Knowing the Suffering of Others: Legal Perspectives on Pain and Its Meanings

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Introduction

Pain and Suffering as Facts of Legal Life

Austin Sarat

Legal interpretation plays on a field of pain and death. These are the words with which Robert Cover began Violence and the Word.¹ That essay was designed to reorient legal theory, or at least to remind legal scholars eagerly pursuing the interpretive turn or the parallels between law and literature of the base materiality of the legal enterprise.² While Cover's work is now regarded as something of a classic in contemporary legal thought,³ surprisingly few scholars have taken up his invitation to explore the intimate connections among pain, death, and the law.⁴

Few have tried to chart the ways in which law traffics in human suffering and the various devices, tropes, and metaphors through which legal actors and institutions try to know the suffering of others.⁵

As Cover correctly observed, despite their undeniable significance, pain and death have played little role, and occupied little space, in legal theory and jurisprudence.⁶ Or, when they are present, awareness of the pain or death carried out or authorized by officials is divorced from interpretation, as if the act of speaking or writing the words of law could be separated from the inscription of those words on the bodies of citizens.⁷ By failing to confront law's lethal character and the masking of its interpretive violence, legal theory tacitly encourages officials to ignore the bloody consequences of their authoritative acts and the pain those acts produce. Indeed, some legal theorists equate the conditions of legal legitimacy with law's ability to mask and mute the pain and suffering that legal officials deal with daily.⁸ When law is surrounded by so much suffering, it is, in their view, remarkable that it is able to maintain its calm, bureaucratic facade.

In this effort to bring human suffering to the fore in thinking about law, great importance and great controversy attach to the work of Elaine Scarry.⁹ Cover's effort to cultivate a jurisprudence that makes pain and death central to its subject draws heavily on Scarry, as do some of those who have tried to take up his call.¹⁰ Cover, following Scarry, separates pain and language: pain exists outside of language and has a materiality that language lacks. It is destructive of language itself. As Scarry puts it, pain actively destroys language . . . bringing about an immediate reversion to a state anterior to language, to the sounds and cries a human being makes before language is learned.¹¹ Pain, for her, is a primary physical act . . . a pure physical experience of negation, an immediate sensory rendering of ‘against.’¹² So great is the priority and power of pain that Scarry contends there is a simple and absolute incompatibility of pain and the world.¹³

In Scarry's view, legal officials and those whose experience of pain and suffering they seek to know undergo achingly disparate . . . experiences. For the . . . (former), . . . pain and fear are remote, unreal and largely unshared. They are, therefore, almost never made part of the interpretive artifact, such as the judicial opinion. On the other hand, for those who impose the violence, the justification is important, real and carefully cultivated. Conversely, for the victim, the justification for the violence recedes in reality and significance in proportion to the overwhelming reality of the pain and fear that is suffered. If Scarry is correct, law faces serious and perhaps intractable obstacles as it seeks to know the suffering of others—obstacles built into the very nature of pain and the limits of language.

Numerous scholars have taken Scarry to task for her naturalistic notion of pain¹⁴ and for the related failure to historicize its construction.¹⁵ Pain, for Scarry, is, to use Cover's words, utterly real, existing outside language, in need of, and indeed resistant to, any linguistic construction.¹⁶ For her critics, in contrast, "the pain that we can know as between ourselves is in language. . . . Language is how we live ‘in’ pain, not in some fantasy of community divorced from it."¹⁷ However, to recognize the linguistic life of pain and death, one need not say or believe that there is nothing physical or material about these phenomena.

This recognition suggests that human suffering is known in and through various institutions and their linguistic practices, institutions and practices that are historically and culturally situated.¹⁸ As Kleinman and Kleinman contend, It is important to avoid essentializing, naturalizing, or sentimentalizing suffering. There is no single way to suffer; there is no timeless or spaceless universal shape to suffering. There are communities in which suffering is devalued and others in which it is endowed with utmost significance. The meanings and modes of suffering have been shown by historians and anthropologists alike to be greatly diverse.¹⁹ This suggests that different domains of law may know suffering in different ways and alerts us to the importance of paying attention to those variations.

Some scholars have come to the subject of how law knows the suffering of others as part of an interest in the legal construction of bodies. They contend that bodies are everywhere in law,²⁰ from wrongful death suits to police brutality, from abortion to euthanasia. Surveying this landscape, Alan Hyde claims that the multiple, competing constructions of the body in American law show the impossibility of knowledge of the body unmediated by discourse. And those constructions . . . are never innocent.²¹ Yet not every construction of the body in law requires or involves an acknowledgment of suffering as a fact of legal life. Recognizing the ubiquity of the body in legal discourse, in itself, tells us nothing about when, where, and how law plays on a field of pain and death.

