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ISBN-13: 9780817357689
Publisher: University of Alabama Press
Publication date: 07/14/2014
Edition description: 1st Edition
Pages: 264
Product dimensions: 6.00(w) x 8.90(h) x 0.90(d)

About the Author

Austin Saratis William Nelson Cromwell Professor of Jurisprudence and Political Science and Associate Dean of the Faculty at Amherst College and the Justice Hugo L. Black Visiting Senior Faculty Scholar at the University of Alabama School of Law. He is the author or editor of over ninety books on law and society, includingImagining Legality: Where Law Meets Popular Culture. He is the editor of the journalsLaw, Culture, and HumanitiesandStudies in Law, Politics, and Society. He edits the Cultural Lives of Law book series.

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Knowing the Suffering of Others

Legal Perspectives on Pain and its Meanings


By Austin Sarat

The University of Alabama Press

Copyright © 2014 The University of Alabama Press
All rights reserved.
ISBN: 978-0-8173-8741-9



CHAPTER 1

Suffering the Loss of Suffering

How Law Shapes and Occludes Pain

Linda Ross Meyer


For two months I'd been physically and emotionally ricocheting between her hospital bed and the prison class I was teaching. At last, she had been sent home to die. I sang to her all through the night. And all through the night she stared at me. Was she crying, or were her eyes merely watering because she could no longer blink? Was she telling me she loved me, or was she telling me she was in pain? Maybe she was begging me to stop singing and leave her in peace. Or maybe she was already too far gone, her stare blank and empty, her ears deafened. But still I sang, all the songs we used to sing together through all the seasons of my childhood. Just in case.


What is suffering? Is suffering the same as pain? Do we know another's pain immediately, or is pain so elusive that we cannot speak of it, measure it, or believe in it anywhere but in our own bodies? Is pain a world-ending, searing, and unshareable experience that presses only on the one who suffers? Can we even know our own pain completely, or does it hide in memory, dream, flashback, or imagination? Perhaps pain is not private at all, but just another language game, public and as accessible as any language game? Or, is pain a scientifically ascertainable state of the body or brain?

None of these questions are adequately answered by philosophy, psychology, or science. Yet law must judge these matters anyway if it seeks to provide protection against and redress for pain.

Recent scholarship in areas of the law of loss (especially crime and tort) suggests that the law needs to pay more attention to pain. From philosophers who argue that law should be directed to the alleviation of pain, to scholars who want law to attend more carefully to the (crime or tort) victims' experience, to tort theorists who argue for "full compensation" rather than "fair compensation," to law and science scholars who argue for introducing brain imaging of pain into court proceedings, the call is for law to take more seriously the raw experience of pain.

Traditionally, however, the law's determination of what counts as remediable loss or pain is not merely a matter of encounter, testimony, observation, or measurement, even if science gives us new evidence that pain is something that can be encountered, told, observed, and measured. As Professor Fuller said nearly seventy years ago, "the things which the law of damages purports to 'measure' and 'determine'—the 'injuries', 'items of damage', 'causal connections', etc.—are in considerable part its own creations."

This essay examines legal redress for loss in various doctrines of private and public law in order to map the relation of law and suffering and explore how they shape each other. Unsurprisingly, perhaps, one finds that "suffering" in legal contexts is closely associated with breaches of law. "Assault," for example, describes both the wrong and the harm. Damages and wrong often mirror each other in this way in legal doctrine, and one depends on the other. Physical pain and tangible loss are not always compensable, and compensation does not always require physical pain or tangible loss. Compensable suffering in law, in other words, is often not (or at least not merely) about the intensity of the experience of pain, nor is it about a medical or scientific state of affairs, whether monetary, biological, chemical, or psychological. Instead, suffering appears in the eyes of the law, at least in part, as the absence of reason and norm. This absence, in turn, is closely intertwined with the absence of "pattern," the absence of the usual, of rule, of reliability, and the absence, therefore, of lawfulness itself. Law seems to compensate for the lack of law, for "unjustified" or "unusual" suffering, but not for experiences of suffering "as such." Is law wrong to do so? Is there some other prenormative account of suffering to which law should respond? Can "raw" suffering cut through legal language? I am haunted by a quotation from Emmanuel Levinas: "the justification of the neighbor's pain is surely the source of all immorality." Should not law indeed attend to the neighbor's pain, seek to alleviate it, or show concern for it, regardless of its justification or cause?

