Another new legal theory sheds light on the production of suffering

Louis Wolcher will release soon a work called Law's Task: The Tragic Circle of Law, Justice and Human Suffering. The book, says an editorial review,

(...) traces the rule of law all the way down to its most fundamental level: universal human suffering. The book argues that what we ordinarily call 'law' and 'justice' are most properly viewed not as objects, ideas, or even institutions, but rather as mere linguistic signs and ephemeral images woven into the temporal event of dividing universal human suffering into parts: the lawful and the unlawful, the just and the unjust, and the right and the wrong. Yet the very event of noticing and labelling some kinds of suffering as 'unjust' ignores and generates other kinds of suffering. Although law's tendency towards partiality and brutality is useful for maintaining existing relations of domination and resistance in society, it remains ethically invisible to those who actually perform law's task on a day-to-day basis. As Jesus is said to have alleged of the Romans, modern day law-doers quite literally do not know what they are doing. The book's most fundamental message is that the practitioners of law and justice participate in a human tragedy - a sort of fellowship of sadness - and that their pitiable attempts to provide foundational accounts of legal practice represent a hopeless effort to evade their existential and ethical responsibility for each and every legal outcome in which they participate.

Wolcher dealt previously with the relationship between suffering and law in his 2005 book, Beyond Transcendence in Law and Philosophy, which argued from a zen perspective and with reference to thinkers like Heidegger, Levinas, and Wittgenstein, that the yearning for transcendence is born of the illusion that there is a fundamental difference between the ordinary and the profound. From and algonomic point of view, it often seems indeed that the management of suffering, which is an ordinary and profound thing at the same time, has been radically hindered until now by people's mythophilic yearning for transcendence. (Added on 2009-10-15 -- Wolcher asks, says the back cover of his 2005 book, "What produces our craven subservience to linguistic norms, and our shocking indifference to the phenomenon of universal suffering?" Our indifference to suffering would end, methinks, if and only if there was at least one algonomic institution. A year ago, I wrote the following to Louis: "I believe that the kind of acknowledgment which is required in your field, with regard to suffering, may happen only in conjunction with a similar acknowledgement in several other major fields of human activity, and that a common coordinating concept, therefore, is imperatively needed. That is why I propose the creation of 'algonomy', a field of human activity whose concern, suffering itself, has never been the specific subject of any field yet. Logically, how universal suffering could be managed adequately if there is no specific universal frame of work to deal with that management? Hopefully, thinkers concerned with the due place of suffering in our culture might before long become numerous enough to find that such a place stands at last right between them all!")

It is interesting to note how much Wolcher's work is close to another law theoretician's, Scott Veich: see a previous blog entry, New legal theory sheds light on the production of suffering, about Veich's book Law and Irresponsibility - On the Legitimation of Human Suffering.

2010-03-30:
See also Gray, David C., Punishment as Suffering (March 17, 2010). Vanderbilt Law Review, Vol. 64, No. 1, 2010. Available at SSRN: http://ssrn.com/abstract=1573600.

2011-06-07:
See also THE EXPERIENTIAL FUTURE OF THE LAW, Adam J. Kolber, Emory Law Journal, vol. 60, 2011, pp.585-652 (and a blog review on boingboing.net: Subjective experience and the law: should fMRI evidence of high punishment tolerance affect sentencing?) :

ABSTRACT -- Pain, suffering, anxiety, and other experiences are fundamentally important to civil and criminal law. Despite their importance, we have limited ability to measure experiences, even though legal proceedings turn on such measurements every day. Fortunately, technological advances in neuroscience are improving our ability to measure experiences and will do so more dramatically in what I call “the experiential future.” In this Article, I describe how new technologies will improve our assessments of physical pain, emotional distress, and a variety of psychiatric disorders. I also describe more particular techniques to help determine whether: (1) a patient is in a persistent vegetative state, (2) a placebo treatment relieves pain, (3) an alleged victim has been abused as a child, (4) an inmate being executed is in pain, (5) an interrogatee has been tortured, and more. I argue that as new technologies emerge to better reveal people’s experiences, virtually every area of the law should do more to take these experiences into account.

