49. Bandes (1997). See also, more recently, Bandes (2016).
50. I owe this question to Jeff McMahan.
51. See Bandes (2016) on the socially constructed idea of closure and its relatively recent origin.
52. Harsanyi (1982), arguing that these preferences ought to be excluded from the social choice function. The point is as old as Utilitarianism: Mill’s The Subjection of Women does not consider the pain of men at having their unjustified privileges abridged as a cost weighing against women’s equality. It’s not that these costs get outweighed by the benefits; they are simply not considered at all, as in Harsanyi’s proposal.
53. I owe this suggestion to Mary Anne Case.
54.
Turner v. Saffley, 482 U.S. 78 (1987), holding that prisoners serving life terms without the possibility of parole nonetheless have a constitutional right to get married, even though they very likely will never consummate the marriage. Marriage, the Court held, has expressive and religious meanings.
55. See Judge Posner’s dissenting opinion in Johnson v. Phelan, 65 F. 3d 144, in which a male prisoner complained that the practice of having female guards observe
him as he showered and used the toilet violated his sense of Christian modesty.
Posner commented that some judges “view prisoners as members of a different
species, indeed as a type of vermin, devoid of human dignity and entitled to no respect. … I do not myself consider the 1.5 million inmates of American prisons and jails in that light.”
56. One valuable study that ought to be made available in English translation is Archimandritou (2000). A detailed summary of the book’s contents was given to me orally by the author.
57. See my extensive treatment of this question in Nussbaum (2004a).
58. See Kahan (1996) and my critique in Nussbaum (2004a).
59. These five arguments are elaborated in Nussbaum (2004a).
60. See many references to studies of shame penalties in Nussbaum (2004a).
61. See Posner (2000). His argument and other related historical arguments are considered in detail in Nussbaum (2004a).
62. Gilligan (1997).
63. See Schulhofer (1995).
64. See Nussbaum (2004a).
65. For a good, albeit brief, discussion of this point, see McConnell (2012). And see Nussbaum (2014b).
66. See Levmore and Nussbaum (2010).
67. The theory is given in Braithwaite (1989); the practical implementation, with a thin-ner theoretical frame, in Braithwaite and Mugford (1994). For an overall assessment of a wide variety of practices of “restorative justice,” see Braithwaite (2002).
286
Notes to Pages 201–210
68. To a large extent, the part with which I agree is the account of the approach in the later article; the earlier book contains a lot of material that is not necessary for the practice as described, and less appealing.
69. See Braithwaite (1989, 81).
70. In Braithwaite (2002), however, Braithwaite clarifies that we should distinguish between restorative processes (dialogue, conferencing) and restorative values (reform, reintegration). A restorative process might impose punitive and retributive sanctions; a process that fails to include all the community members who should in principle be included can still advance restorative goals.
71. See Braithwaite (1989), and also my correspondence with Braithwaite about Dan Kahan’s proposals, cited in Nussbaum (2004a, ch. 5).
72. Braithwaite and Mugford (1994, 144).
73. Braithwaite and Mugford (1994, 144).
74. Braithwaite and Mugford (1994, 142).
75. Braithwaite and Mugford (1994, 144).
76. Braithwaite and Mugford (1994, 145).
77. Braithwaite and Mugford (1994, 147).
78. See the fuller discussion of the efficacy of all known programs of this type in Braithwaite (1989, ch. 3).
79. Braithwaite and Mugford (1994, 150).
80. Braithwaite and Mugford (1994, 152).
81. Braithwaite and Mugford (1994, 159– 60).
82. Braithwaite and Mugford (1994, 144, 149).
83. See Braithwaite (2002, 152), where Braithwaite describes this as “[t] he most forceful critique of restorative justice.”
84. See Nussbaum (2004a, ch. 4).
85. See my treatment of the issue in “Equity and Mercy,” in Nussbaum (1999a); and for a new translation of De Clementia and De Ira by Robert Kaster, see Kaster (2010).
86. See Nussbaum (2001, chs. 6– 8).
87. I did not understand this distinction in my earlier writing on mercy. I discuss it more fully in Nussbaum (forthcoming a).
88. On Woodson v. North Carolina (1976) and sympathy at the penalty phase of a capital case, see Nussbaum (1993).
89. For the influence of Stoicism on Nietzsche’s moral psychology, see Nussbaum (1994a).
90. Nietzsche (1989, II.10).
91. See Nussbaum (1996).
92. Such concerns are not alien to ancient traditions, as Aristotle’s Politics, with its extensive discussions of communal meals and clean water, makes clear.
And consider this wonderful edict of the ancient Indian emperor Ashoka (3rd
century BCE):
On the roads I have had banyan trees planted, which will give shade to
beasts and men. I have had mango groves planted and I have had wells
dug and rest houses built every nine miles. . . . And I have had many
watering places made everywhere for the use of beasts and men. But
this benefit is important, and indeed the world has enjoyed attention
in many ways from former kings as well [as] from me. But I have done
these things in order that my people might conform to Dhamma.