Part I sets out the relation between suffering and wrong in the law. Part II examines how the law often elides the normative with the normal, the "wrong" with what is unexpected. Part III suggests that the suffering that is the absence of the "normal" is linked with our need for reliability and is a defense against our finitude. Part IV explores the example of torture, the paradigm of lawless suffering "for nothing" that undermines lawfulness itself. Part V discusses the aspects of "suffering" or hurtful loss that are left out of law.

I conclude that suffering in law is normative all the way down, resistant to any simplistic reductionism or unmediated "experience" of the other. Suffering, moreover, is intimately tied in law to the frustration of our "will to law." The "will to law," a human desire for reliability and pattern that protects a finite being from a chaotic world, seeks to normalize the unusual and the aberrant. Even when law tries to compensate for "actual" suffering and tries to take suffering as a scientific object, the "will to law" makes empirical suffering or pain difficult to measure, because sufferers adapt to the familiar, routine, and normal, and the familiar is not experienced or understood as suffering. Sufferers' own "will to law" makes the quotidian into the lawful and justified, thereby obscuring (or perhaps alleviating) their own suffering. Finally, I look at forms of lawful pain or loss that are left unaddressed and therefore unredressed by the law's conception of suffering: (1) normal "background" pain or loss, (2) lawful pain or loss "for a good reason," and (3) the loss of our openness to change and disruption that our "will to law" itself causes, and that is a loss of the capacity for suffering itself.

Time is short. This paper is late and unfinished. I can't seem to capture and articulate suffering as I had hoped to do but see suffering only through the slits and cuts of the life I have led, filtered, understood, and remembered through inadequate words. I don't have time to read all the books and articles I should read. I'm not smart enough to understand the ones I've read. I have trouble thinking when I'm awake and not thinking when I'm trying to sleep. I keep getting distracted by undigested bits of conversation, gutting memories, children, friends, colleagues, phantoms, who all want or need my attention. Can I convey anything of this? Do I know anything of what even I myself have experienced? Or can I experience even my own suffering and finitude only through my will to law; my efforts to organize, write, and deliver an argument, thesis, and justified claim in the form of universal truths; to create a corner of cosmos and meaning out of chaos and pain? Is there a way to encounter suffering other than or prior to trying to understand it, stand under it, and declare it just or unjust?


I. Suffering as Defined by Its Lack of Justification

If I tell you that I know of a practice of tying very young children to chairs and leaving them alone for hours at a time to stare at a wall, you may be horrified, imagining the suffering of these children. But when I then show you a picture of a child in a car seat, the image of suffering children disappears. You laugh, feeling that I have fooled you somehow. "This is not suffering," you say. Why not? Because car seats are justified by the safety they provide, and because we are used to them. The normative and the normal conspire, and we no longer perceive these children to be "suffering," regardless of whether or not they cry.

If I show you a photo of a woman crying, you may feel compassion and be moved to eliminate her sorrow or anguish. But when I tell you that this is a photograph of Casey Anthony, a woman you believe murdered her young daughter and then tried to cover up her evil deed, your compassion freezes, and you begin to see her tears as fake, or perhaps not to be pitied but rather to be welcomed as good for her soul.

Journalist Melanie Thernstrom points out that throughout our history, our sensitivity to others' suffering has depended on context, justification, and normality. As she explains, this feature of our understanding of suffering can have pernicious consequences, as we find it easiest of all to justify or treat as normal the suffering of social "others": "Poverty was a great anesthetizer, as was the criminal's lack of morals. ... Slaves' animal natures dulled them to pain, as did the supposed thickness of their colored skin (although the addition of white blood made mulattos more sensitive). 'Negresses,' an editor of a British medical journal stated matter-of-factly in 1826, 'will bear cutting with nearly, if not quite, as much impunity as dogs and rabbits,' while an 1856 article in the Southern Medical and Surgical Journal assured slave owners that 'the Negro ... has a greater insensibility to pain' and 'suffers deeply, but not enduringly, from affliction.'" Thernstrom also cites studies that conclude that we still undertreat the pain experienced by minorities and the poor compared to that of middle- to upper-class white men, whose suffering we believe in and do not treat as fake, normal, or justified.

