MORE FURTHER NUSSBAUM

I don’t know how the Universe works, but as I put together the notes for a short series on Nussbaum’s 94-page Harvard review article, I came across a 2004 article in ‘The London Review of Books’* that reviews Nussbaum’s then-recently released book “Hiding From Humanity: Disgust, Shame, and the Law”.

Nussbaum was going for the idea that she didn’t want to see – and it wasn’t ‘liberal’ to make – legislation on the basis of what disgusts and shames folks.

Yes, you might immediately say to yourself: Well, that’s pretty much one’s of the SO Mania’s primary results, intended or not.

By this time it might not surprise you to realize that Nussbaum doesn’t refer to the SO mania or SORNA-type legislation at all. And that simple fact is in itself a most curious matter since the SO laws are surely rooted in much of the feminist-law that Nussbaum is trying mightily to insinuate – as a ‘reform’ – into the heart of American legislation and jurisprudence.

She is trying – think of it what you may – to clear more space for what I think can now be called her Destructive Reconstruction of American culture, and wants to use legislation and jurisprudence to do it. This – without any undertone of misogyny on my part – constitutes far too much of the thrust of ‘governance feminism’. And I say again that this crucial reality has received far too little critical attention for decades and has now burrowed itself verrrrry deeply into all that legislation and jurisprudence.

You may recall that it began – some decades ago – with the effort to do away with such things as American society’s aversion to ‘unwed mothers’ and to what was then called ‘abortion on demand’ but what has now been more tastefully clothed as ‘autonomy’ and the philosophical claim that the heart of the ‘liberal’ (and I am not implying that I am ‘conservative’ here) agenda and of the human being is not just the ability to ‘choose’ or to have totally free ‘choice’ but rather, more nicely, to possess ‘autonomy’.

(And when I use those examples I am not here taking a position on them; but these were some of the ‘wedge issues’ as they might be called.)

So this Post is going to go just a bit into ‘philosophy’.

I know that ‘philosophy’ is a little more than you might expect in an SO-oriented blog Post. But I think that since so much of the Mania is based on Nussbaum’s codification of feminist legal philosophy, and since legal philosophy cannot avoid making philosophical claims about both the human being and human nature and also about the American philosophy of government (and of the Constitution) that underlies legal philosophy … then because of that it would be essential for the SO community to be familiar with these deeper issues that underlie the more pressing and immediate practical concerns so well documented in the main SO sites.

I’d like to help the SO community to A) grasp some of the fundamental geology of important ideas and issues lying beneath the SO Mania itself and B) grasp the fact that what the SO community is doing in regard to the SO Mania itself serves as well a larger purpose in the country’s affairs and in its interest.

I am going deeper than any of the usual SO topics themselves, to the philosophical assumptions that are underneath them. And I will ‘come out’ of this little exploration journey at the SO Mania and the matters that are of urgent interest to the SO community. But matters that are also – as I have always said – of urgent interest to the country, even though media treatment and the general level of public awareness has never gone that deeply. Tire, as I always say, has to be Kicked before We make so large a purchase as Nussbaum wants the country – whether it knows it or not, whether it agrees or not – to make.

And of course the Brits – although they are bethumped by their own ‘postmodern’ problems of philosophy and governance – are able to take a more penetrating and acute stance when they examine things, especially matters that the American media ignore, either out of ignorance or deliberate design.

There has always been a problem with the ‘liberal’ insistence on ‘tolerance’ of any approach or behavior, no matter how much such an approach or behavior might strike people – and Citizens – as repugnant or wrong, or ‘shameful’ or ‘disgusting’ to use Nussbaum’s own terms.

Since the ‘liberal’ position is for Tolerance, than it has to be opposed to Intolerance: you can’t tolerate opposition to what you have shrewdly called Tolerance. You can’t Tolerate Intolerance.

But that is itself Intolerant.

Which is one of the complicated little situations that arise when you start looking carefully at the philosophy – and the philosophical consequences – underlying popular or strongly-advocated political agendas.

