Another new legal theory sheds light on the production of suffering
(...) 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.
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.
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.
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?