Abstract

http://ssrn.com/abstract=1906886
 
 

Citations (1)



 


 



Pain as Fact and Heuristic: How Pain Neuroimaging Illuminates Moral Dimensions of Law


Amanda C. Pustilnik


University of Maryland Francis King Carey School of Law

2012

Cornell Law Review, Vol. 97, No. 4, 2012, p. 801-
U of Maryland Legal Studies Research Paper No. 2011-45

Abstract:     
In legal domains ranging from tort to torture, the presence of pain and its degree do important definitional work by delimiting boundaries of lawfulness and of entitlements. Yet, for all the work done by pain as a term in legal texts and practice, it has a confounding lack of external verifiability.

Now, neuroimaging is rendering pain and myriad other subjective states at least partly ascertainable. This emerging ability to ascertain and quantify subjective states is prompting a “hedonic” or a “subjectivist” turn in legal scholar- ship, which has sparked a vigorous debate as to whether the quantification of subjective states might affect legal theory and practice. Subjectivists contend that much values-talk in law has been a necessary but poor substitute for quantitative determinations of subjective states — determinations that will be possible in the law’s “experiential future.”

This Article argues the converse: that pain discourse in law frequently is a heuristic for values. Drawing on interviews and laboratory visits with neuroimaging researchers, this Article shows current and in-principle limitations of pain quantification through neuroimaging. It then presents case studies on torture-murder, torture, the death penalty, and abortion to show the largely heuristic role of pain dis- course in law.

Introducing the theory of “embodied morality,” the Article describes how moral conceptions of rights and duties are informed by human physicality and constrained by the limits of empathic identification. Pain neuroimaging helps reveal this dual factual and heuristic nature of pain in the law, and thus itself points to the translational work required for neuroimaging to influence, much less transform, legal practice and doctrine.

Number of Pages in PDF File: 49

Keywords: neuroimaging, subjectivism, pain, morality, criminal law, death penalty, abortion, torture, torture-murder, embodiment

JEL Classification: K10, K14, K19

Accepted Paper Series


Download This Paper

Date posted: August 9, 2011 ; Last revised: February 25, 2014

Suggested Citation

Pustilnik, Amanda C., Pain as Fact and Heuristic: How Pain Neuroimaging Illuminates Moral Dimensions of Law (2012). Cornell Law Review, Vol. 97, No. 4, 2012, p. 801-; U of Maryland Legal Studies Research Paper No. 2011-45. Available at SSRN: http://ssrn.com/abstract=1906886

Contact Information

Amanda C. Pustilnik (Contact Author)
University of Maryland Francis King Carey School of Law ( email )
500 West Baltimore Street
Baltimore, MD 21201-1786
United States
Feedback to SSRN


Paper statistics
Abstract Views: 1,059
Downloads: 180
Download Rank: 96,878
Citations:  1
Paper comments
No comments have been made on this paper

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo2 in 0.297 seconds