(Which is why, once they have stated their agenda and their hopes, revolutionaries don’t really want to waste time on philosophy: sooner or later you’re going to have everybody ‘thinking’ and nobody ‘doing’. And more specifically: they’re not going to be ‘doing what your revolution wants’ and instead they may even find holes in your position that allow them to disagree with your revolutionary agenda and your revolutionary demands. And THAT is the type of problem good revolutionaries never want to allow to start up in the first place; the smart revolutionary wants action, not thinking. Or – at the very least – the smart revolutionary wants everybody to simply accept what the revolution claims is the ‘reality’ of the situation and just stay out of the revolution’s way. Either agree or shut-up, but don’t think if that means you’re going to disagree. Because Disagreement is Intolerance. And worse, Disagreement and Dissent will slow down the rush of the revolution – which to a revolution and to a revolutionary is the unforgivable crime and sin.)

Which is not the way for a deliberative democracy to function.

Or for a mature Citizenry in a Constitutional Republic to conduct their vital role as governors of their government.

So then, a position – called ‘liberal’ but is hell and gone from classical Liberalism – that labels any dissent from or objection to its agenda as Intolerant is already manipulative, in the sense of professional propaganda: the Citizens are not given all of the relevant information about an agenda but instead they are only given the selected bits, and the selected ‘spin’, that will move them to agree.

This propaganda approach is the result of a century’s worth of psychological development into advertising’s effort to figure out how to move people toward purchasing its product. In the early 20th century this stream migrated from commerce and advertising and moved into governmental affairs. The world saw this from the extreme Right in Goebbels’s Nazi propaganda program in support of Hitler’s Reich, and from the extreme Left in Stalin’s and postwar Communism’s increasing sophistication in trying to pass themselves and their system off to Westerners and to the rest of the world as ‘liberation’.

But a State, a government, that declares itself to be ‘neutral’ philosophically, and therefore justified in being ‘tolerant’ of anything, has already taken a philosophical position: it is saying that nothing matters enough for the government to take a position on what the shape of the nation, and of its culture, and of its laws, should be.

And over here, where as I have said the post-1965 game-plan has been to Deconstruct and then Reconstruct the entire American culture and society just the same way that the Beltway did to the Jim Crow South, then the Citizens must be manipulated by the government into not only doing but also thinking Correctly, which is to say ‘according to the new plan for the culture and the society’.

And law is one way of sort of shaping the way Citizens think. It acts like those fences in a stockyard that funnel the cows along to where the stockyard process wants them to go.

And – even more importantly – law has the power to punish those who disagree. A cow that tries to break through the fence at the meatpacker’s is going to get pushed back in. After a while, if the cows are around long enough, they may even ‘internalize’ the fence, such that they will move along those paths even if the fence is taken away.

And that’s the type of New Soviet Man that the Commies were going for: the New Soviet Man (or Woman) would so internalize the revolution’s agenda that s/he would cease all dissent and simply move along the desired paths and think along the desired paths, out of his/her own ‘free will’. This was also Hitler’s idea of ‘the good German’: somebody who would internalize the agenda and willingly go along with it, and never question it (and it’s a testament to the Western European advanced-level of social cooperation that so many Germans for so long went along with things, such that Hitler needed and had far fewer secret-police than Stalin had).

So – getting back to Nussbaum and the problems she poses – the question is how ‘politics’ and your political system handles the unavoidable fact that human beings cannot operate without some sense of moral substance. Humans are and always have been – concerned for the ‘moral’.

And in the West – although humans also demonstrate a stubborn inability to always act in complete accord with their own ideals of what is ‘moral’ and so do their governments – this sense of the ‘moral’ has always been accorded a certain vital importance: There is an Ought as well as an Is in reality, and human beings – and the governments they have – must take into their account of things, not only what Is but what Ought to Be.