But we do not discount only the suffering of others when we think (rightly or wrongly) that their suffering is justified or normal; we also feel better about our own suffering when we believe it is beneficial or justified. The science of suffering demonstrates that when we believe pain is good for us, we feel it less intensely, or at least with less anxiety and fear.

And so the phenomenon of suffering is not simply an empirical one, but also a conceptual one. Pain science suggests that our conceptions, philosophical and historical, influence our experience of both others' pain and our own. So here, in our struggle to understand our own minds, philosophy and science mingle. As Shai Lavi and Jennifer Culbert point out, drawing on Nietzsche, the worst suffering we experience is suffering that is unjustified and senseless. Lavi, in discussing the pain of death, says: "The reason why the pain of dying has become intolerable is not because pain has become more intense, nor because we have become more sensitive to it. Rather, the problem of pain in modern times is its senselessness. Pain is no longer tolerable because it can no longer be justified [as a means to salvation or health]."

Given these more general connections between pain and its justification, it comes as no surprise that law compensates only for unjustified suffering, not all suffering. As Douglas Laycock puts it, as far as money alone can, law puts the plaintiff back, not in his "original position," but in his "rightful" position. Hence, what law counts as "loss" is subordinate to a theory of legal right and wrong. Tort law compensates plaintiffs for damages connected with a tortfeasor's failure to exercise due care, or to show due respect—not for all damages plaintiffs suffer. Contract law compensates plaintiffs for promised, but unfulfilled, performance—not for all plaintiffs' losses. Criminal law punishments are likewise supposed to mirror criminal culpability; the punishment is to fit the crime, not the harm. In all of these forms of redress, the loss or suffering is defined in terms of the wrong and shaped and limited (at least somewhat) by the extent to which a human agent failed in a legal duty.

Although the shaping of suffering by the wrong done is most explicit in criminal law, in which the penalty is, on traditional retributive principles, the mere universalization of the offender's own wrong applied to himself, the shape of recompense follows the wrong in other areas as well. In intentional torts, for example, nominal damages may be presumed from the wrongful conduct, the jury is often allowed to infer the plaintiff's "mental distress" from the "outrageousness" of the defendant's conduct, and damages recoverable from intentional wrongs are broader than those recoverable from unintentional wrongs.

Even in negligence cases, damages may be awarded for losses that the particular plaintiff will never actually realize. For example, in McLaughlin v. Chicago, a jury awarded damages for lost wages to a priest who was a teacher based on the market price for his teaching. The defendant appealed on the ground that the priest had taken a vow of poverty and therefore would not actually "lose" these wages. The Wisconsin Supreme Court affirmed the verdict, quoting the trial judge, who said, "The fundamental reason in the law for asking you to assess his damages, even though he may not be able to retain such money because of his vow of poverty, is that a wrongdoer cannot be heard to complain of the financial circumstances of the one who has sued him and whom he has injured."

There are other examples of courts presuming damages from the wrong. One court held it reversible error for a trial court to accept a verdict for medical expenses without recovery for pain and suffering. Another court awarded pain and suffering damages even though the plaintiff "spoke little of his emotional distress and inconvenience or annoyance." Despite little "evidence" of emotional pain, the court said, "stoics unwilling or unable to orate on their anger, fear, worry, or pain feel these no less keenly than the voluble. When the law entitles a man to damages he should not be penalized for his reserve."

In sum, tort compensates not merely for (some) actual, experienced pain, but also for lost dignity and presumed or "symbolic" distress. The reverse is also true. Not all pain, however painful, is compensable. Tort law compensates only the "foreseeable" losses that result from wrongful conduct, not the actual but "unforeseeable" losses. "Foreseeability" is a term of art that courts often interpret to relate not literally to our ability to predict or imagine losses, but to whether the loss that resulted is the kind of loss we mean to protect against by the standard of care that was ignored. The connection is a moral one, not, strictly speaking, a causal one. For example, it is wrong to leave banana peels lying around because it demonstrates carelessness toward others who might slip and fall. If the banana peels instead attract disease-ridden chimps who bite, those losses are not morally related to the reason for the standard of care—to protect people from slipping—and are therefore not "foreseeable" or "proximately caused." "Foreseeable," and hence compensable, loss thus depends in large part on the definition of the "duty" or nature of the wrong, not merely on simple causation of unhappiness, distress, economic loss, or physical pain.

