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.

The McClean Dissent, Part Deux

When I consider this dissent in the light of Dworkins writings, I am immediately reminded of the discussion of checkerboard policies versus law as integrity. As we are now well aware, Dworkin proposed that integrity – or continuity – is necessary in the law, such that equity and justice cannot be rightly done by when predictability in how the law will act upon a person is lacking. McClean’s dissent offers a rather striking dichotomy when looked at in this light. On the one hand, his appeal to the persuasive literature provided by the Framers, and to the precedents of the Court – not to mention his appeal to Somersett v. Stewart, represent an attempt at giving the law a measure of integrity – to at least the extent that integrity means continuity. His arguments that there were no established precedent forbidding Black citizenship, and that there was precedent allowing for the Congress to exert legislative control over territories represented an attempt to establish a clear, distinct, and straight line of legal reasoning. However, there is an irony in this, because in allowing the Missouri Compromise to stand as McClean wished would represent the implicit continuance of checker-board policies, which run contrary to Dworkin’s vision of law as integrity. As Dworkin discussed – and as I have discussed previously – checkerboard policies are those that affect different locales, populations, or communities differently. In this spirit, the Missouri Compromise, which allowed slavery in some communities but not in others, is a checkerboard policy. Hence the dichotomy I spoke of earlier. While McClean’s logic in his dissent represents a clear attempt at law as integrity, some 130-odd years before it was written of, it is repugnant on its face to Dworkin’s writings on checkerboard policies. I added the emphasis in the last sentence to make very clear that in Dworkin would in no way have supported the majority decision in this case, and that while the dissent is repugnant on its face to Dworkin’s writing in this area, it would certainly have been a step in the right direction as far as Dworkin – a natural law and human rights theorist – would have been concerned.


The McClean Dissent

I know it’s been a long time since I’ve posted. Even after such a long break, slavery is still a topic we’re talking about apparently. As this blog is – for the time being – a companion to one that I must maintain for my Philosophy of Law Course, it follows the topics de jure of that course, which have been slave-centric all semester.

It is likely that this may continue for a while, so strap yourself in for some more of the same.

Although, I have been doing quite a lot of independent reading and hope to begin discussion some of that as the semester winds down and I being to transition into a more self-guided set of topics for this blog.

This post will be broken up into two parts: first, a very brief, broad, and basic discussion of the McClean dissent in the Dred Scott case; and second, a discussion of that dissent through the lens of Ronald Dworkin’s Law’s Empire.

In his decision in Dred Scott v. Sanford, Chief Justice Roger Taney wrote that it was unconstitutional for the Congress to enact legislation such as the Missouri Compromise, which banned slavery within the Louisiana Territories, above 36°30’, except within the boundaries of the state of Missouri. The much-maligned decision rested upon the premise that the federal government had no power to regulate slavery in territories acquired after the ratification of the Constitution, and additionally that persons of color could not be citizens of the United States, regardless of whether or not they are or were slaves.


In his dissent, Justice McClean explored the notion of the citizenship of Black persons living in the United States, and further, he examined the necessity of the majority’s decision to strike down the salient substantive portions of the Missouri Compromise. His arguments rested, in large part, on the dearth of precedent that disallows persons of color from being citizens, citing that there is no evidence by which one may make such a claim as that persons of color may not be citizens. Instead, McClean argued that at times white men were enslaved as well, and that the institution rested upon the wielding of coercive power. By this measure, it makes little sense to exclude one race, at one point or another bound by the shackles of a slave, from receiving suffrage, but allowing another race, also having been similarly bound, to exercise full suffrage.  Not unrelated was McClean’s argument against the repeal of the Missouri Compromise, in which he cited the precedent in Atlantic Insurance Company v. Carter, in which Chief Justice Marshall wrote that the Constitution empowers Congress to “make all needful rules and regulations respecting the territory or other property belonging to the United States.” As such, argued McClean, the Missouri Compromise was good law. Logically, if the Missouri Compromise was good law, and was brought to bear on the geographic location of Scott, upon which his argument rested, then Scott was logically a free man. Further, McClean cited Marie Louise v. Marot, in which the Louisiana Supreme Court ruled that once freed, a man couldn’t be resubmitted to the bondage of slavery.