A ‘realism’ that claims that for humans there is only what Is, and that what Ought To Be is merely pie-in-the-sky is what Machiavelli was driving at: a government can only act on the basis of the brutal realities of humanity at its worst, even if that then means that sin the process such a government has to immerse itself totally in that dark swamp. In Machiavelli’s vision you were setting yourself up to be a hot lunch if you tried to be ‘nice’.

As if trying to coming to grips and respecting that awesome Ought To Be was simply a matter of ‘being nice’.

It’s more than that. Much more.

Because if the entire Universe, the entire realm of human affairs and human history and even human nature itself, is set up such that there is a Nature to Things and that therefore there is a Way to go about being human that actually helps fulfill that Nature (perhaps even that Purpose) … if THAT is true, then respecting the Ought is not simply a matter of being Nice, but of being in tune with the ultimate reality of existence. As Martin Luther King put it: “the arc of the universe is long, but it bends toward justice”.

What he was saying there was that there is indeed a Nature, an Essence, and even a Purpose to human existence, and that it will reveal itself in human respect for oneself and for others, and that to set yourself up against that Nature and against the Purpose of fulfilling it … is to violate and to oppose the Ultimate Force of that Nature.

It’s like a pilot and an aircraft: there are certain basic laws of aerodynamics and of gravity itself. If you ‘choose’ or if you claim the ‘autonomy’ to fly your plane in opposition to them (say, trying to fly it backwards, or loading it so that it weighs more than the thrust your engines can provide) then you are going to be proven wrong in your ‘choice’ and your assumptions very quickly. If you assume that there are no such laws or that you as a pilot have the power to ignore them … you aren’t going to be in the flying business very long. The Nature of Things (natura rerum in the Latin) will see to that.

There are laws and regulations in flying that are set up by humans and can be changed: the FAA can set up regulations as to what altitudes Westbound and Eastbound aircraft must maintain so as to keep order in the sky; there are company regulations as to the color of uniforms its crews will wear. Any of these can be changed by humans.

But there are those laws of aerodynamics that no government agency or corporation can change: you can’t be ordered to fly the aircraft backwards, nor would it be wise to pass a law or even a Congressional Resolution demanding or approving such an attempt. The best laws – some traditional and classical thinking would say the only laws that are worthy of obedience – are those that help humans fulfill that Nature of Things and their own Nature.

Heavy stuff, but absolutely vital for folks to realize. This is the nature of the game – as it were. This is the fundamental nature of civilization and society and government: to help and not to hinder humans to achieve the fulfillment of that Nature that is so utterly basic that no human power can dispense with them or ignore them or violate them.

And, of course, if the whole Universe is set up such that to fulfill that Nature is to fulfill your own individual human nature, then why would any sane person want to?

Now bring all this down to today’s American culture and politics.

Are there any boundaries to ‘autonomy’? Is ‘autonomy’ capable of standing up as a ‘value’ on its own, with no reference to the larger Field – that Nature – in which it will function? And if there is a Human Nature that is a part of that Universal Nature, if there is a Human Shape and Dynamic that finds its fulfillment – like a well-piloted aircraft – by cooperating with those laws … then shouldn’t humans, in their own lives and in their societies and cultures and civilizations, try to get in sync with all that?

And what is the role of government in all of this? Should a government try to ignore all that and simply claim to be ‘neutral’? Can a government do that?

Or: can a government insist that it is ‘neutral’ and then make all sorts of laws that are made on the assumption that there is no such Nature? Is that a wise course for a government to try to pursue? Is it even possible for a government to successfully sustain such laws?

Or: can a government and should a government try to Deconstruct its own society’s and Citizens’ sense of such a Nature and then instead of that sense try to impose a regime of belief that there is no such Nature and that everything is up for grabs? Is such Reconstruction possible? Has it any hope of surviving the Universal dynamics of Nature?

Can a government say to its society and its Citizens that the belief in such a Universal Nature is not worthy of respect? Or can a government say to its society and its Citizens that such a Universal Nature is not scientifically provable, and is therefore a matter of personal or private opinion and not a matter that should influence how it will govern that society and those Citizens?

