¹ Sophocles, Philoctetes, lines 169–76.

² See, for example, the treatment of compassion in the legal theorists cited in note 6 below.

³ Nietzsche emphasizes, for example, the fact that the world Mitleid stresses the concurrent suffering of the onlooker; he typically uses it when he wants to argue that pity simply doubles the amount of suffering. On the other hand, the onlooker's pain is part of the definition of eleos in Aristotle and misericordia in the Roman Stoics, and still figures today in definitions of pity or compassion: see, for example, the excellent analysis in Ortony, Andrew, Clore, Gerald L., and Collins, Allan, The Cognitive Structure of Emotions (Cambridge: Cambridge University Press, 1988).CrossRefGoogle Scholar

⁴ Thus, Cicero uses misericordia to translate the Greek eleos; Nietzsche employs the German Mitleid to render Rousseau's pitié and also eleos and misericordia; Kant, alluding explicitly to the ancient Stoics (whether Greek or Roman) uses Mitleid; modern translators of both Aristotle and the Greek tragedians use “pity” for eleos, as they also do for Rousseau's pitié.

⁵ Posner, Richard A., The Economics of Justice (Cambridge: Harvard University Press, 1988), pp. 1–2.Google Scholar Having assumed “that people are rational maximizers of satisfactions,” Posner now asks:

Is it plausible to suppose that people are rational only or mainly when they are transacting in markets, and not when they are engaged in other activities of life, such as marriage and litigation and crime and discrimination and concealment of personal information? … But many readers will, I am sure, intuitively regard these choices … as lying within the area where decisions are emotional rather than rational.

In other words, we can respect people's choices as rational in the normative sense only if we can show that they do not reflect the influence of emotional factors.

⁶ For two examples, see Henderson, Lynne N., “Legality and Empathy,” Michigan Law Review, vol. 85 (1987), pp. 1574–1653;CrossRefGoogle Scholar and Massaro, Toni M., “Empathy, Legal Storytelling, and the Rule of Law: New Words, Old Wounds,” Michigan Law Review, vol. 87 (1989), pp. 2099–2127;CrossRefGoogle Scholar see also Minow, Martha and Spelman, Elizabeth V., “Passion for Justice,” Cardozo Law Review, vol. 10 (1988), pp. 37–76;Google Scholar and Gewirtz, Paul, “Aeschylus' Law,” Harvard Law Review, vol. 101 (1988), pp. 1043–55.CrossRefGoogle Scholar Among these authors, only Minow and Spelman criticize the emotion-reason dichotomy. None presents any analysis of emotion that would clarify the role of cognition in emotion.

⁷ California v. Brown, 479 U.S. 538ff. (1986); for further discussion, see Section VI.D below.

⁸ I discuss this account in Nussbaum, , The Fragility of Goodness: Luck and Ethics in Greek Tragedy and Philosophy (Cambridge: Cambridge University Press, 1986),Google Scholar Interlude 2; and also in Nussbaum, , “Tragedy and Self-Sufficiency: Plato and Aristotle on Fear and Pity,” in Essays on Aristotle's Poetics, ed. Rorty, Amélie O. (Princeton: Princeton University Press, 1992), pp. 261–90;Google Scholar a longer version appears in Oxford Studies in Ancient Philosophy, vol. 10 (1992), pp. 107–60. See also the very perceptive analysis of both Aristotelian and tragic pity in Halliwell, Stephen, Aristotle's Poetics (London: Duckworth, 1986).Google Scholar

⁹ To analyze the connection between emotion and evaluative thinking is the central purpose of the Gifford Lectures: see note *above.

¹⁰ Aristotle was aware of this to some extent, since he frequently stresses the fact that one's sense of pleasure and pain, and related emotional responses, are influenced by moral education. His examples of cultural deformation, however, tend not to focus on poverty (they involve, for example, the excessive valuation of money and honor). For modern work on adaptive preferences, see Elster, Jon, Sour Grapes (Cambridge: Cambridge University Press, 1983),CrossRefGoogle Scholar and Elster, , “Sour Grapes – Utilitarianism and the Genesis of Wants,” in Amartya, Sen and Bernard, Williams, eds., Utilitarianism and Beyond (Cambridge: Cambridge University Press, 1988), pp. 219–38.Google Scholar See the related criticism of deformed preferences in John Harsanyi, “Morality and the Theory of Rational Behaviour,” in Sen and Williams, Utilitarianism and Beyond, pp. 39–62. The adaptation of preferences to circumstances in situations of poverty and hierarchy is a major theme in Amartya Sen's work on development: see, for example, the essays in his Resources, Values, and Development (Oxford: Basil Blackwell, 1984).

