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“Love of Albertine is both discovered and created. It is discovered, in that habit and intellect were masking from Marcel a psychological condition that was ready for suffering, and that needed only to be affected slightly by the catalyst in order to turn itself into love. It is created, because love denied and successfully repressed is not exactly love. While he was busily denying that he loved her, he simply was not loving her. At the general level, again, Marcel both discovers and enacts a permanent underlying feature of his condition, namely, his neediness, his hunger for possession and completeness. That too was there in a sense before the loss, because that’s what human life is made of. But in denying and repressing it, Marcel became temporarily self-sufficient, closed, and estranged from his humanity. The pain he feels for Albertine gives him access to his permanent underlying condition by being a case of that condition, and no such case was present a moment before. Before the suffering he was indeed self-deceived both because he was denying a general structural feature of his humanity and because he was denying the particular readiness of his soul to feel hopeless love for Albertine. He was on a verge of a precipice and thought he was safely immured in his own rationality. But his case shows us as well how the successful denial of love is the (temporary) extinction and death of love, how self-deception can aim at and nearly achieve self-change.”
-Nussbaum on Proust and his love for Albertine
Mortal Immortals: Lucretius on Death and the Voice of Nature
This essay focuses on the concept of mercy, Nussbaum’s theoretical assertion that it is deeply intertwined with narrative, and Andrea Dworkin’s Mercy and Seneca’s On Anger as central axes to her discussion. The essay is a fine balancing act of topics: ancient western notions of justice and their origins, contemporary law and its interpretations of ethical philosophies, narration and story as crucible, carrier, and executor of these same philosophies, feminism and rape culture, and the notion that a better world may come from something other than retributive justice. As a piece of academic writing, this essay is expertly organized and supported, balanced so that there is not too much, nor too little detail to make the points and allow the reader to tease out some subtleties.
Nussbaum introduces Mercy as a book about a woman repeatedly violated, who then turns on her numerous nameless assailants by killing other unnamed men who stand in for the men who committed acts of violence against her. Dworkin’s character is the traumatized survivor of sexual violence, and I would contend that many people today, especially women, would feel represented by her feelings of numbness and rage. Indeed, Nussbaum refers to a study conducted by Miriam Hallbauer in which she interviewed women who had “committed crimes of violence against their abusers” (418), finding that “women who are repeatedly brutalized by men lose the ability to see particularity,” and that “they may even lose the ability to grasp causal connections and temporal sequence” (182). This reads to me as clearly-defined traumatic behavior, as the abused person attempts to reclaim control over situations already lost to the abyss of temporal lapse, no matter the situation. As one form of feminism, which I will here call “reactionary feminism,” this writing and method of resistance against abuse proposes that aggression is not only viable and productive, but that it is cathartic, and in such a way as to heal. The aggression proposed by Mercy is explicitly against men, defined not from one another, but only as perpetrators of violence against women. I think reactionary feminism is partly the cause of so many people’s resistance to feminism and its ideals, though it rises directly out of the effects of the culture created by those factors that all feminists oppose. Were it not for the unequal treatment of sex and gender minorities, and in this case specifically women, there would be no reactionary attempt to reclaim integrity that was once stolen, and often in ways that not only reify anti-feminist stereotypes, but may have created them in the very first place. I am not saying survivors are to blame, on the contrary, I think the creation of negative stereotypes has reinforced the culture that creates violence, and rose out of it because the norms of that culture do not typically hold compassion (or even the ability or willingness to listen) as valuable, especially towards those seen as lesser in an unequal society. What I mean to say is that the would-be aggressors had/have only to listen to negate the entire chain that has lead to a great polarization of camps geared on one side for gender and sex equality, and traditional gender roles and sex-linked gender norms on the other.
Nussbaum’s argument does not comment so explicitly on the contemporary, instead building a base from the history of Western Civilization. She defines legal ethics and philosophy via Greek and Roman history, which I will here simplify. The traditional form of Greek-originated justice, known as dikê, was strictly retributive, and laws were made so as to inflict punishment. If a law was broken, the perpetrator got the punishment of the law, no question. In contrast, The Roman Stoics saw particularism, in which the defendant’s life story is taken into the account of their character, and motive as valuable for defining both guilt and the degree of punishment. Philosophically extended, the use of particularism led some to believe that mercy would be the rational outcome. In the contemporary American legal system, some, notably the late Justice Scalia, believe this will lead all crimes to be forgiven. Others believe that this is an important ethical approach to crime, especially in seeking the degree of punishment (156, 174). The retributive demands that a crime committed be paid equally is based on ancient perceptions of the elements, in which winter encroached upon “the balance” with cold, thus repaid by the heat of summer.* This is the origin of justice and retribution; “it is the idea that for encroachment and pain inflicted, a compensating pain and encroachment must be performed” (157) I find this incredibly archaic and inappropriate when considered against the current justice system (and understanding of the world at large). Indeed, we live in an advanced society, and if we are sympathetic, if we are compassionate, if we are human, we will understand why the defendant committed their crime, beyond bare punishment and beyond the “balance,” and thus certain degrees of punishment may seem too harsh. Essentially, merciful justice focuses on the people involved, rather than on the act committed. If the law can be understood as a framework, harsh if carried out strictly, then equitable and merciful justice is the rational element, taking into account “the imperfect human efforts and complex obstacles to doing well,” who “sometimes deliberately do wrong but sometimes also get tripped up by ignorance, passion, poverty, bad education, circumstantial constraints of various sort” (159), and perhaps even the “terrible badness of all their options” (161).