It’s not just a matter of ‘religion’. It’s a matter of a government’s stance toward a reality – or a Reality – that even religions, limited as they are by the limits of human knowing and acting, can’t fully embody.

It’s not a matter of ‘reality’; it’s a matter of Reality. It’s not a matter of the color of the pilots’ uniforms; it’s a matter of the fundamental aerodynamics that shape and control the entire experience of flight.

So when you talk about ‘choice’ (and not merely in the ‘abortion sense’) and about ‘autonomy’ you can’t stop there. You have to already have a grasp of what the Nature of the being is that is endowed with or claims such ‘autonomy’. A pilot has a certain significant authority in making decisions about the operation of the aircraft; but if he ‘chooses’ to fly the thing backwards, or even upside down when it’s full of passengers, then … what ‘autonomy’ does the pilot really have in those matters?

The problem today, it seems to me, is that the feminist-law emphasis on ‘autonomy’ – the autonomy of all human beings to fulfill their lives as they individually and personally see fit – is the equivalent of pilots claiming ‘total freedom’ to fly their aircraft, without going to the indispensably larger next step and understanding the nature of aerodynamics that ultimately Shape and Boundary any flying at all.

And they want to government to impose that view on itself and on everyone else.

Because, they say, there is no proof that there is any such Nature. And that’s a mighty big gamble – to ignore the possibility of such a Nature.

And for a government where so many Citizens think that is such a Nature, it’s a mighty iffy thing to try to claim that there isn’t.

And it’s a mighty iffy thing for a government to insist that folks should just stop thinking, and that their belief in such a Nature is just a private thang that may not even be true.

As the Citizen-passengers of the American aircraft, you have to wonder if the pilots really know what they’re doing. And if they’ve thought this thing through.

And as Citizen-governors of the government of the Republic, then you have to wonder if you don’t have some responsibility individually and collectively to speak up rather definitively. After all, having a ‘voice’ and being ‘empowered to have a voice’ is pretty much what the Constitution guarantees.

These beliefs aren’t simply “the particular values of a particular religion” – these beliefs are a demonstrable constant in human assessments of human existence for the entire recorded history of the species. And while I fully agree that 10 blind men may all bump into different parts of an elephant and think that they have figured out the whole thing (it’s a huge root – the trunk; it’s sharp and hard – the tusk; it’s a leather butterfly – the ears; it’s like the trunk of a tree – the legs; it’s like a massive house – the sides of the body itself; it’s like a snake – the tail) you still can’t decisively (or accurately) conclude from their various conflicting reports that the elephant simply doesn’t exist.

So in trying to rearrange the national Building in order to make more space for themselves and their demands the reformers are trying to move it off its foundations, or any foundation at all.

This doesn’t seem wise.

In trying to make more space, then, the various revolutions of the past few decades, trying to pass themselves off as ‘reforms’ so as not to frighten up too much opposition to their agenda, have had to declare that the Building itself has no foundations, or at least no solid carrying walls that you can’t mess with without weakening the entire integrity of the structure.

You see how all of this ‘reforming’ gets kind of quickly into something more than re-arranging the national Furniture or knocking down a few inessential Walls inside the national Building.
This was going to be a verrrrry demanding task. Which the Beltway undertook with (typically American) impatience and zeal, and with the urgency that only vote-addled pols can demonstrate when they are really really worried about electoral viability. But also want to make it appear that they are either ‘just reforming’ some stuff or ‘doing all this with really clear knowledge of what’s involved’ (and can you say ‘Iraq War’?). Wheeeeeeeeee!

So ‘liberal morality’ – like ‘liberal philosophy’ – is that there is no common ground for morality or philosophy at all. And that folks should just ‘get used to it’ and if not, then they ‘just don’t get it’. The only ’moral’ thing to do is to let everybody do what they want.

