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October 13, 2006

Shaming punishments and communitarianism

Orin Kerr has here effectively jumped into today's debate over shaming punishments (basics here).  Orin terrifically explains my communitarian-based grounds for suggesting that shaming punishments may actually honor and strengthen human dignity:

Don't [shaming punishments] rely on, and ultimately reinforce, the notion that the offender is a valued member of the community? It seems to me that the offender feels shame precisely because he values his position in the community. Thus judges hand down such punishments only when they think the offender values his position and will want to restore it to its earlier status. In that sense, then, shaming punishments are not about dehumanization, but about hope and community: the punishment is based on and recognizes the hope that the offender will feel a strong enough connection to the community that he will feel shamed, and that the community will value that person's connection to the community enough to react to the offender.

Along these lines, consider this Wikipedia entry on Crime in Japan which notes here the theory that "an important factor keeping crime low [in Japan] is the traditional emphasis on the individual as a member of groups to which he or she must not bring shame."

October 13, 2006 at 04:01 PM | Permalink


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» The Future of Shaming (and Restorative Justice), Part 5 of ___? from PrawfsBlawg
Readers interested in some background to this topic should check out posts one, two, three, and four of this series. The second post in particular has some fruitful discussions and exchanges in the updates and comments. The fourth post provides some ba... [Read More]

Tracked on Oct 18, 2006 12:34:25 AM


I have a response to this up at Prawfs (in the update section):

I wrote:
Orin also raises an interesting question. He asks: doesn't shaming "rely on, and ultimately reinforce, the notion that the offender is a valued member of the community?" This notion that shaming is about, to use Orin's words, "hope and community" is more likely the case in the context of John Braithwaite's advocacy of "reintegrative shaming." The kind of shaming Kahan has in the past endorsed -- which is the kind that is typically practiced in American jurisdictions today -- is not predicated on subsequent reintegration ceremonies for offenders. Rather they were simply opportunities to parade offenders before the public eye for derision or worse. (Indeed, those subject to shaming have sometimes had vigilante violence visited upon them, which is why having a policeman or guard near the offender being shamed is often necessary. That safeguard is not in place, I would guess, on account of the social meaning of shaming being one that speaks in the register of "hope and community." It's there to protect against what Jim Whitman calls the pitch and yaw of the crowd.)

Posted by: Dan Markel | Oct 13, 2006 5:58:37 PM

Professor Berman,

As I stated in one of my comments to Dan's post at PrawfsBlawg:

Shame seems to work best in intimate social contexts in which the actors involved are personally acquainted with each other, which raises questions as to its effectiveness as a form of punishment in a (rightly, impersonal) criminal justice system, to wit:

'One of the reasons I value and nurture a strong social bond with my spouse is that she will tell me when I get drunk and make an ass of myself at a dinner party (when no one else will tell me). Conversely, because I have a strong social bond with my spouse, it is easier for disapproval to be expressed that it is with others who have weak bonds with me. And it is easier for disapproval to be expressed constructively. If a person who I meet for the first time at the dinner party tell me that I am being a drunken ass, I am more likely to respond to this aggressively than I am when it comes from my wife whom I know loves and cares for me. When disapproval results in the acknowledgement of shame, shame can persuade actor against what they come to recognise as wrongdoing (such a violence).'---John Braithwaite

The above is taken from the foreword to an important work by Thomas J. Scheff and Suzanne M. Retzinger, Emotions and Violence: Shame and Rage in Destructive Conflicts (1991). In this book Scheff and Retzinger note the important fact that 'Shame is expressed and discussed openly in traditional societies , but is disguised and denied in modern civilization, both by individuals and institutions.' In other words, 'in our civilization, shame is shameful....' The experimentation with shaming punishments by the legal system is therefore rather dangerous insofar as such experimentation should not carry the burden of changing overnight our culture's denial of shame ('except under extreme circumstances' according to our authors). Highly visible shaming of undesirable acts may be integral to social order and socialization, but it's not clear that such shaming should be the prerogative of the criminal justice system, particularly if there's a lack of widespread understanding of the meaning and mechanisms of shame in our culture, let alone an acknowledgement of shame as such.

Thomas Scheff has argued that there is a 'masking of shame' in our society, the likes of which has never existed in Japanese culture, and thus the example of Japanese crime rates is no longer of obvious relevance.

For shame to have the desired effect when conceived as an alternative form of punishment, the person experiencing the shame must not only imagine an audience who will know and think something bad about her behavior, but she must come to identify with it as well. In societies lacking a communitarian ethos (such as ours) it's hard to envisage this occurring on a routine basis. In other words, it simply seems highly unlikely that we can reliably depend upon a criminal to make that final step, to identify with the observer, to see things through their eyes. What is often conspicuosly lacking in criminals is this capacity for empathic identification: all the more so when the person(s) one is to identify with is the de facto embodiment of the community's sense of right and wrong, of the community's standards for proper behavior. Cf.: Anna Wierzbicka:

'[T]he older meaning of shame reflected a social climate in which other people's view of the individual was expected to act as a powerful means of control: it was expected that people wouldn't do certain things because wouldn't want other people to know, and to think, bad things about them; and it was assumed that the very thought of other people's potentially negative view of a person could make this person blush.

The modern meaning of shame, however, does not reflect a kind of society where "other people's" anticipated view of us can be expected to act as a powerful regulator of our behaviour. In the modern Anglo society--as reflected in the mirror of semantics--other expectations and other concerns have come to the fore, as reflected, in particular, in the rise of the concept of *embarrassment* in modern English.' See her book, Emotions across Languages and Cultures: Diversity and Universals (1999).

Posted by: Patrick S. O'Donnell | Oct 15, 2006 7:55:37 PM

Shame relies on the perpetrator placing value in community standards, feeling some regret at having transgressed them, and a desire to regain honor. Most of what are called "shaming" punishments are instead based on embarrassment and/or humiliation. That's a very different mechanism, and has a different result.

Posted by: Bob Jenkins | Oct 18, 2006 1:38:58 PM

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