Nussbaum on Disgust as Cause of Action

No Offense; Mere disgust should not constitute a cause of action
Martha Nussbaum
The American Lawyer
October 1, 2004

Disgust is making a comeback. Lord Devlin's famous proposal that the disgust of an average member of society was sufficient reason for making a practice illegal, even if it caused no harm to others, was much criticized when it first appeared [in 1959, in response to the Wolfenden Commission's proposal to decriminalize consensual homosexual relations]. Support for Devlin's line of thought is now, however, very much on the rise. In 1997, in The Anatomy of Disgust, legal theorist William Miller argued that a society's hatred of vice and impropriety necessarily involves disgust, and cannot be sustained without it. And Leon Kass, chair of President George Bush's commission on stem cell research, argues in The Wisdom of Repugnance [1998] that our responses of disgust embody a wisdom that can steer us reliably in times of social change. Such views are built into many of our legal practices. Opponents of these ideas argue that the appeal to disgust is somehow illiberal, but they usually don't say anything very clear about why this might be so.

We can respond adequately to the recent revival of legal interest in shame and disgust only if we begin with a deeper and more detailed understanding of these two emotions and their role in the narrative history of human life. Once we have a richer account of these two emotions, we will see that there is something problematic about them, something of which a liberal society should be suspicious. Both are bound up with various forms of prejudice, exclusion, and misogyny, as people project the discomfort they feel about mortality and decay onto vulnerable groups and individuals. Here I focus only on disgust, and on the law of nuisance, where disgust might seem to play a straightforwardly valuable role. Even here, however, we should think very carefully.

In nuisance law, the law protects people from an actual disgust-experience that interferes with their use or enjoyment of their property. Disgust is treated as a type of harm: The oft-cited maxim is sic utere tuo ut alienum non laedas, "use your own in such a way that you do no harm to anyone else." Disgust is, then, the actual harm that occasions the legal prohibition, not [as with Devlin's case for sodomy laws] a mental criterion allegedly showing how bad a certain type of act is. Such cases appear straightforward; nonetheless, an understanding of links between disgust and group denigration helps us distinguish what is really straightforward from what might be more problematic.

The classic precedent, quoted in virtually all modern nuisance cases, is Aldred's Case, which holds that a man has "no right to maintain a structure upon his own land, which, by reason of disgusting smells, loud or unusual noises, thick smoke, noxious vapors, the jarring of machinery, or the unwarrantable collection of flies, renders the occupancy of adjoining property dangerous, intolerable, or even uncomfortable to its tenants." The enumerated instances all involve something from person A's property coming onto the property of person B: either a discernible substance [flies, smoke, vapors], or sound waves and smells that are not just imaginary or conceptual, but real physical presences. In other words, we are not on the terrain where B is disgusted because he imagines A doing something on A's own property. Something real and definite has been inflicted upon B by A. Sometimes, too, there is also danger ["noxious vapors"].

Cases in the modern tradition follow this lead. Many such cases involve water rights: Neighbor A may not contaminate water that flows through B's land. The case law makes it clear that actual danger is sufficient but not necessary to constitute a nuisance: Strong sensory disgustingness is enough. Thus, a swine farm located in a residential area created a nuisance even though it could not be shown to be injurious to health, and even though the odors were those natural to pigs fed on good grains and vegetables. A sewage lagoon near a dairy farm was held to be a nuisance even though it could not be demonstrated that the cattle had actually contracted any disease from its effluences.

Lines are carefully drawn: A factory that extracted fish oils and made fish pumice was held to constitute no nuisance, even though the process emitted "disagreeable smells," until the owners also started to manufacture phosphate manures from dried fish scrap, phosphate, sulfuric acid, and coal tar, a process that produced "nauseous and sickening stenches, which were diffused through the air, and large quantities of acrid tarry substances of filthy and disgusting smell were produced . . . creating a nuisance to the then plaintiffs and a large part of the people of Milford." Strong fishy odors, interestingly, were not enough, though the plaintiffs complained about them. The combination of noxious chemical odors was a different matter.

