Posted: 6 Dec 2012 Last revised: 13 Feb 2013
Date Written: December 5, 2012
Recent scholarship in areas of the law of loss (especially crime and tort) suggests that the law needs to pay more attention to pain. 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. 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 pre-normative account of suffering to which law should respond? Can 'raw' suffering cut through legal language?
Part one sets out the relation between suffering and wrong in the law. Part two examines how the law often elides the normative with the normal, the 'wrong' with what is unexpected. Part three 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 four explores the example of torture, the paradigm of lawless suffering 'for nothing' that undermines lawfulness itself. Part five 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.
Keywords: suffering, torts, sentencing, hedonic adaptation, pain
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