Toward a Critique of Guilt: Perspectives from Law and the Humanities: Volume 36

Nietzsche's and Freud's views of guilt provide a useful theoretical context for understanding the relationship between guilt and Utopia we have outlined in Utopia and Those Who Walk Away From Omelas. Both of them speak of guilt as the internalization of cruelty or the instinct of aggression, and see it as an inward turn that reflects a historical context. Nietzsche views guilt and “bad conscience” as a kind of illness. In The Genealogy of Morals (1887/trans. 1989) he writes, “[I] regard the bad conscience as the serious illness that man was bound to contract under the stress of the most fundamental change he ever experienced – that change which occurred when he found himself finally enclosed within the wall of society and of peace” (Nietzsche, 1989, p. 84). In Nietzsche's view, when faced with peace (the absence of an enemy upon whom one might inflict cruelty) and social mores (proscriptions against being cruel to one's fellow citizen) a civilized human is left with only one subject upon whom he may express his aggression and satisfy his appetite for cruelty: himself. “[He] turns himself into an adventure, a torture chamber, an uncertain and dangerous wilderness” (Nietzsche, 1989, p. 85). Deprived of the possibility of expressing his aggressiveness externally, man turns inward and expresses it internally, upon himself. Thus begins the age – and for Nietzsche it is our age – of “man's suffering of man, of himself” (Nietzsche, 1989, p. 85).

This essay addresses the theme of guilt in law and literature from the law side. It argues that the legal academy's flirtation with literature reflects two forms of guilty uneasiness. The first relates to the question whether lawyers should be reading literature at all. This is a methodological anxiety. It presumes a distinctly legal method of analyzing legal issues, in which literature does not have a truly legitimate role. The second anxiety is substantive. It presumes that law has an identifiable content, one that excludes much that appears in literature. Both presumptions are, I argue, questionable and make sense only if law is viewed as primarily doctrinal. Fundamentally, these varieties of uneasiness have their roots in the still unresolved conceptual challenge of figuring precisely what is “interdisciplinary” about the law and literature enterprise. Developing an honest form of “interdisciplinarity” will be difficult if not impossible because it requires an examination of usually unstated assumptions about the uniqueness of law.

This chapter argues that Albert Camus's post-World War II novella The Fall narrates a bridge of complicity between medicine and law, implicating both professions in the Nazi formulation of race. Rather than reading the work as a broadly construed allegory of the Holocaust, it situates Camus's text within the framework of the Nuremberg trials and their judgment of perpetrators in professional rather than in wide-ranging moral terms. The essay concludes by examining Camus's use of the subjunctive, which posits juridical force as the act of imagining alternatives to the past, and using these alternative scenarios as a basis for judgment.

My discussion of intersexuality's changing exemplificatory position within feminist studies of science explains how its medical management has emerged as an exemplary injustice of recognition. Specifically, the surgical protocol that aims to make unusual genitalia invisible, and the medical obfuscation of intersexuality's ramifications for the cultural construction of gender, have been written as a wrong by Anne Fausto-Sterling and Suzanne Kessler. By mapping intersex treatment as a discursively produced injustice, I argue that it is accordingly within discourse that the wrongs of intersex treatment may be redressed – not by undoing past surgeries, or by punishing clinicians as personally “guilty.”

Nineteenth-century animal protectionists endeavored to frame laws that gave animals direct legal protections, and they conducted large-scale public education campaigns to define the harm of cruelty to animals in terms of animals’ own suffering. However, animal suffering was only one of the many possible definitions of cruelty's harms, and when judges and other legal interpreters interpreted animal protection laws, they focused less on animal suffering and more on human morality and the dangers of cruelty to human society. Battling over the definition of human guilt for cruelty, protectionists and judges drew and redrew the boundaries of the law's reach and the moral community.

Morrison's Beloved presents a complex anatomy of guilt. This is the perception that underwrites Slavoj Zizek's recruitment of the 1987 novel in his recent discussion of ethics and politics. In Zizek's Fragile Absolute (2000), he claims that Sethe's murder of her child as a privileged instance of what he terms “the ethical act.” Drawing on Lacanian psychoanalytic ethics to articulate a relation between the psychic and the political, Zizek argues that the only truly ethical act is one that breaks with the cycle of law and transgression, evading the superego through a suicidal “shooting oneself in the foot.” This paper argues that while Zizek's reading of Beloved is in some ways illuminating, Morrison's novel itself offers a profound analysis of Zizek's conception of the “ethical act,” exposing the limited nature of this act as part of a larger political strategy. I propose a reading of Morrison's novel that focuses on its exploration of violence and guilt, reading it both alongside and against dominant psychoanalytic conceptions derived from Freud, Lacan, and Zizek's deployment of both.

Rabbinic literature of Late Antiquity encompasses legal and exegetical texts. Whereas legal texts delineate criminal procedures to determine a guilty party and advise appropriate punishment, exegetical texts suggest an almost entirely indeterminate and indeterminable understanding of guilt. This chapter examines rabbinic interpretations of the paradigmatic biblical story of guilt, Cain's murder of his brother Abel, in which Cain's guilt is mitigated and the stable relationship between evidence and guilt is challenged. I argue that these conflicting views of guilt in early rabbinic thought need not be harmonized – that a legal understanding of determinate guilt need not require a philosophical, or theological, counterpart.

None of the standard theories of punishment can explain the “remorse discount” juries and judges seem inclined to give when sentencing. This chapter argues that sentencing ought to change its nature when a defendant is remorseful, sanctioning instead of punishing. The emotion of remorse is so closely tied to retribution that there is no further need for punishment. Instead, a merciful settlement, or sanction, is required to bring an end to the retributive pain of remorse. In short, for remorseful defendants, we sentence in order to mitigate remorse, rather than looking to remorse in order to mitigate sentence.