Notes to Pages 211–223
287
Chapter 7
1. Reproduced in Jack (1956, 136).
2. When not otherwise stated, my sources are, for Gandhi, Jack (1956); for King, Washington (1986). I refer to these sources with G and K, and with page numbers given in parentheses in the text. Occasionally I shall also refer to Gandhi (1983), cited as GAut.
3. For a valuable collection of interviews, letters, and other writings, see Mandela (2010, 253) (hereafter C). The extract is from lengthy tape- recorded conversations with author Richard Stengel in the early 1990s, while the two men were working together to edit Long Walk to Freedom into book form. The title is a reference to the Meditations of Marcus Aurelius, emperor and Stoic philosopher, whose reflections have in Greek the title “To Himself.” Other sources for Mandela that I shall frequently cite are his autobiography, Mandela (1994) (hereafter LW), and Carlin (2008) (hereafter Inv).
4. The ideas in this section are treated at greater length in Nussbaum
(forthcoming b).
5. The felony murder rule is still in force in South Africa. Paton seems unclear about this, since at one point he has the judge say that if Absalom really had no intent to kill, “then the court must find that the accused did not commit murder” (Paton 1987, 235).
6. Sorabji (2012) gives a far more detailed reconstruction of Gandhi’s attitudes and practices than I shall attempt here. I focus on the issue of non- anger, and, within this, on the common ground between Gandhi and King.
7. However, Gandhi did think that violence was a constant possibility among his followers, see Sorabji (2012, 122), and it took tremendous preparation to hold a nonviolent protest. He also weeded out followers likely to get angry under
attack (122).
8. See Sorabji (2012, 88– 92). Human self- defense is not an exception, but there are a few cases where he did hold that violence is less bad than the alternative.
9. Elsewhere, Gandhi also holds that hearts are changed by courageous self-
sacrifice: see Sorabji (2012, 83).
10. Dalton (2012, 12– 16). As Dalton shows, Gandhi was also concerned not to use an English term for his idea; he even ran a contest for the Indian- language re
naming of the central concept, insisting that it was “shameful” to permit the struggle to be known only by an English name.
11. Compare ancient discussions of anger in armies: both Philodemus and Seneca emphasize that the type of discipline successful military strategies require is incompatible with a dominant role for personal anger: see Harriss (2001, 103).
12. Gandhi got angry at times, and criticized himself for this: see Sorabji (2012, 200).
13. See Dalton (2012, 16 and 96).
14. See also Dalton (2012, ch. 1). It is interesting to compare the “agonistic human-ism” advocated by Honig (2013); although Honig makes no commitment to non-
anger, she repudiates a politics based on grief and mourning and suggests an
emphasis on solidarity and hope.
15. Nehru (1989, 274– 75). See Dalton (2012, 66– 67 and 168– 69). Nehru does not mention the connection between fear and violence, but this connection is surely salient for Gandhi.
16. See the analysis of this speech in Nussbaum (2013, ch. 9).
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Notes to Pages 224–235
17. He did attempt to impose this demand on his children, unsuccessfully; he was a very judgmental and punitive father, evincing to Harilal attitudes that seem pretty close to anger.
18. Nehru (1939). Nehru’s first sentence: “An only son of prosperous parents is apt to be spoilt, especially in India.” From that point on, the work makes a point of gentle self- mockery, as well as admission of longing and loneliness. On his release from prison, Mandela “wanted first of all to tell the people that I was not a mes-siah, but an ordinary man who had become a leader because of extraordinary
circumstances” (LW 676).
19. Orwell (1949).
20. Erikson (1993, 248).
21. Orwell (1949).
22. See Nehru’s moving meditation on his deficiencies as a husband in Nehru (1989, ch. 2), in a section entitled “The Problem of Human Relationships.”
23. As Sorabji (2012, 32– 42) shows, Gandhi’s attitude owes a good deal to Christian asceticism, sometimes filtered through Tolstoy.
24. See Schalkwyk (2014, 58– 59). Schalkwyk argues that Mandela followed Stoic detachment too far, to include a detachment from all emotions. I find his argument unconvincing. (He argues, for example, that Mandela’s stunned silence on learning of his son Thembi’s death is an example of Stoic non- grief, as if all genuinely grieving people would speak eloquently.)
25. Ahmed Kathrada, a close friend and fellow prisoner, interviewed in CNN’s
“Nelson Mandela,” December 2013.
26. Another early incident he pointedly narrates illustrates the role of charm in race relations. Traveling to Johannesburg in his early twenties with his friend the Regent’s son Justice, he was given a ride by a white attorney, who arranged for his elderly mother to drive them. She was at first uncomfortable being in the company of two young black men, particularly since Justice showed no inhibitions about whites. She watched him carefully. But gradually Justice’s humor and charm got through to her, so that eventually she would even laugh at his jokes.