It can hardly be surprising that any human government that tries to build on that foundation is going to wind up having to be very ‘regulative’, and will have to impose a whole lotta rules.

Because if you raise kids to think that they have ‘total autonomy’ then they aren’t going to be well prepared for understanding or respecting themselves or anybody else. And if the Citizens can’t govern themselves in their own individual lives, then the government is going to have to do it for them with a whole bunch of laws – regulatory and also criminal – that does that governing for them. If individuals can’t master themselves, then sooner or later government is going to have to be the Master (Mistress).

And there goes your Constitutional Republic and the entire American vision of how a free (but not ‘totally autonomous’) People can govern itself.

Oy. And thus We might pray with the inimitable Chester A. Riley: “What a revoltin’ development DIS turned out ta be!”.

And so you wind up with a government like We have today: seeking to impose the philosophical position that there is no possible public philosophy upon a Citizenry that mostly thinks there is, and with a government that – like all of history’s governments – doesn’t really mind if it is turning into a Master/Mistress (the old Benevolent Despot scam that the Framers saw and knew well and rejected).

If the ‘moral’ is purely private and has no place in the public realm, then you are heading toward Machiavelli’s approach to governing (and you can see this in foreign affairs now even more vividly than in domestic affairs).

Machiavelli really didn’t mind what his Prince did in his personal and private life; he only wanted the Prince to be a ruthless though crafty manipulator in public affairs.

But Machiavelli’s huge mistake in his calculations was to imagine that a human being can consistently be one thing to him/herself in private, and the exact opposite in public activity, and to be able to sustain this profound and monstrous opposition over a lifetime without any adverse consequences.

And that’s crazy-talk. Human beings aren’t so easily divisible and compartmentable.

Now to Nussbaum in her book.

Mulhall sees that she is making a claim that emotions like Disgust and Shame are not emotions that she wants to see become the basis of laws.

But in her overall feminist-law approach she has claimed elsewhere in her thought that Emotions are a form of Reasoning. In her effort to get Law off its oh-so-Western foundations in ‘reason’ and ‘thinking’ and ‘abstractions’ she also wants to make legitimate space for the Emotional (which is precisely what Western Law has been trying to get OUT of the process in order to protect individuals from arbitrary government assault).

Thus – if you are, say, Disgusted by ‘unwed mothers’ or ‘abortion’ (please don’t think I’m trying to raise the A-issue here) or you are Shamed that your society would approve of it, then you are simply indulging in Emotion, and that shouldn’t be the basis for laws. (She doesn’t go into whether it should be the basis for Culture and Tradition … which is itself a whole other, but equally vital, matter.)

And yet she wants Emotion to be considered a form of Reason (and there’s a verrrry odd connection here – though I am not claiming this as a trump factoid – between feminism’s assault on ‘male’ reason and thinking and feminism’s trumpeting of ‘womens’’ intuition and feeling).

Emotion, she says, is a form of Reason because it embodies a particular “understanding” of whatever object it is aimed at. But such an ‘understanding’, drawing upon the more primal parts of the brain and not involving the more advanced prefrontal cortex capabilities of the brain, is really no ‘understanding’ at all; it is merely a reaction – and one that may be grossly uninformed or under-informed about its object.

This is precisely why Western Law has worked so long and hard on trying to engage the more advanced parts of the human brain – that prefrontal cortex – even long before medical science actually established the existence of the tripartite division of the brain and that remarkable and uniquely human prefrontal cortex with all its ability to postpone an immediate response of some Action, and instead to work beyond emotions in order to analyze, deliberate, and carefully consider. THAT is precisely what court trials are designed to do. And what lynchings precisely avoid.

Thus – verrrrry relevant to SO concerns – she thinks that Fear is a form of Reason. Now it becomes clear that if Fear is seen as a form of Reason, and ignored as the profoundly powerful Emotion that it really is, and then to make Law based on that Fear … then you have regressed Western Law and the entire Western cooperation (hardly perfect, I’ll be the first to say) with the ‘higher’ human capacities bestowed upon humans be their genuinely unique and remarkable human brain. You have regressed it away from Reason and back to Emotion. This is not progress. And Nussbaum’s playing with words cannot make it so.

