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33 Vt. L. Rev. 519 (2008-2009)
Rationalizing Indirect Guilt

handle is hein.journals/vlr33 and id is 525 raw text is: RATIONALIZING INDIRECT GUILT

Scott A. Anderson*t
INTRODUCTION
This Essay attempts to say something useful about how the emotion of
guilt is of some interest for those who think about the design and scope of
legal and state institutions, including particular laws. I will argue that some
feelings of guilt,' which at first may seem irrational, may nonetheless signal
the existence of ethical failures. These failures will sometimes be best
addressed by collective responses, including legal and institutional changes.
In turn, such changes can be expected to reduce the burden of guilt that
encumbers us sometimes. It is worth noting at the outset that guilt is not one
of the emotions psychologists currently classify as primary or, therefore,
expect to find universally in humans.2 So the discussion here will, it seems,
have a local character to it and should not be read as making timeless claims
about human beings as such. That said, a role for the emotion of guilt is
embedded deeply enough in the ethics we have inherited in the West that it
would require an ambitious set of revisions to our ethical views to explain how
we might live as well without it. Though, as we will see, this too is disputed.'
Many of the issues raised in this discussion will be instantiations of
issues that arise generically when one thinks seriously about emotions as a
part of normative theorizing. Other issues will pertain to guilt, but not to
most other emotions. Ultimately, I will suggest that part of the interest in
thinking about the emotion of guilt with respect to law and institutions is to
guide us towards a more interesting understanding of agency than is
common when thinking about the relationship of individuals to institutions.
In turn, we shall see how the legal and institutional context in which an
agent lives may affect what she is responsible for, and thus, the extent to
which agents have good grounds for feeling guilty.
* Assistant Professor of Philosophy, University of British Columbia; Ph.D. 2002, University
of Chicago; B.A. 1987, with highest distinction, Indiana University. This Essay is the successor to a talk
presented at the University of Chicago Law School conference Emotion in Context: Exploring the
Interaction between Emotions and Legal Institutions in May 2008.
 The author wishes to thank Susan Bandes for the opportunity to take part in this event, and
the audience for helpful discussion. Thanks go also to Chad Flanders and Martha Nussbaum for helpful
comments. This Essay was written while the author was, earlier, Law and Philosophy Fellow and, later,
Visiting Scholar at the University of Chicago Law School, whose support is gratefully acknowledged.
1. I will use guilt feelings, feelings of guilt, feeling guilt, and feeling guilty
interchangeably throughout, as context and felicity of expression seem to work best to me.
2. See, e.g., JONATHAN H. TURNER & JAN E. STETS, THE SOCIOLOGY OF EMOTIONS 14-15
(2005) (comparing statements of primary emotions). Of twenty typologies of the primary emotions
surveyed, only two list guilt as a primary emotion. Id.
3. See infra note 9 and accompanying text.

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