree do they require - both conceptually and morally - the overcoming of certain passions and the motivation by other passions? If forgiveness and mercy (...) indeed are moral virtues, what role, if any, should they play in the law? (shrink)

How should we understand the emotional rationality? This first part will explore two models of cognition and analogy strategies, test their intuition about the emotional desire. I distinguish between subjective and objective desire, then presents with a feeling from the "paradigm of drama" export semantics, here our emotional repertoire is acquired all the learned, and our emotions in the form of an object is fixed. It is pretty well in line with the general principles of rationality, especially the lowest reasonable (...) principles. Turned to the second part of this side of reasonable. I will inquire how emotional beliefs, desires, and behaviors contribute to the rationality. I will present a very general biological hypothesis: emotions by controlling highlights the characteristics of perception and reasoning, so that we remove the difficulties due in particular to lead to paralysis; they are being simulated by a simplified perception of information, thus limiting our practice and cognitive choice. How are we to understand emotional or axiological rationality? I pursue analogies with both the cognitive and the strategic models, testing them against intuitions about emotional desires. We distinguish two different classes of desires, the subjective and the objective, and propose that emotions have a semantics that derives from "paradigmatic scenarios", in terms of which our emotional repertoire is learned and the formal objects of our emotions fixed. This fits in well with emerging facts about how our emotional capacities develop, and it can also be squared with the general principles of rationality, particularly minimal rationality. In the second part, I return to the perspective of rationality. I ask how emotions contribute to the rationality of beliefs, desires, and behavior. I proffer a very general biological hypothesis: Emotions spare us the paralysis potentially induced by a particular predicament by controlling the salience of features of perception and reasoning; they temporarily mimic the informational encapsulation of perception and so circumscribe our practical and cognitive options. (shrink)