To further refine this argument, the terms must be discussed. Mercy, as defined by the essay, is an understanding that circumstances in one’s life led to the situation at hand, and, since we are all human, there ought to be some degree of leniency because we all understand what it means to survive in the world. This definition takes into account that there is a standard of “moral character,” as well as factors that either fuel or hinder the growth of the moral character (175). This is not total exemption, as forgiveness would be defined (416). Mercy is leniency, but maintains that there was some error, as it takes into account the person and their circumstances, but also their agency and ability, as well as the greater scope of interaction with the world, and the person or people perpetrated against. “Mercy is not acquittal” (182), and necessitates rationality and evaluation. Forgiveness does away with these things so that the act can be “put away,” without any recompense or result at all.
After (and throughout) the Nussbaum’s argument’s groundwork, she relates these concepts to familiar works: ancient tragedies and the tradition of the novel. Through these media, the viewer or reader can be seen as forming “bonds of both sympathy and identification” with characters, originally an Aristotelian theory of tragedy (161), the spectator must understand the character’s choices within the scope of their life portrayed within the narrative. As the spectator plays their role in the engagement of the narrative, they must take up the life of the character as if it were their own, thus “tragedy is a school of equity, and therefore of mercy” (161). This is Nussbaum’s concept of a more complete form of justice, exercised by court proceedings that take into account the defendant’s full life story so that it may be conveyed to the court that they acted out of the background of circumstance. If the court is to consider the reasons behind the crime committed, it may be the case that punishment become more lenient, or perhaps more harsh, depending on the circumstances. Motive and the development of moral character are the two overarching factors here, as the former operates from within the result of the latter. If the moral character is lacking due to absence of proper resources, then the motive may be seen as the result of a lack of knowledge, rather than a direct violation of moral ethic. On the other hand, if the moral character has been developed with full resource and the motive is the same, it may belie knowing guilt, thus condemning the defendant to harsher punishment, as they are more fully to blame.
For this situation, whether in the courtroom or in the living room, the judgement of the juror, judge, or reader must be impartial,** reliant only upon the notion of what constitutes a moral character and what is necessary for that development. Here is where this approach becomes more difficult. It may be easy to read a novel inside the mind of an opponent, and to gain great insight from it, but judgement of a person in a courtroom for committing a crime involves far more factors, as it has to do with real events and real people, with an outcome that has effect, rather than just a finished novel. Stereotypes and biases play into things, as do political and social climates, quality of outside information and the understanding of external phenomena (scientific, religious, etc.). This is why we have judges, as they are meant to be more impartial, but, as has been illustrated by a great many court cases, judges are sometimes partial or biased, and jurors even more often so (178, 417). Add to this specific case- or crime-based rules of unanimity, and justice may never be found (177). Indeed, this is a deliberative process that necessitates open and free critique and judgement of the issues at hand. I think this form of merciful and equitable judgement is difficult even in daily social interactions, let alone supreme court cases and the like, as even the narratives told are slanted to favor one side or the other. I would suggest that there may be benefit to the inclusion of mediating and facilitating actors within the court room. These actors could help interpret lawyer’s spins and facts of the case and external phenomena to judges and jurors. I would hope that these mediators could stand without bias/partiality, but there is always the possibility that they, too, would act with personal motive.