Disarming anxiety with charm and humor was a strategy Mandela would use to
good effect throughout his career.
27. Schalkwyk (2014, 60).
28. Personal conversations, 2013 and 2014.
29. See Schalkwyk (2014, 55– 56), drawing on the memoirs of Mac Maharaj.
30. Janusz Walus was a Polish immigrant who was attempting to curry favor with right- wing Afrikaners.
31. Carlin narrates this incident based on Coetsee’s memoirs.
32. CNN, “Nelson Mandela,” December 2013.
33. In English, the current anthem goes: “Unity and justice and freedom for the German fatherland! Let us all strive for this, in a brotherly way, with heart and hand. Unity and justice and freedom are the guarantors of happiness. Bloom in the gleam of this happiness, bloom, German fatherland.”
34. Justice Albie Sachs, recently retired from the South African Constitutional Court, and a freedom fighter who helped the ANC during the years of struggle, knows
Mandela well and reported in conversation (2013) that Freeman’s portrayal was utterly uncanny in its likeness.
35. Film clips of this moment can easily be seen, and are prominent in CNN’s docu-mentary “Nelson Mandela.”
36. CNN, “Nelson Mandela.”
Notes to Pages 235–243
289
37. See ESPN (2013).
38. For example, in CNN, “Nelson Mandela”: asked about the disadvantages of
imprisonment, he replies, characteristically, by emphasizing its advantages.
39. See Dalton (2012, 24 and 138, with references).
40. If it were not a distraction from my focus on recent events, I would also be prepared to argue that the American Revolution was an example of non- anger,
though of course not nonviolence. It was accompanied by careful and articulate reasoning, and its objective was not to punish the British for their injustices, but simply to achieve an independent future. Because of these features, it had the strategic advantages of non- anger in winning friendship for the new nation.
41. See Murdoch (1970).
42. Tutu (1999).
43. One excellent survey is Hayner (2001).
44. See the very interesting development of this theme apropos of transitional justice in Eisikovits (2009).
45. See Bennhold (2014).
46. In Oxford, May 2014, name confidential.
47. See Tutu (1999, 22), citing a statement by Justice Mahomed.
48. Tutu (1999, 23). There were some trials in egregious cases: Eugene de Kock, former head of covert operations of the South African police, a squad that hunted down and killed anti- apartheid activists, was tried and convicted in 1996 and sentenced to 212 years in prison. For a remarkable set of interviews with him, see Gobodo- Madikizela (2003).
49. Tutu (1999, 28– 29).
50. Tutu (1999, 29– 31).
51. See Levmore (2014). Levmore argues, however, that cultural strictures against
“ratting” as unmanly often disserve the public interest.
52. See Walker (2006).
53. Personal communication with Albie Sachs.
54. Tutu (1999, 267).
55. Tutu (1999, 269).
56. Tutu (1999, 271).
57. Tutu (1999).
58. Tutu (1999, 273).
59. Tutu (2014).
60. Tutu (2014, 39).
61. In a 1999 speech, on leaving the office of president, Mandela does say, “South Africans must recall the terrible past so that we can deal with it, forgiving where forgiveness is necessary but never forgetting.” Albie Sachs comments (email,
May 18, 2014) that by this point in his career he did allow the word on occasion, since audiences expected it, but that it did not mean buying into the transactional picture. “All it shows … is that he was not hard, relentless, and unforgiving.
Everybody knows that. And in any event, the emphasis of the statement at that stage was not so much on the forgiving part as on the not forgetting.” And the evidence of thousands of pages of his published interviews and writings is that forgiveness is just not the way he himself chose to frame the issue: “The journey was not to forgiveness, it was to Freedom.” Sachs also notes that some ANC
members, e.g., Oliver Tambo and Albert Luthuli, were deeply religious and used Christian terminology, and yet they too focused on freedom as goal. Liberation was liberation of all, white and black.
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Notes to Pages 243–261
62. A range of such commissions might be assessed with this idea in mind.
63. Tutu and Tutu (2014).
64. Lomax (2008).
65. See Fairbanks (2014), describing how former police minister Adriaan Vlok undertook a pilgrimage through South Africa washing the feet of those he had injured.
66. See Dominus (2014). The story includes samples from an exhibit of photographs
of victim/ perpetrator pairs.
67. See Gobodo- Madikizela (2003).
68. Gobodo- Madikizela (2003, 117).
Chapter 8
1. Nehru (1989, 38). The speech, which Nehru reported, was made in 1942.
2. Harriss (2001, 412).
3. On Gandhi’s failure of love, see Orwell (1949).
4. See Harriss (2001, passim).
5. Compare John Rawls’s idea, at the very end of A Theory of Justice (1971), that the institutions of a just society are a model of “purity of heart,” an attitude that we can enter at any time, though often we do not.
6. These ideas are clearly present in Indian traditions, but I’ve had difficulty finding a single word, no doubt on account of linguistic ignorance. The same goes for the many other cultures that I have not investigated at all.
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