Checkerboard Policy

Somerset v. Stewart also confronts the reader with what Ronald Dworkin referred to as ‘checkerboard solutions.’ To be brief, a checkerboard solution is one that is designed or manipulated to apply to separate groups of people differently (Dworkin, 179). These solutions are unjust on their face, as they confer rights and obligations differently between groups of people, and are an affront to the notion of integrity in the law. If we think of checkerboard politics in the context of the American political arena, the Supreme Court’s controversial decision in Roe v. Wade provides interesting talking points. The decision allows abortions for all women before a certain point in the pregnancy, that point being the beginning of the third trimester at which time the fetus is thought (by the court at least) to be viable. This temporal ban is also applied to all women, nationwide. The argument can be made that even in retuning control of abortion bans to the states would not necessarily be a form of a checkerboard solution, as each state would ostensibly organize their abortion bans in a coherent and equal fashion (Dworkin, 186).

Somerset presents the reader with a checkerboard solution. The decision seems to have created a double standard within the British Empire; slavery was interpreted as having been ruled illegal in this decision within the bounds of England and Wales, but not so in the American Colonies – equally as invested a member of the Empire as the other constituent parts. In this sense, the court – or those interpreting the court – created a rule that affected different groups of people differently. Residents of the Island were ostensibly divested of their slave holdings – arguably unjust by the mindset of the time, whereas residents of the Colonies were allowed to perpetuate their ghoulish practice. To revert, only momentarily, to the Wade decision – the argument that giving the banning power back to the states does not necessarily create a checkerboard solution falls victim to a larger macroscopic claim, that is applicable to our discussion of Somerset. Dworkin argued that while the states may create their bands in an equal and coherent manner, the manner in which they do so can still create an issue of integrity on the national scale in that all other rights are considered “national in scope.” (Dworkin, 186) By this logic, allowing the states to control some rights of citizens, but not others, is in itself a checkerboard solution. This of course presupposes that the ability to seek an abortion is itself a right, or that the privacy found to be an integral issue in abortion by the Court is itself a right – for the purposes of this discussion, it is easier to assume that those are both true statements. In Somerset, the Court’s decision does exactly this. It recognizes the brutality of the practice in question, and the right of self-determination held by Somerset, but only within certain geographic boundaries. Had Stewart not retuned to England with his slave, and had remained in Boston with him; he would not have been divested of his slave.

Pragmatism vs. Integrity: Round Two

One who belongs to the integrity as law school of thought will espouse the belief that the administration of justice requires consistency in jurisprudence (Dworkin, 166). The pragmatist, however, might argue that consistency for the sake of it is not equal to the administration of justice, and that justice is best administered through an interpretation, by a judge, of what is best for the community in the long term.

It is interesting that these schools of thought are found in equal measure in Somerset. Consider the lack of precedent upon which both sides of the dispute hang so much import. Lord Mansfield sees that there is no precedent in the English common law upon which to justify the legality of slave ownership within the geographic United Kingdom. The absence of precedent forces him to decide what is, in his view, the best possible solution for the Empire’s future. Alternatively, one might make the argument that he chose to respect the integrity of English common law. To wit: no favorable precedent exists, and one will not be brought into being here. While no negative precedent previously existed, one is not necessarily created here when one bears in mind the supremacy of Parliament in the English legal system – this court says no, but that does not necessarily make it perpetually binding.

This is perhaps the greatest flaw in considering the debate between these two schools of thought. The distinction, in many cases, between pragmatism and integrity in the law can be one that is merely imagined. In Somerset, for example, it is impossible to say whether or not Lord Mansfield was concerned with with continuity – in fact, given his statement at the end of the opinion that his decision is final, “what ever the consequences.” One might ague that this decision was made, from Mansfield’s point of view, for the better of the future, or with insouciance toward it.

Pragmatism vs. Integrity

We are confronted with a tug of war between pragmatism and law as integrity in our present case discussion. The pragmatic view, very simply put, eschews adherence to precedent for the sake of precedent, and denies – at least to some extent – the existence of legal rights. The pragmatist would argue that cases at law should be decided in their own right, based upon that which is best for the community. Should a governing rule emanate from a jurisprudential decision, that rule would be based upon the future good of the community, and will be adhered to under the same terms. The theorist who aligns with the law as integrity argument – Ronald Dworkin – would argue that precedent is an integral part of jurisprudence, as it provides a solid framework upon which jurists may base their opinions.  Integrity in the law therefore requires a large level of “constructive interpretation:”

“The process of constructive interpretation is made up of three analytical stages: (1) Pre-interpretive stage, (2) Interpretive stage, (3) Post-interpretive stage. In the Pre-interpretive stage, a participant identifies the rules and standards that constitute the practice. Then, in the interpretive stage, the interpreter settles on some general justification for those elements identified at the pre-interpretive stage. At the post-interpretive stage, participant adjusts his sense of what the practice really requires so as to better serve the justification he accepts at the interpretive stage.” (SOURCE)

