by Claude Opus 5.5
Nussbaum argues shame is an unreliable basis for law because it degrades. Does the same argument apply to informal online shaming, or does it lose force outside the state?
In Hiding from Humanity (2004), Martha Nussbaum argues that a liberal society should be deeply suspicious of shame and disgust as foundations for law. Her immediate target was the revival of shaming penalties in American criminal justice, such as requiring offenders to wear signs or advertise their convictions, which some legal scholars had defended as cheap and expressive alternatives to prison. In the case behind these seminars, no court has imposed anything of the kind. But the publication of the accused students’ names, followed by intense online condemnation and the harassment of a family wrongly connected to the case, looks very much like shaming. The question is whether Nussbaum’s argument transfers from the state to the crowd, or whether it depends on features peculiar to state power.
Nussbaum’s argument
Nussbaum distinguishes shame from guilt. Guilt attaches to an act: I did something wrong, and I can make amends. Shame attaches to the self: I am defective, exposed, lesser. Drawing on psychoanalytic accounts, she links what she calls primitive shame to a deep human wish for invulnerability and control, and to the tendency to project our own vulnerability onto marginalised groups. Shame is therefore prone to target those who are already stigmatised, and its demand is not repair but the lowering of a person’s standing.
Her case against shaming penalties draws together several strands. They are an affront to human dignity, because they aim to degrade rather than to hold to account. They invite the public to participate in punishment, which is a form of mob justice: the state sets the process in motion but cannot control what people do with it. They are unreliable and disproportionate, since the severity of the punishment depends on the reactions of others rather than on the seriousness of the wrong. They may fail to deter and may even entrench offending, by giving people a spoiled identity with little to lose. And they risk widening the net of social control. Underlying all this is a liberal commitment: the state must treat each citizen with equal respect, and a state that deliberately degrades citizens violates that commitment.
Arguments that lose force outside the state
Some of this depends on the state. The liberal principle of equal respect is a constraint on public power. Private individuals are not bound by it in the same way; they may love, admire, avoid and condemn whom they please, and moral criticism is part of how communities express and defend their values. Expressing disapproval of a person one believes has done something terrible is not, in itself, a violation of anyone’s rights, and a society in which no one could voice condemnation would be stifling and would leave many wrongs unnamed.
The state also has a monopoly on legitimate coercion. Its shaming penalties are imposed after conviction, backed by force and difficult to escape. An online post, however unpleasant, is speech. The person criticised can, in principle, respond, leave the platform or be defended by others. On this view, informal shaming belongs to the domain of free expression, and Nussbaum’s argument does not straightforwardly apply.
There is also an argument from failure. Some feminist writers have argued that public naming has been one of the few ways in which survivors and their supporters can respond when institutions do not. If the formal processes in this case are as flawed as the complainant’s lawyers allege, informal condemnation may look less like a mob than like a community stepping into a vacuum.
Arguments that gain force
Other parts of Nussbaum’s argument become stronger, not weaker, outside the state. The mob justice objection is a complaint that shaming penalties outsource punishment to an uncontrolled public. Online shaming is that public with no state in front of it: no procedure, no standard of proof, no proportionality, no end date. The misidentification of an unconnected man in this case is a textbook example of the unreliability she warned about. A court that made such a mistake could be appealed; a crowd cannot.
The disproportion objection also intensifies. A shaming penalty is at least set by a judge. Online, the severity of the response depends on virality, which tracks neither culpability nor evidence. Two people accused of similar conduct may face wildly different consequences depending on an algorithm, the institution they attended, or whether a journalist found the story compelling.
And the dignity objection does not depend on who degrades. If the wrong of shaming penalties lies partly in their aim of lowering a person’s standing as a human being, rather than condemning what they did, then that wrong is present whenever the aim is present. Much online shaming is explicitly of this kind: it reduces a person to a single accusation and invites the world to treat them as nothing else, permanently.
Finally, the liberal argument is not entirely irrelevant. Informal shaming is often amplified by institutions with power, such as universities, employers and news organisations. When those institutions act on or encourage public shaming, the line between private speech and public sanction blurs.
A distinction worth keeping
Nussbaum’s own framework suggests where the line might lie. She does not object to guilt, to accountability, or to strong moral condemnation of wrongful acts. She objects to degradation. Applied to online speech, that suggests a distinction between criticising conduct, demanding that institutions act, and supporting a complainant, which are compatible with respect for the accused, and campaigns that seek to make a person permanently unemployable, unhoused or unsafe, which are not. The first is the kind of public moral response a community needs. The second reproduces, without any procedural safeguards, the very thing a liberal state is forbidden to do.
So the argument partly loses force outside the state, because individuals have expressive freedoms the state lacks. But its most important elements, about dignity, reliability and proportion, apply wherever shaming occurs, and arguably apply more urgently to the crowd than to the court.