Hyde surely recognizes this. For him, the appearance of suffering in legal discourse marks the development of a particular way of understanding the body, what he calls the sentimentalized body.²² In his account, the sentimentalized body is a site of both differentiation and empathy. As Hyde puts it, "However sentimental bodies construct difference, the limits of such differentiation—the very essence of constructing a sentimental body—is always that such a body feels pain and to that extent may excite what we call empathy . . . , for which the contemporary idiom is often precisely ‘I feel your pain.’"²³ Recognizing suffering as a fact of legal life may be necessary to establish the measure of damages in a tort suit or to impose limits on the kinds of physical punishment that are constitutionally tolerable, but Hyde contends, contra Cover, that the construction of pain provides a bridge between the body created in legal discourse and others standing, at least for a moment, beyond the reach of law. Human suffering figures prominently as a device through which law builds solidarity. Attending to that suffering, in Hyde's view, poses no special challenge for law.

An increasingly important lens through which the law may view the suffering of others starts not with the materiality of the body but with the concept of trauma.²⁴ Trauma, invented or revealed as a development of the psychiatric gaze, has been borrowed to explain a broad spectrum of phenomena including the collective subconscious, cultural identities, and contemporary ethnic and political struggles.²⁵ Beginning in the nineteenth century, the idea of psychological trauma replaced the original meaning of the word trauma, which previously referred to wounds or physical injuries. Trauma studies emerged as a riddle for psychiatrists and doctors, and trauma was first identified and examined only in specific populations, such as women, soldiers, and persons injured in railway accidents.²⁶

Today, seeing trauma as an external etiological event has become a way to imagine the human condition. Trauma is expressed in both bodily and mental symptoms. Individuals haunted by traumatic memories, and those who manifest posttraumatic syndromes, often seek legal avenues to transfer these personal experiences to collective understanding. Law, some argue, is in the business of producing a cultural construction of trauma.²⁷ In their view, seeing suffering through the lens of trauma reminds us that the way suffering is acknowledged and given meaning is through the mass media and religious, aesthetic, legal, scientific, and state institutions. Those institutions define the nature of suffering, establish the relation of suffering to those who experience it, and assign meaning to it.

From torts to international human rights, from domestic violence to torture, from fetal imaging to decision making at the end of life, from victim impact statements to the law of war, law is awash in epistemological and ethical problems associated with knowing and imagining suffering. In each of these domains we might ask: How well do legal actors know and imagine suffering in these various domains of legal life? What problems of representation and interpretation plague efforts to know the suffering of others? What historical, political, literary, cultural, and theological resources can legal actors and citizens draw on to know and imagine the suffering of others?

The scholarship contained in Knowing the Suffering of Others: Legal Perspectives on Pain and Its Meanings takes up these questions and puts the problem of suffering at the center of thinking about law, highlighting the way law imagines suffering as well as the way human pain and suffering become jurisprudential facts. The contributors to this volume do not provide a comprehensive survey of the way law knows the suffering of others so much as a set of critical interventions pointing the way for further inquiry. They do not regard pain and suffering as objective facts of a universe remote from law; rather, they examine how both are discursively constructed in and by law and how both help construct and give meaning to the law as we know it. They attend to the various ways suffering appears in law as well as the different forms of suffering that call forth law's attention.

Knowing the Suffering of Others: Legal Perspectives on Pain and Its Meanings calls on us to ask how various legal audiences understand the suffering of others. Throughout this book, law is regarded as a domain in which the meanings of pain and suffering are contested, and constituted in the contest, as well as an instrument for inflicting suffering or for providing or refusing its relief.

The first chapter, by Linda Ross Meyer, reminds us that in a legal context, suffering is generally known only in its association with a breach of the law. In her view, harm and wrong construct each other. Suffering is not just a raw experience, but instead, it appears in the eyes of the law, at least in part, as the absence of reason and norm. Law, she argues, will not compensate for just any suffering, but only unusual suffering, suffering that results from a lack of law. Law responds to suffering because it seeks to normalize an aberrant situation.

Legal redress for suffering, Meyer notes, is defined in terms of the wrong committed, not the damage felt. Generally, a victim can recover damages only from an intentional harm. Following the same principle, the law compensates only for foreseeable losses, not the harms that actually result. The government creates a rule to protect against a certain harm, and one can only recover for the harm that the rule the defendant breached was designed to protect against. The ‘loss’ follows, at least roughly, the ‘wrong.’ A victim can recover damages only when the defendant uses wrongful means to produce the harmful ends.

Establishing an action as a wrong is, Meyer notes, a normative judgment, but typically, law conflates the normative with the normal. In other words, an action is wrong because it is outside the bounds of normality—it is simply not done. In fact, it is custom that usually defines a wrong in that custom establishes the range of normal actions. As a result, the normative understanding of loss tends to collapse into the ‘normal’ understanding of loss. To measure damages, courts use the benchmark of the reasonable man, and if the harm is greater than the usual pain this man can be expected to suffer, then the victim can receive compensation.

What is normal, however, is an evolving standard, because a community's conception of what pain is considered normal changes. By extension, what is normative also changes with changing community standards. For law, Meyer argues, The pain is not the important quality; the ‘normal’ is.