Nor can Nussbaum’s and feminism’s assumption that the human Nature is totally plastic and as malleable as children’s play-dough clay make it so. Humans have a certain same-ness on some profound and basic level that has to suggest that there is SOMETHING ‘in there’ that remains constant, has its own identity sustained over time and Time, and is therefore possessed of a certain Shape. And – like an aircraft – is thus answerable to certain laws and dynamics which no ‘pilot’ can ignore or pretend doesn’t exist.

And if you don’t want to call it ‘soul’ or the human soul or human nature of human Nature … you can come up with a new WORD for it, but its REALITY remains rather strongly independent of whatever words or phrases you want to use. In this sense ‘religions’ didn’t invent the human ‘soul’; they simply tried to understand a clearly perceived aspect of human existence and of human reality that from the earliest times humans sensed was somehow ‘out there’ and – more to the point – ‘in there’.

The ‘religion’ thing here is a red herring.

She doesn’t want Law made on the basis of Shame and Disgust because those Emotions are “unthinking” forces, but then she plumps for Fear because it is a form of ‘knowing’ and “understanding”.

Suppose Disgust and Shame in the matter of some of feminism’s agenda are forms of “understanding”? Or of ‘knowing’?

If THAT’S true, then the significant public aversion to some of what has been going on all these decades is a form of “understanding” and maybe she and her fellow-sister cadres “just don’t get it”.

And if it’s true, then you ALSO have a Beltway that has committed itself to a whole mess of Law that flies in the face of the majority of the Citizenry’s understanding and knowing.

Which is not a good situation for a Constitutional and deliberative democracy to be in. (But it’s precisely the situation that developed when the federal government undertook to Deconstruct and Reconstruct the South in the 1960s to clear it of the Jim Crow mentality.)

And how can any or all of this be presented as ‘liberal’ or ‘progressive’? The results are certainly not ‘liberal’ or ‘progressive’. Which is an unintended consequence from hell.

She wants to delegitimize “the disgust of one human group at the behavior of another human group” and she most certainly doesn’t want that Emotion enshrined in laws or Law. (And yet she wants Fear to do be just so enshrined, and the SO Mania is the result.)

She doesn’t want “disgust” to be enshrined in Law because it makes “the legal system complicit in the perennial human desire to regard some human beings as subhuman”. (Which, of course, is precisely what the SO Mania has done by creating and defining ‘sex offenders’. And it is now clear that ‘fear’ grants you very little knowledge of ‘sex offenders’ at all, as numerous studies from various disciplines now indicate.)

Mulhall observes that “Nussbaum concludes that laws which inflict shame on fellow citizens, and which fail to protect them from degradation or humiliation typically reflect a failure to renounce infantile fantasies of omnipotence, a persistent denial of our finitude, and hence a denial of our humanity”.

Well, there you have – and from one of the most prestigious of feminist-law thinkers in the country today – a pretty good assessment of what drives the SO Mania: an attempt to create a ‘scapegoat’, the proverbial ‘black sheep’, relative to which everyone else can consider themselves superior and ‘good’.

It’s good but it’s not complete: there is a political-gain element whereby an otherwise failing legislative authority can both ‘prove’ that it’s doing something and also distract Citizens (as it so effectively did) from far larger and far more real and urgent public problems (preventive war, torture, the economy); and there’s the apparently eternal feminist desire to somehow take ‘men’ down a peg (though sex offenses by women, and especially lesbians with that extra dollop of maleness in their biology, rarely get examined).

And while we’re on the psychological aspects of things, Nussbaum stunningly uses as an example of ‘shaming’ the license plates that drunk drivers have to put on their car marking them as such – but not a word about the SO Mania (which also includes license plates in some States) although by 2004 when she wrote this book the Mania was well-established. (Mulhall doesn’t note the SO Mania in his otherwise acute and perceptive review, either; although the UK already had its own version in place, though less virulent than the American version.)