In contract law, similarly, "general damages" can be awarded without specific proof of harm to the plaintiff beyond the breach of promise itself, and the loss is calculated based on the market value of the failed performance, not the plaintiff's particular experience of loss, however painful. "[A] function of the general damages rules is to specify the kind of right or interest that the substantive law wishes to protect in the first place. The damages rules, after all, are merely the ultimate expression of the plaintiff's right." While restitution damages may be recovered instead of traditional expectation damages, they are still limited by the expectation measure. Unforeseeable damages are not recoverable.

In both crime and tort law, the traditional rule is that individualized damages, or damages specific to the plaintiff's situation, are a second-best form of recovery when general damage measures are unavailable or speculative. "Specials" require more proof and are again limited by what the defendant could reasonably have foreseen as a result of the breach of duty. Or, to put it differently, one can recover only for the harm that the rule the defendant breached is designed to protect against. The "loss" follows the rough contours of the "wrong." Losses that are not conceptually connected to the scope and nature of the wrong are not compensable.

Other areas of the law provide similar examples. One particularly interesting contrast in the death penalty context is between the Eighth Amendment standard for determining whether a (justified) state execution protocol is "cruel and unusual," and the state courts' decisions regarding whether or not an (unjustified) murder is "heinous, atrocious, and cruel." The first legal formula is designed to pick out forms of suffering that may not be imposed, even as justified punishment. The second legal formula is designed to pick out the "worst" murders that warrant the death penalty. But though the forms of the words are similar, these standards are applied very differently, and the state is allowed to use means for killing "justly" that a murderer could not use without risking the death penalty. For example, cases determining the cruelty of deaths in the course of executions involving hanging or gassing usually have not found death by suffocation to be "cruel and unusual," whereas strangulation in the course of a murder is generally sufficient for the murder to be classed as "heinous, atrocious, and cruel." Moreover, courts examining execution protocols tend to ask whether the manner of execution is "intended to be" or is "generally" painful, not whether it is "actually" painful in particular cases of botched executions, whereas courts evaluating aggravating factors in murder cases ask whether the particular murder victim actually suffered a lingering death, regardless of whether or not the defendant intended to impose a lengthy period of suffering or employed a mode of killing likely to result in a lingering death. In other words, where the killing is unjust, actual pain tends to matter more and lack of intent to cause that pain matters less, but where the killing is just, actual pain matters less and lack of intent to cause that pain matters more.


(Continues...)

Excerpted from Knowing the Suffering of Others by Austin Sarat. Copyright © 2014 The University of Alabama Press. Excerpted by permission of The University of Alabama Press.
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Table of Contents

Acknowledgments ix

Introduction: Pain and Suffering as Facts of Legal Life Austin Sarat 1

1 Suffering the Loss of Suffering: How Law Shapes and Occludes Pain Linda Ross Meyer 14

Commentary: Taming Suffering Meredith M. Render 62

2 The Ambiguous Standing of Suffering in Negligence Law Gregory C. Keating 78

Commentary: Emotional Distress and the Victim's Perspective Alan L. Durham 122

3 Two Conceptions of Suffering in War John Fabian Witt 129

Commentary: Personal Reflections on Professor John Fabian Witt's "Two Conceptions of Suffering in War" Stephen H. Hobbs 158

4 Disappearing History: Scenes of Trauma in the Theater of Human Rights Cathy Caruth 170

Commentary: A Record but No Truth? Recording and Re-recording Trauma in the Real-Life Struggle for Civil Rights Montrc D. Carodine 201

5 Laws of Trauma Jeannie Suk 212

Commentary: Knowing the Suffering of Others: A Commentary on Jeannie Suk's "Laws of Trauma" Bryan K. Fair 236

Contributors 243

Index 245

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