Nussbaum’s assertion is that if the defendant’s story is told, then those who judge the defendant will do so equitably. Relying heavily on Seneca’s On Anger, Nussbaum supports the philosophy that people are not inherently good, nor inherently bad, nor really capable of living lives free from the constraints of their circumstances:
People who do bad things - even when they act from bad motives -are not, [Seneca] insists, simply making a foolish and easily corrigible error. They are yielding to pressures that lie very deep in the fabric of human life. Many of these pressures are social. Before a child is capable of the critical exercise of reason, he or she has internalized a socially taught scheme of values that is in many ways diseased, giving rise to diseased passions: the excessive love of money and honor, anger connected with slights to one’s honor; excessive attachment to sex, and especially to romanticized conceptions of the sexual act and the sexual partner; anger and violence connected with sexual jealousy; the list goes on. (164)
She continues, “Circumstances, then, and not innate propensities, are at the origins of vice” (165). Thus a person must be judged as such, rather than on the sole basis of their crime, as an act apart from anything else. Similarly, the punishment ought to be viewed not as infliction of pain from which one might gain satisfaction, but rather “the punishment that one does assign will be chosen, on the whole, not for their retributive function but for their power to improve the life of the defendant” (167). I would hope that this would be the aim of law in a constructive and progressive society. Nussbaum, in reference to the origins of justice and equity, alludes to a similar intent: “the suggestion is that equity is putting law into the condition to which it aspires in the first place” (412). For a retributive government does nothing but oppress in the shadow of societal flaws. Indeed, a just government would be self-critical when crime is common, looking for flaws within its own character in an attempt to judge accordingly, just as a “good Senecan judge” would admit that “none of us is without fault” (167). Nussbaum relies on ancient wisdom (not unique to ancient Western thinkers) to further the notion of mindfulness, suggesting that, were we all to take a few moments to look inwardly each day, perhaps our understanding of others would be more equitable.
Perhaps then, the men in Dworkin’s novel would not have abused her in the first place. Had they only looked at themselves first, they would not have influenced her perception of men and the world as inherently violent, “becom[ing] in the process an engine of revenge, indifferent to the face of humanity” (165). Nor would Steerforth, Nussbaum’s other character example from Dickens’ David Copperfield, have become so arrogant, duplicitous, and self-destructive (169). But, these examples stand as testament to what happens without mindfulness, and, in their cases, we can exercise our own and express mercy in our judgement towards them. Here lies Nussbaum’s connection between the literary narrative and the merciful character of judgement: we are told the entire story of these characters, so we know the obstacles they have had to surmount, as well as the reasons they reacted as they did. Because of this, we can understand more fully why they did things which could be seen as erroneous, ill-willed, or even evil. This understanding allows us to judge them not as evil, but as victims of circumstance, at least in part, and thus want for them aid and growth so that they may see the error of their ways, and so that they may build for the first time or again aspects of their moral character that are lacking. This necessitates love, and the rejection of a we/them dichotomy, which has been the philosophy of the era, at least in the US. But, if we are able to break away from this and work towards love, I think crime would be less likely, and the punishments less punishments, but more care for those who need it.
*Nussbaum discusses this origin only in terms of retribution, but I think it can be read in terms of reparations as well. Seeking balance requires that the opposing force go past the midpoint when encroached upon, then settling on the midpoint after two extremes. In terms of retributive justice, this means an eye for an eye, but in terms of reparations, it means the aggressor recognizes their wrong (or is held to it by a greater entity), and pays the victim of the offense to the degree that they may rebuild the hole caused by the offense. As a very basic visualization, retribution digs a hole in repayment for another hole, but reparations seeks to fill the first hole dug by taking from the aggressor’s mound, resulting in level ground on either side, rather then endless pits on both sides. This may necessitate that the perpetrator is violating against a weaker victim, for if a crime is committed against a party with power over the perpetrator, more questions must be asked, and it may be the case that the powerful party owes reparations to those committing the crime. Reparations has the goal of equality, whereas retribution has the goal of balancing feeling, which is perhaps immeasurable. Deaths of Native North Americans, for instance, or Congolese, are very measurable, as are the gains of colonial empires and the losses of regions mined for resources, and so these can be examples where reparations are due. However, I would hope that the Congolese would not desire that ~10 million Belgians be slaughtered in retribution for Leopold’s genocide in the late 19th and early 20th century. However, the Congolese should be able to appeal to an international body for reparations for the genocide, resource theft, and resultant economic and political dismay, requesting perhaps billions of dollars from the Belgian government and people, repaying their source of wealth, thus equalizing two very unequal places. Killing ~10million Belgians wouldn’t help anyone.
**Nussbaum relates Greek detachment to “hardness” and strictness in respect to prosecution of offenders, but I would prefer to use that word in a way that evokes deep empathy to both sides, thus judging with emotional investment. Nussbaum seems to promote this very same thing, but does not relate it to the concept of detachment. Investment, apart from personal bias is important to Nussbaum’s construction of equitable justice, and also to my discussion here of impartiality.
Some points not touched on:
-Mercy as rational, based in logical emotion…
-Difference in treatment btwn victim and defendant
-Revenge in society
-Mercy as capitulation (Dworkin)
-p182 - all the points there and in notes
-“For a person who notes and reacts to every injustice, and who becomes preoccupied with assigning just punishments, becomes, in the end, oddly similar to the raging ungentle people against whom he reacts.” 165