One further extension is traditionally allowed: If a disgusting substance has been placed in the water, and it is as yet imperceptible, but, nonetheless, the knowledge of its presence occasions disgust, then this too can be sufficient grounds for legal action. A common citation is a text on nuisances by Wood, which states:

But in reference to [water rights], as with the air, it is not every interference with the water that imparts impurities thereto, that is actionable, but only such as impart to the water such impurities as substantially impair its value for the ordinary purposes of life, and render it measurably unfit for domestic purposes; or such as causes unwholesome or offensive vapors or odors to arise from the water, and thus impairs the comfortable or beneficial enjoyment of property in its vicinity, or such as, while producing no actual sensible effect upon the water, are yet of a character calculated to disgust the senses, such as the deposit of the carcasses of dead animals therein, or the erection of privies over a stream, or any other use calculated to produce nausea or disgust in those using the water for the ordinary purposes of life, or such as impair its value for manufacturing purposes.

Here we find, it would seem, three sufficient conditions for legal action: danger, sensory disruption, and disgust about primary objects [which, at least in the view of this authority, might be separable from both danger and sensory impact]. The idea is puzzling, because both privies and animal corpses actually do create danger and, eventually, strong sensory impact. But apparently Wood argued, and the court agreed, that even if they don't, the mere thought of their being there is disgusting, and thus actionable.

Does the extension of nuisance to these cases admit "merely constructive" disgust of the type that Devlin had in mind [the average person imagines some conduct and feels disgust at what he imagines]? It seems highly significant that the disgust that is admissible, here, as a ground of legal action is disgust at the thought of something that would, present over time in sufficient quantities, suffice to occasion strong sensory disgust. Moreover, its current presence is already dangerous. Such cases look very different from a case alleging that a lake is contaminated by the fact that an African American swam in it-even though many if not most white Americans would at one time have held that view. The cases in which an extension is permitted are cases squarely within the "primary objects" limitation: Corpses and feces are paradigmatic of the primary objects of disgust. So the small extension does not seem to be a major theoretical shift in the direction of admitting "merely constructive" nuisances.

But of course people do not like living near groups they find disgusting. Many laws in the Jim Crow South were fueled by disgust at the thought of sharing toilets, drinking fountains, or other public facilities with African Americans, and by the magical thinking about contamination that accompanied racist disgust. People will always try to use zoning or other residential restrictions to screen out groups they find polluting. Sometimes these pollution ideas masquerade as legitimate concerns about nuisance.

In Cleburne v. Cleburne Living Center, the Texas city in question had denied a permit for a group home for the mentally retarded, following a city zoning law that required permits for "homes for the insane or feeble-minded or alcoholics or drug addicts." [Permits were not required for convalescent homes, homes for the elderly, and sanitariums.] The mentally retarded are typically viewed with both fear and disgust, and the denial of the permit appeared to reflect these attitudes, despite the city's attempt to claim that the area was on a "five-hundred-year flood plain," and that the mentally retarded might not be able to escape in case of a flood. In one of the rare cases where a law is found not to have a rational basis, the U.S. Supreme Court held in 1985 that the permit denial violated the equal protection clause, because it rested only on "invidious discrimination"; "an irrational prejudice against the mentally retarded"; and "vague, undifferentiated fears."

Cleburne gives us a benchmark to follow in thinking about the extension of disgust in residential law, zoning, and nuisance law. Irrational prejudice may not be the basis of the denial to a person or group of a right to live and enjoy property on a basis of equality with others. The traditional category of nuisance is rightly understood as an extremely small and precise one, narrowly focused on sensory disruption, danger to health, and a few cases of powerful ideational disgust directed at primary objects in ways that lie very close to both distaste and danger. All use of disgust based on group prejudice or magical thinking should be utterly rejected as a basis for legal regulation or legal action, even in the areas of zoning and housing.