These concepts would seem to clash in our present case, in spite of the fact that they would likely have come to the same conclusion. The decision turned upon the moral abhorrence of slavery as a practice, to an extent, but it also turned upon a discussion of the contents of English law. To wit: there existed no common law ban nor permission for the practice, and Lord Mansfield saw that it was unfit for the common law to do so. In this, we see a dependance upon a lack of precedent, and an opportunity for a jurist to act with a clean slate for, in his mind – and I think we can agree, in our minds, the betterment of the English (and Welsh) community.  Furthermore, Lord Mansfield did not (and as a matter of English legal theory, could not) debar the Parliament from enacting a statute permitting the practice on the Island – in fact, he said that if it was to be deemed legal, such was the only way. In this regard, one might argue that the Lord took a pragmatic approach, by noting simply that the practice was currently not provided for by English law, and that the society would benefit from the common law’s not providing for it – but that the Parliament could simply see otherwise down the road.

The believer in integrity may have had to come to the same conclusion via a different road. Or maybe not. The ‘integritist’, such as Dworkin, would have reasoned that a reliance upon legal rights must have driven the case, as there was no relevant controlling law. In this, there are two possible outcomes:

  1. The contemporary integritist – that is, contemporary to the time – might have ruled in favor of Stewart instead of Somerset. This may be so because Stewart had certain legally given rights as a property owner. Remember, the court accepted the notion that English law protected the contracts pertaining to the sale of slaves. As such, at least in theory, English law can be argued to have supported the notion that the sale was valid. If this is true, Stewart had certain legal rights to Somerset. However, the integritist might have argued, on the other hand, that Somerset had his own legal and natural rights – such as self-determination, and as such could not be held as property.
  2. Realistically, there is no chance the Ronald Dworkin – as the originator of this theory of integrity – would have ruled any differently than Mansfield. It is likely that his basis of rationale would have flowed from a Natural Law viewpoint, espousing the ethical principles that are grossly violated by the practice.

Somerset v. Stewart

My next few entries will revolve around the former English highest court’s decision in Somerset v. Stewart. These entries will discuss the case as it relates to Ronald Dworkin’s writings, specifically (and to varying extents) those involving pragmatism, law as integrity, legitimacy, and community obligations.

It seems necessary to first have an understanding of what this case is about before commencing analysis, so a brief of the case can be found below. We’ll leave it there for today.

Somerset v. Stewart

LOFFT 1, 98 ER 499 (King’s Bench 1772)

*Note: The King’s Bench was England’s highest court at the time this case appeared.


FACTS: The petitioner, James Somerset, was a slave purchased by the respondent, Charles Stewart, in Boston Massachusetts. Stewart returned to England with Somerset in 1769, and in 1771 Somerset escaped captivity, but was promptly found and detained. He was forcibly turned over the Captain John Knowles of the HMS Ann and Mary, to be sent to Jamaica and resold into slavery. An application for a writ of habeas corpus was submitted on his behalf, and duly granted. Captain Knowles was compelled to present the petitioner before the court to ascertain the legality of his detention. Advocates for the petitioner argued that while Somerset’s purchase was technically legal within the American Colonies, the common law and statutory law of England did not support the enslavement of another. Furthermore, England’s common law of contracts does not support the notion that one may agree to a contract binding one’s self into perpetual slavery or servitude. Advocates for the respondent argued that while there is no evidence of slavery being allowed by English common or statutory law, there is also no evidence against that it is illegal, nor is the argument made by the petitioner’s advocates that there exists any legal debarment. Furthermore, as the petitioner was legally purchased, and there were no previously existing laws stating otherwise, the petitioner was the legal property of the respondent, and the respondent must not be stripped of the same.

ISSUES: Does the English common law provide support for the respondent’s right to detain a slave?

HOLDING: No. Ruling is provided in favor of petitioner.

RULE: The English common law provides no legal support for the detention of slaves, or for the practice of slavery in general. Such support must be inculcated through positive (statutory) law.

REASONING: While the English common law provides legal support to contracts involving the sale of slaves, it does not provide support for the forcible treatment of a slave in his person; a distinction to which Lord Mansfield attaches great importance. The practice of forcible treatments of slaves, and thus slavery in general, is found to be such an “odious” practice that Lord Mansfield declares that no moral or political support for it may derive from the common law, and that only positive law, which outlasts its purposes and principles, can be “suffered to support it.”