2011-08-21
On March 30, 2012, there will be a symposium at the University of Alabama School of Law under the theme "Knowing the Suffering of Others". Notes published in the New York Review of Books say:

"Legal interpretation plays on a field of pain and death." These are the words that begin Robert Cover's essay "Violence and the Word," a work designed to
reorient legal theory by recognizing that human pain is everywhere in law. This symposium will address the question of imagining and knowing this pain. From torts to international human rights, from domestic violence to torture, form fetal imagining to decision-making at the end of life, from victim impact statements to compensation funds, the law is awash in epistemological and ethical difficulties of knowing suffering. How do legal actors imagine suffering in legal life? What problems of interpretation plague our efforts to know the suffering of others? What resources can the law draw upon in this search?

Minimization of suffering : a principle for every science

Stanislav Kovac published in the journal Evolution and Cognition (2000, vol. 6, pp. 51-69) an article on the Fundamental principles of cognitive biology, among which figures the minimization of suffering principle.

Kovac quotes Linus Pauling's "Scientists in Politics", a 1970 text that is reminiscent of Karl Popper’s negative utilitarianism:

"(…) I want to be free of suffering to the greatest extent possible. I want to live a happy and useful life, a satisfying life. I want other people to help me to be happy, to help to keep my suffering to a minimum. It is accordingly my duty to help them to be happy, to strive to prevent suffering to other people. By this argument I am led to a fundamental ethical principle: the decisions among alternative courses of action should be made in such ways as to minimise the predicted amounts of human suffering. (...) Suffering and happiness are, of course, closely related. I might take as the basic ethical principle that decisions should be made in such a way as to maximise human happiness, human welfare. I feel, however, that there is so much suffering in the world, much of it unnecessary and avoidable, that it is better to place the emphasis on minimising suffering. (...) I have contended that the principle of the minimisation of human suffering is a scientific principle, with a logical, scientific basis. (…) I feel that, although we have theoretical freedom allowing various ethical systems to be formulated, the choice of a reasonable and practical ethical system is highly restricted by our knowledge about the nature of the physical and biological world, and that the only acceptable ethical systems are those that are essentially equivalent to that based upon the principle of the minimisation of human suffering."

Kovac stresses that the minimization of suffering principle in cognitive biology is descriptive rather than prescriptive:

The "search for truth" has been often presented as an internal norm of science. It is not: science with lies is simply no science. In the same vein, the principle of minimisation of suffering gives science and additional dimension. Not as a norm: the more "genuine" science is, the closer it is to this extremum principle. While Pauling's reasoning ended with a normative proposal of a basis for an ethical system, this statement is purely descriptive. The origin of science, and its subsequent evolution as an institution, have been inherently linked with the reduction of human worries: pain, distress, labour, misery, anxiety.
Science has become the main instrument in human efforts to minimise pain and to maximise pleasure. Cognitive biology just explains why it is so. This is not to say that a research in which suffering, unintended or intended, is incurred, is no science. It is a science with a large proportion of ignorance. As life on earth, as life in the universe, science itself progresses forward in a maze: there is a major evolutionary tendency, but they are also many false paths and deadlocks. The success is not prescribed.

Thanks to Stanislav Kovac for showing so basically how algonomy belongs within every discipline epistemological and axiological principles.

New legal theory sheds light on the production of suffering

We knew that law legitimates suffering, be it only as a deserved punishment. But we learn now that law is also routinely used to organize irresponsiblility and sustain complicity with regard to large-scale production of suffering.

Scott Veich published recently Law and Irresponsibility - On the Legitimation of Human Suffering. The synopsis says:

"With a particular focus on large-scale harms – including extensive human rights violations, forms of colonialism, and environmental or nuclear devastation – this book analyzes the ways in which law legitimates human suffering by demonstrating how legal institutions operate as much to deflect responsibility for harms suffered as to acknowledge them. Drawing on a series of case studies, it shows not only how law facilitates the dispersal and disavowal of responsibility, but how it does so in consistent and patterned ways. Irresponsibility is organized, and its organization is traced here to the legal forms, and the social and political conditions, that sustain ‘our’ complicity in human suffering."