Two more cases illuminate this boundary line in an interesting way. As John Stuart Mill pointed out, people whose religion tells them not to eat pork often develop an intense physical disgust at pork. [He cites Muslims as his example, but the phenomenon is also well-known among Jews.] Their bodily experience, when in the presence of people eating pork, may be very intense, and perfectly comparable to disgust at feces and corpses. Would it then be right to prohibit the eating of pork in any community in which Muslims or Jews are sufficiently numerous? Or even to give Muslims and Jews a cause of action against neighbors who cook pork and waft the odors thereof onto their property?

The case is complicated, because the disgust in question cannot easily be distinguished from disgust at primary objects [of which food is one]. Nonetheless, Mill argues, the origins of the disgust lie in a religious prohibition that tells them they should not eat pork, and that eating it is wrong. Respect for people who have different religious beliefs should prevent them from imposing the sentiments that grow out of this teaching on other people. I agree: The disgust at pork is ideationally inseparable from a religious identification and a projection onto another group of disgust-attributes: uncleanness, revolting habits, etc. While it would surely be courteous for a neighbor of such a sensitive Jew or Muslim to try to arrange that the smells not be wafted onto the adjacent property, it does not rise to the level of a cause of action, in a religiously plural society.

Consider, by contrast, the disgust of a vegetarian at the eating of meat. To make the contrast sharper, let us suppose that the neighbors in question are eating meat from animals that have been raised, as most animals in the food industry are, in cruel and revolting conditions. At this point, in our own society, vegetarianism is treated like religion: It is but one of the many comprehensive doctrines of the good that citizens rightly hold. The vegetarian's disgust at the veal roast next door, then, gets treatment that is no different from the Jewish neighbor's disgust at a pork roast next door. But the cases are actually different, and may come to be recognized as such. The vegetarian's disgust grows out of a moral principle, which recognizes the needless suffering of animals as a very bad harm, or even a harm that violates rights that these animals have. Were this moral principle to be generally recognized in society, it would be the sort of thing that would form part of the society's political core, since it concerns basic rights. In that case, the vegetarian's disgust would be honored in law, and there would be a variety of laws restricting the practices of factory farming and the use of meat illegally so produced. Notice, however, that these would be ordinary harm-based criminal laws, and that the disgust of vegetarians would not itself be legally salient. If we ever agreed that it is intolerable to raise animals for food in the way that is currently done [leaving aside, for the sake of argument, whether any humane way of raising animals for meat might be found], then the bad practices would be illegal directly, and the neighbor would simply not have a veal roast in his oven-or, at any rate, not a roast from a calf raised in a pen of the sort that is now used.

The contrast between these two cases shows us something instructive: In neither is disgust of the "constructive" sort, resting on a person's moral or religious doctrine and imaginings of conduct based on that, a legally salient factor. Either it is the sort of moral tenet that is fit to be recognized by society as a whole, as part of the core of doctrines that are basic for political purposes-in which case it is that recognition, and not disgust, that will drive legislation-or else it is among those doctrines concerning which citizens permissibly differ-in which case it is wrong for one citizen to use his disgust as reason to limit another citizen's liberty.

Disgust is an inevitable part of human life, and no doubt it often serves a useful role, steering us away from many types of danger. If, however, we understand its connection to thoughts about contamination and purity that are ubiquitously mixed up with prejudice and stigmatization, we will not agree with Devlin and his contemporary successors that disgust is a sufficient reason to make a practice illegal. We will confine legal regulation to cases of genuine harm, and we will not honor the claim that simply thinking about what people do in their private space is a harm worthy of legal regulation.

Martha C. Nussbaum, the Ernst Freund Professor of Law and Ethics at the University of Chicago , is the author of Hiding from Humanity: Disgust, Shame, and Law [Princeton University Press], from which she adapted this essay.

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Martha Nussbaum