On Martha Nussbaum’s Conception of Compassion in CrimLaw

Tethered compassion is widely accepted, and according to the United States Supreme Court, mandatory, consideration in criminal sentencing. The premise is that one may, in certain cases, consider the subjective facts surrounding an action when considering convictions and punishments. Under this type of doctrine, compassion for the state of mind of the defendant can lead to diminution of the sentence, or exculpation in rare instances.

In her book, Hiding From Humanity, Martha Nussbaum explores at some length the notion of compassion, and how it can be flawed in its subjectivity. Before answering this, we must explore her conception of an emotion.

According to Nussbaum, and emotion is not an irrational pattern of thoughts and behaviors that are produced solely in reaction to external stimulus, but are developed over time in response to socialization, the formation of relationships, and the development of certain cognitive patterns. In this light, emotions can be seen as heuristic modes of response to external stimuli. In Nussbaum’s conception, these responses must have two integral parts: an object, and an appraisal. The object is, naturally, the focus of the emotion; the appraisal is the value judgement focused on the object. By this conception, fear of dogs is a value judgement – that the object is dangerous and must be avoided – where the object is a Shih-Tzu. In this, I couldn’t blame someone – those things are annoying.

This is where my questions regarding Nussbaum’s conception of compassion comes into play. She contends that compassion is focused externally – that the object is the other, as opposed to the self. While she lends credence to the notion that the genesis of compassion could be the uniquely human ability to understand that the predicament of the other could easily become your own; the root of compassion is, perhaps. our awareness of our mortality. I contend, however, that this is not merely the root of this particular emotion, but also the object of it.

Compassion is, in my interpretation of Nussbaum’s emotive theory, the fear of experiencing the plight of the other. In this sense, the other is not the object of our pity, but we are the object of our own pity. We do not, necessarily, pity the other for their troubles; rather we pity our own susceptibility to those very same troubles. Pity is, in this conception, equivalent to fear. The object is myself – or perhaps my mortality, or whatever – and the struggle to avoid the stimulus experienced by the other is the value judgement – fear.

More tomorrow.


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