¹¹ Smith, Adam, The Theory of Moral Sentiments (New York: Liberty Press, 1976), p. 12.Google Scholar Smith uses his device of the “judicious spectator” to distinguish proper from improper emotions; but it is important that this spectator– a model for public rationality – is rich in emotion. I discuss Smith's conception of impartiality in chapters 3 and 4 of Poetic Justice: The Literary Imagination in Public Life (Boston: Beacon Press, 1996), with detailed discussion of texts from The Theory of Moral Sentiments. For a related discussion of Smith, see my essay “Steerforth's Arm: Literature and the Moral Point of View,” in Nussbaum, , Love's Knowledge (New York: Oxford University Press, 1990).Google Scholar

¹² Aristotle, Rhetoric, 1385b14, 1385b34–1386a1, 1386b7, b10, b12, b13; Poetics, 1453a4, 5.

¹³ Euripides, Bacchae, line 1244; see e.g., the excellent English version by C. K. Williams (New York: Farrar, Straus, and Giroux, 1990), with an introduction by M. Nussbaum.

¹⁴ Rousseau, Jean-Jacques, Emile, trans. Allan Bloom (New York: Basic Books, 1976), p. 224;Google Scholar I have altered Bloom's translation in several places, in particular substituting “human being” for “man.” Bloom, it is clear, intends “man” in a gender-neutral sense, as the French strongly suggests, and as the Greek discussions that Rousseau is following would require (Greek, unlike French, has two words commonly translated as “man”: anthrôpos for the species, anêr for its male members). A gender-neutral translation is essential to make sense of Rousseau's overall argument. By now, however, it is probably wrong to assume that the word “man” would be understood gender-neutrally by readers.

¹⁵ This appears to be the view of Adam Smith in some passages: “By the imagination we place ourselves in his situation, we conceive ourselves enduring all the same torments, we enter as it were into his body, and become in some measure the same person with him, and thence form some idea of his sensations …” (Smith, The Theory of Moral Sentiments, p. 9). This is, however, corrected by his later observation that the relevant viewpoint is that of the judicious spectator — not that of the sufferer, which may be ill-informed.

¹⁶ This seems to be the view of Schopenhauer, Arthur, Preisschrift über das Fundament der Moral (Prize essay on the foundation of morality) (Berlin: de Gruyter, 1979), p. 107:Google Scholar Compassion requires “that in his pain as such I directly feel, with suffering, his pain as I otherwise feel only my own, and on that account want his good directly, as I otherwise want only my own. This, however, requires that in a certain manner I should be identified with him, that is to say, that the entire distinction between me and that other person, which is the basis for my egoism, should be, at least to a certain extent, removed” (my translation).

¹⁷ See Cavell, Stanley, “Knowing and Acknowledging,” in Cavell, Must We Mean What We Say? (New York: Scribner's, 1969; reprint, Cambridge: Cambridge University Press, 1976), pp. 238–66.Google Scholar

¹⁸ See Aristotle, Rhetoric, 1386a22–28, 1382b26–27; Poetics, 1453a5–6. For discussion, see Halliwell, Aristotle's Poetics; and Nussbaum, “Tragedy and Self-Sufficiency,” pp. 274–75.

¹⁹ See Hilberg, Raul, The Destruction of the European Jews, abridged edition (New York: Holmes and Meier, 1985), pp. 274–93;Google Scholar on “breakthroughs,” I am grateful for Jonathan Glover's discussion in an unpublished paper.

²⁰ On the relationship between that basic minimum and equality, see my “Human Capabilities, Female Human Beings,” in Martha, Nussbaum and Jonathan, Glover, eds., Women, Culture, and Development (Oxford: Clarendon Press, 1995).Google Scholar

²¹ Rawls, John, A Theory of Justice (Cambridge: Harvard University Press, 1971).Google Scholar

²² For some attempts to describe the political consequences of this difference from Rawls, see the essays by Nussbaum and Sen, and Nussbaum's commentary on O'Neil, , in The Quality of Life, ed. Martha, Nussbaum and Amartya, Sen (Oxford: Clarendon Press, 1993); and alsoGoogle ScholarNussbaum, , “Aristotelilan Social Democracy,” in Liberalism and the Good, ed. Douglass, R. B. et al. (New York: Routledge, 1992), pp. 203–56.Google Scholar

²³ Smith, The Theory of Moral Sentiments, pp. 17–18.

²⁴ I develop this position in much more detail, with regard to emotions in general, in Gifford Lecture 1 (supra note *).

²⁵ Rousseau, Emile, p. 222. One might, following Ludwig Wittgenstein, try a different line of argument, saying that the connection between the emotion and action taken to relieve suffering is criterial, not causal. In the Gifford Lectures (Lecture 2), I give the reasons why I do not want to take this route. Although in many cases emotions will lead to related action, there are many reasons why that might not occur in a particular case, and I see no reason why we should withhold ascription of the emotion.

