It’s a shame that Eric Posner does not have a better understanding of shame. Or of guilt, for that matter.
A law professor at the University of Chicago, Posner suggests that shame and guilt cultures differ because the latter enforces moral norms through the rule of law while the latter enforces them through mob action.
Here, Posner defines a shaming culture:
Shaming is a form of social control. It occurs when a person violates the norms of the community, and other people respond by publicly criticizing, avoiding, or ostracizing him. Shaming has always been extraordinarily important—often, even more important than the formal legal system. In the distant past, when legal systems were rudimentary, shaming was a major source of public order.
On the one hand, shaming is the very antithesis of the law. The basic principle of due process holds that a person has a right to contest charges or claims against him to an impartial tribunal before the government may inflict a sanction on him. By contrast, shaming occurs in the absence of due process. While it is triggered by a perceived act of wrongdoing, no one takes responsibility for establishing what happened. Instead, others react, often instinctively and harshly, and often to emphasize their own virtue through their condemnation of someone else’s vice. The upshot is a reaction that looks a lot like mob rule.
Posner is obviously mischaracterizing shame. If he opposes the social value of shame that suggests that he must be wanting to promote a culture of shamelessness.
Today’s American culture is more shameless than shaming. Consider the pervasiveness of oversharing and sexting.
Whatever the value of due process, it certainly not desirable to criminalize all forms of impolite, even rude behavior. Doing so creates what has aptly been called a police state.
Does Posner want to enforce good table manners through the court system? Does he believe that those who are rude, lewd and crude, who do not obey the norms of decorous behavior should be prosecuted?
And what would he say about the shame that attends failure? Leaders who fail—think military officers who lose major battles—are obliged to resign their office in disgrace. Having lost the respect of their troops they can no longer function as leaders.
Does Posner believe that they ought to be arrested and tried for crimes against their troops?
Of course, if they have betrayed their troops by siding with the enemy, they have committed treason and should be put on trial. But if they simply lost a battle or a war because of bad planning, they have not committed a crime.
Try another example.
Once upon a time-- a time that I, for one remember well—relationships between the sexes were conducted according to codes of conduct. Men were required to act like gentlemen. Women were told to be ladylike.
Since courtship and dating were in principle supposed to end in marriage, people were more likely to respect each other and less likely to use each other for transitory gratification.
It was not so much that miscreants and offenders were shamed and ostracized. People obeyed the norms of dating because these norms made sense and produced good relations between the sexes. People who failed to respect the norms had more difficulty forming and sustaining relationships.
Posner notwithstanding, a shaming culture encourages good behavior more than it sanctions bad behavior. It isn’t about mob rule. It’s about a polite and harmonious society.
Posner should have known that the world’s great shame cultures, cultures like Japan and even Great Britain have strict codes of personal conduct, codes that produce social harmony. It is absurd to say that these cultures are beset by mob rule.
Take table manners. Clearly, they are a positive behavior. We know that there are sanctions for people who chew with their mouths open or who use the wrong fork or spoon, but most people are happy to learn proper table manners. They are not motivated by fear.
Surely, Posner does not believe that the sanctions for bad table manners should involve the due process of law?
In America, of course, the codes of gentlemanly and ladylike conduct are now relics. They were rejected and denounced by second wave feminists. We are told that most young people do not even date any more.
In the absence of such norms we used to have a hookup culture. We also have pervasive sexting. We have crude, rude and lewd behaviors. And we now have something that the feminists are calling a “rape culture.”
By all statistical indications the problem of “rape” is not as prevalent on college campuses as the supporters of rape culture would have it. But surely the hysteria about the problem of campus sexual abuse derives in part from the fact that the old forms of respectful and courteous behavior were denounced as repressive by certain groups in society.
Once those rules are tossed out, both women and men are likely to be treated disrespectfully.
In the absence of viable social norms our culture is attempting to regulate relations between the sex with the criminal law. It invents more and more taboos, criminalizes many forms of male behavior and that punishes miscreants, either through the courts or through the kinds of high-tech lynchings that pass for shaming.
A true shame culture allows people who break the rules or who fail at a socially responsible task to offer a public apology and to retire from public life for a time.
As a rule public shaming is only a fallback position when the individual does not apologize.
In a normless culture, like ours, shaming is often be misapplied. Using shame as a way to punish people indiscriminately is not part of a shaming culture. It is part of a guilt culture.
To be more precise, in a guilt culture shame does not disappear. It becomes more intense and unmanageable.
Shame cultures are about avoiding shame. They prescribe a series of positive behaviors that will make you a member in good standing of your group and will make you a moral individual. Following these rules will shield you from shame.
When these norms break down, those who experience shame will not know what to do to restore their feeling of belonging to a group. And thus they will feel overwhelmed by shame. They will lash out at those who witnessed their shame. This makes life more chaotic and anarchic. People will turn to the courts to impose order on the chaos.
Shame will not disappear. People will no longer believed that anyone can have enough moral sense to apologize for bad behavior and mend his ways. Thus, they will humiliate him before he even has the chance to apologize... and even if he does apologize.
Shame will then become a handmaiden of the judicial system. When a mob shames people openly, no one is given the chance to apologize. If they do apologize their words are disregarded.
Some people today propose more public shaming, but they want to use it to punish those politically incorrect few who fail to adhere to the liberal pieties. Frustrated by due process and offended by those who do not think as they do or feel as they feel, they want to police thought and punish those who stray from the party line.
Shaming seems like a democratic, cost-effective, and fluid device for combating environmental degradation, racism, and homophobia—for creating a virtuous society.
We should have a serious discussion about what makes for a virtuous society, but it is reasonably certain that it not should be defined by the willingness to adhere to the left’s political agenda. These are not social norms. They are political dogmas that define membership in the Church of the Liberal Pieties.
I will repeat, a shame culture sets down rules for harmonious social conduct… like table manners. It’s a long way from table manners to leftist policy prescriptions and enforced dogmatic beliefs.
Shame cultures value good behavior. They do not value ideological conformity and do not persecute people for their beliefs.
Guilt cultures want you to feel guilty, for crimes and sins, real and imagined. Shame cultures are designed to ensure that you avoid feeling ashamed.
In the old days when there really was a shame culture, people practiced the basic forms of polite and courteous. They did not malign and insult people because they it was rude to do so.
Even when they did, the insults were easier to handle... because people were less threatened by ostracism.
Posner is disturbed by the potential for injustice in a shaming culture:
That is why people can easily be shamed even though they did nothing wrong or not be shamed even though they did do something wrong. It also explains why, as Ronson documents, people are often punished in a way that does not reflect the severity of their conduct. Law displaced shaming because such a chaotic system can do as much harm as good.
Different cultures place a different emphasis on shame and guilt. When adultery was believed to be a transgression producing guilt, the guilt was dealt with through the confessional. It was, dare we say, largely ineffective in controlling the incidence of adultery.
When, as I explained in my book The Last Psychoanalyst, cultures decided that adultery should not be countenanced, they started shaming adulterers. But, but they also instituted the practice of allowing women to have a free choice of a spouse, practice that was relatively rare in cultures where marriages were arranged and where the price of adultery was penance.
As we know in the case of Japan and Great Britain and many other places, shame cultures are anything but chaotic. When social norms break down the law enters the picture as a potential savior. And yet, a police state is necessary intrusive and invasive. It attempts to control all aspects of human behavior, both public and private, and to criminalize those it does not like.
Those who want the court system to replace social norms ought to understand—as I fear they do not—that their reasoning leads to the creation of police states.