Rationalizing Indirect Guilt

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. 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.