²⁶ Again, this is a position for which I argue in detail in Gifford Lecture 1. In Lecture 2, I show that recent work in cognitive psychology supports this conclusion.

²⁷ See Nussbaum, “Tragedy and Self-Sufficiency” (supra note 8).

²⁸ On identification, see Halliwell, Aristotle's Poetics (supra note 8), where Halliwell argues that this is promoted by keeping the tragic hero within the bounds of human frality and imperfection. Though the hero does not fall through wickedness, his having flaws makes possible the audience's sympathetic response to the tragedy.

²⁹ See Okin, Susan Moller, Justice, Gender, and the Family (New York: Basic Books, 1991),Google Scholar reviewed by Nussbaum in New York Review of Books, October 2, 1992.

³⁰ Plato, Apology, 41D, cf. 30D-C; on this, see Vlastos, Gregory, Socrates: Ironist and Moral Philosopher (Cambridge: Cambridge University Press, 1991).CrossRefGoogle Scholar

³¹ It appears that for Socrates such events can affect the degree of one's flourishing, though not flourishing itself: see Vlastos, Socrates. The Stoics refuse to admit even this much.

³² See the extensive development of this line of argument in Nietzsche — especially Dawn, 135 (“To offer pity is as good as to offer contempt”); and Zarathustra, “On the Pitying.” Nietzsche actually makes three related points here: (1) pity denigrates the person's own efforts by implying that they are insufficient for flourishing; (2) pity inappropriately inflates the importance of worldly goods; and (3) pity has bad consequences, undermining self-command and practical reason.

³³ Kant, Doctrine of Virtue, 35, Akad., p. 457, trans. James W. Ellington (Indianapolis: Hackett, 1982). Kant's entire argument in this passage is very close to, is indeed appropriated as a whole by, Nietzsche — a fact that ought to give pause to those who think Nietzsche's view cruel or proto-fascist. Both Kant and Nietzsche add a further argument: that pity adds to the suffering that there is in the world, by making two people suffer rather than only one (Kant, ibid.; Nietzsche, Dawn, 134).

³⁴ See Nietzsche, Dawn, 251 (called “Stoical”), 133; Zarathustra, IV, “The Sign.”

³⁵ Kant, Doctrine of Virtue, 34, Akad., p. 457, Ellington trans., p. 122.

³⁶ See Nussbaum, “Tragedy and Self-Sufficiency,” for a detailed analysis.

³⁷ See Nussbaum, , “Poetry and the Passions: Two Stoic Views,” in Passions & Perceptions, ed. Jacques, Brunschwig and Martha, Nussbaum (Cambridge: Cambridge University Press, 1993).Google Scholar

³⁸ I analyze the Stoic roots of Nietzsche's position on pity, and draw some new interpretive consequences, in Nussbaum, , “Pity and Mercy: Nietzsche's Stoicism,” in Nietzsche: Genealogy, Morality, ed. Richard, Schacht (Berkeley and Los Angeles: University of California Press, 1994), pp. 139–67.Google Scholar

³⁹ Smith, The Theory of Moral Sentiments, p. 136; see the excellent account of these aspects of Smith's thought in Coase, Ronald, “Adam Smith's View of Man,” Journal of Law and Economics, vol. 19 (1976), pp. 529–46.CrossRefGoogle Scholar

⁴⁰ Seneca, On Mercy, Book II.

⁴¹ Nietzsche, Friedrich, Genealogy of Morals, trans. W. Kaufmann (New York: Vintage, 1967), Book III, ch. 14.Google Scholar

⁴² Ibid.

⁴³ Kant, Doctrine of Virtue, 34, Akad., pp. 456–57, Ellington trans., p. 121.

⁴⁴ On the difficulties of interpreting the Stoic position here, see my discussion of the scholarly literature in Nussbaum, , The Therapy of Desire: Theory and Practice in Hellenistic Ethics (Princeton: Princeton University Press, 1994), ch. 10.Google Scholar

⁴⁵ Kant, Doctrine of Virtue, 34, Akad., p. 457, Ellington trans., pp. 121–22.

⁴⁶ Ibid., 35, Akad., p. 457, Ellington trans., p. 122.

⁴⁷ Kant, Grounding for the Metaphysics of Morals, section 1, Akad., p. 394, Ellington trans., p. 7.

⁴⁸ Ibid., section 1, Akad., p. 394, Ellington trans., pp. 7–8.

⁴⁹ This image is from Hierocles, a Stoic of the first-second centuries A.D.; see the discussion in Nussbaum, The Therapy of Desire, ch. 9. The job of a reasonable person is to “draw the circles somehow towards the centre,” and “the right point will be reached if, through our own initiative, we reduce the distance of the relationship with each person.” (See my discussion in ibid., pp. 34–44)

⁵⁰ Aristotle, Politics, Book II, ch. 4.