Strange that in all their crowing in their recent victory-lap histories the feminists do not count the SO Mania among their ‘governance feminism’ “victories”. (And in regard to the Domestic Violence laws, they only burble about the good intentions – with not much to say about the actual consequences, intended or unintended). Funny how the night moves in all of this. Here is a great ‘victory’ and ‘success’ that has no heavy-hitting ‘fathers’ (or ‘mothers’, of course) … JFK was wrong apparently when he said that “Success has a thousand fathers”. But then, he added “failure is an orphan” … and what we have in the SO Mania is an orphan … so maybe … ?

Nussbaum wants to create by laws a “facilitating environment” that protects people from others’ disgust or shame. She is, I am sure, trying to put a philosophical ‘ground’ under the long-standing agenda to make a whole lotta things ‘OK’ and to make them ‘the new normal’. She wants to protect people from the judgments of other people, no matter what they do.

She tries to spin that as simply using Law to neutralize what she sees as the abnormal-psychology of groups when they scapegoat or black-sheep certain groups. “Those who call themselves as ‘normals’, who understand themselves as ‘normatively normal’, essentially free of the imperfections [that] they project upon others … satisfy their infantile need for control”.

And doesn’t this indicting judgment apply to those who fan the flames of the SO Mania? And not only in order to ‘control’, but in what I would call a profound abnormal-spirituality as well as abnormal-psychology, seek almost blasphemously (as they used to say back in the day) to imagine themselves as ‘pure’ and ‘decent’? Clint Eastwood marvelously has his aged gunfighter tell an aspiring young worshipper: “We ALL got it coming, kid.” That’s not just a (wonderfully succinct) statement of some “particular religion’s belief”; that’s a statement of the human condition. A human condition which in their efforts to further their own agendas far too many ‘advocates’ have utterly ignored.

And in ignoring the SO Mania she ignores the awesome reality that her own feminist-law has sought to manipulate public opinion – and subvert Western Law – in order to raise up just such a group as an object of Fear and Disgust: the SO. The SO who, by virtue of the near-eternal SORNA requirements can now rightly be considered an American version of Naziism’s “der ewige Jude”.

This is not progress. Nor is it coherent philosophy. Nor is it a legitimate basis for public policy and Law.

As a final observation, I’d support Mulhalls’ excellent selection of Nussbaum’s claim that necrophilia should not be viewed with revulsion because, really, it’s essentially a case of a violation of property laws: the corpse belongs to ‘the family’ and to violate it is at most a property offense.

Mulhall cuts instantly to the heart of it: Nussbaum has the case exactly backward. The corpse is not worthy of respect because it is somebody’s property; rather, the corpse is worthy of respect because it is the former site of a human being. And it is the value of that deceased person’s humanity – and perhaps it might be said of humanness and humanity itself – that endows the corpse with that claim upon respect, and which should also reach ‘back’ into Time to further illuminate the humanity of the deceased’s family.**

Well, this is the type of problem a philosopher runs into when s/he tries to make ‘reality’ arrive at a pre-determined point that is politically relevant and useful.

NOTES

*The article is only 2 pages long, but it’s one of those meaty and in-depth discussions that the Brit book-review journals – and also ‘The New York Review of Books’ – do pretty well. It is entitled “Decay-Prone”, written by Stephen Mulhall, and it appeared in the July 22, 2004 issue of ‘The London Review of Books’, on pages 24-25. The LRB’s site is subscriber-only, so it requires a subscription to access the piece.

**Nussbaum, it might occur to a reader, paints herself into a corner here: she winds up making such a stunning statement about necrophilia by considering the corpse as merely ‘property’ the same way that at the other end of life feminism must consider the fetus to be merely ‘property’. Funny how the philosophical night moves.