⁵¹ Sen, Amartya, “Rational Fools,” Philosophy and Public Affairs, vol. 6 (Summer 1977), pp. 317–44,Google Scholar reprinted in Sen, , Choice, Welfare, and Measurement (Oxford: Blackwell, 1982).Google Scholar

⁵² Notice that the family altruism to which Sen alludes is not the “altruism” assumed in standard economic models, which is really a kind of instrumental dependency, contingent on the familial bond serving the good of the agent in some way.

⁵³ Dickens, Charles, Hard Times, ed. David, Craig (New York: Penguin, 1963), p. 131.Google Scholar

⁵⁴ See Gewirtz, “Aeschylus' Law” (supra note 6); and Posner, Richard, Law and Literature (Cambridge: Harvard University Press, 1988),Google Scholar where Posner perceptively suggests that this is one of the most important contributions literature can make to the law.

⁵⁵ For some valuable assistance in that task, see the section on compassion in Bennett, William J., The Book of Virtues (New York: Simon and Schuster, 1993).Google Scholar

⁵⁶ In Gifford Lecture 6, I give examples of this.

⁵⁷ These may appear to be well correlated with GNP per capita, if one considers only gross contrasts, such as those between Europe and North America on the one hand, and the poorer regions of Africa on the other. If one breaks things down more finely, however, large and significant discrepancies begin to appear; for many examples of this, see Drèze, Jean and Sen, Amartya, Hunger and Public Action (Oxford: Clarendon Press, 1989);Google Scholar and the Human Development Reports for 1993 and 1994, prepared by the United Nations Development Program (New York: United Nations, 1993, 1994).

⁵⁸ In addition to Sen and Drèze, this group includes the contributions to the Human Development Reports, including Sudhir Anand and others. For a similar approach, see Dasgupta, Partha. An Inquiry into Well-Being and Destitution (Oxford: Clarendon Press, 1993).Google Scholar For an application of this approach to the situation of women in developing countries, see Nussbaum and Clover, eds., Women, Culture, and Development (supra note 20).

⁵⁹ See the introduction to Nussbaum and Sen, eds., The Quality of Life (supra note 22).

⁶⁰ For examples in this area, both good and bad, and further discussion, see Nussbaum, Poetic Justice (supra note 11).

⁶¹ Herbert, Wechsler, “Toward Neutral Principles of Constitutional Law,” Harvard Law Review, 1959, pp. 1ff.Google Scholar Wechsler's argument is discussed in greater detail in Nussbaum, Poetic Justice, ch. 4.

⁶² Brown v. Board of Education, 347 U.S. 483 (1954).

⁶³ Nelson v. Farrey, 874 F.2d 165 (7th Cir. 1989).

⁶⁴ Ibid., p. 1229.

⁶⁵ Ibid., pp. 1228, 1229.

⁶⁶ Ibid., p. 1229. We do not exactly see the belief that Posner himself could suffer a similar damage, since the damage in question requires the victim to be very young; but we do have, I think, the sense that such damage is not an alien thing, that it might happen to someone that Posner knows or cares about.

⁶⁷ Compare Posner's criticism of the opinions in Bowers v. Hardwick (478 U.S. 1186 [1986]) for their lack of “empathy” with the situation of the homosexual in contemporary American society:Posner, Richard A., Sex and Reason (Cambridge: Harvard University Press, 1992), p. 345ff.Google Scholar

⁶⁸ In Poetic Justice, I discuss a recent sexual harassment case that contains similar material: Mary, J.Carr, v.Allison Gas Turbine Division, General Motors Corporation, U.S. Court of Appeals for the Seventh Circuit, July 26, 1994.Google Scholar

⁶⁹ In Posner, Richard A., The Problems of Jurisprudence (Cambridge: Harvard University Press, 1990),Google Scholar he presents a sympathetic discussion of appeals to sympathy under the rubric “Literary and Ferninist Approaches”; see also his discussion of Bowers v. Hardwick in Sex and Reason (supra note 67).

⁷⁰ In this connection Smith's allegiance to Stoicism should be fully recognized: the “invisible hand” is not some blind natural force, but Zeus's Providence, deliberately, wisely, and justly arranging things. It is because markets are thought to embody ideal justice, and not because they promote interests, that Smith relies on them to the extent that he does. For criticism of the idea that market's do in fact have this high moral standing, see Sen, Amartya, “The Moral Standing of the Market,” Social Philosophy and Policy, vol. 2, no. 2 (Spring 1985), pp. 1–19.CrossRefGoogle Scholar

⁷¹ Alexis de Tocqueville, Democracy in America.

⁷² Bennett, The Book of Virtues (supra note 55), p. 180.