Tort cases, Meyer notes, usually consider industry standards to determine which practices are normal and which are negligent; custom constitutes what damage is. Of course, courts have used other standards in evaluating suffering. Some decisions rely on cost-benefit analysis, so that when the benefits of pain outweigh the cost, the suffering is regarded as justified. Other decisions use a scientific definition of pain—treating it as merely a physical sensation. But even such a medical definition of pain instructs us to acknowledge only some forms of suffering while discounting others. Law, Meyer notes, sees suffering through the lens of the normal and unusual, the acceptable and cruel.

Meyer acknowledges that law cannot compensate for all types of suffering. Moreover, law uses or imposes suffering for a good reason. For example, punishment imposes suffering because guilty people deserve it. Like other forms of suffering, the amount of pain, again, is not the determinative factor: innocence or guilt is. Beyond that, Meyer notes, law does not often recognize the suffering associated with injustices like racism or sexism. When these injustices are customary, they do not stand out as unjustified suffering, and it is only when custom changes that they become compensable.

The total eradication of all suffering, Meyer suggests, should not be law's objective, because the loss of all suffering would itself impose a kind of suffering. We suffer to achieve a good, we suffer with a good—for example, grief when we lose a loved one—and we suffer because life has a certain baseline of suffering: when we think of senseless pain as pain that must be eliminated, then what we eliminate is the pain that is life. Suffering, Meyer concludes, is often inarticulate, but our conception of it shapes law.

In the next chapter, Gregory C. Keating takes up one of the areas of law that Meyer considers, namely torts. While Cover argues that law authorizes pain and suffering through its words, Keating notes that tort law condones suffering through its silence. Tort law does not respond to mere misfortune; instead, it responds when someone inflicts harm on another person. It is fundamental to the human condition that one person's actions may cause another's suffering, and tort law determines when this suffering can and must be redressed. In the nineteenth century, tort law was concerned only with physical harm; in contrast, modern tort law has begun to recognize emotional harm, too.

In tort law today, Keating suggests, there are two different conceptions of harm. The first relates harm to interest, and it locates harm's moral significance in its assault on our well-being. The other theory treats harm as a threat to someone's agency, as something that removes someone's ability to do anything besides suffer. Keating argues for the latter theory and focuses his analysis on emotional harms and the suffering associated with them.

Physical harm, in particular, impairs our ability to act. But, Keating notes, emotional harm is trickier because an emotional reaction comes from our mind—the locus of our sovereignty. Thus, emotional reactions tend to be much more subject to our minds, our wills, and our control, meaning that they are a result of our autonomy. Those who suffer are, in some sense, responsible for their emotional distress because it is a product of their own agency; to prevent suffering, people should take it upon themselves to become more emotionally resilient. Nonetheless, such harms may lead to tort suits alleging negligent infliction of emotional distress (NIED).

Emotional harm as a kind of human suffering raises, Keating contends, an epistemic question: How do we know and recognize suffering? Beneath this is a normative dilemma—to what extent should we have responsibility for the harms we inflict? NIED cases also present a distinctly legal problem, whether liability is a matter of duty or proximate cause. If liability depends on duty, everyone cannot owe a general duty to others not to cause them emotional suffering. This would make every emotional interaction impossibly risky.

To have free social interactions, Keating argues, we must have the liberty to inflict emotional distress; we must be able to break up a relationship, fire someone at work, or practice religion. Consequently, NIED cases must discriminate among different situations involving emotional suffering. This, Keating argues, is what the proximate cause conception of NIED does. It does not create new obligations but instead extends the reach of existing duties. The proximate cause conception covers instances when a person causes special emotional suffering. Of course, this does not provide a clear rule for the courts to follow in every case, but the law decides which of a person's various interests others have a duty not to harm. Proximate cause distinguishes harm from mere frustration.

In Keating's view, NIED law avoids this danger because it redresses harms that we either cannot or should not steel ourselves against—unusual, excessive harm, in other words. As Keating sees it, this sort of emotional distress has a similar effect to that of physical harm in the way it negates our autonomy. In his view, it is precisely at this point that law can and should acknowledge and redress this particular form of human suffering.

The next chapter moves the examination of the ways law knows the suffering of others from the domain of torts to the law of war. Yale historian John Fabian Witt examines two disparate ideas about suffering in war: one sees suffering as an evil in itself, while the other argues that suffering can actually be a moral, ennobling experience. Witt associates the first view with the work of Henry Dunant. Writing about the mid-nineteenth-century Battle of Solferino between the armies of France and Austria, Dunant described, in great detail, the suffering he saw on the battlefield. The men in his story had been made into murderers by the violence of war, only to become its victims. For Dunant, the real story of war was one of broken men, not heroic action.

Dunant had an agenda when writing his book—he wanted to encourage European nations to care for their wounded and form relief societies for the men coming back from war. He organized a conference in 1863, and the following year, twelve countries came together in Geneva to develop a law of war that would reduce the suffering of soldiers.

For centuries, Europeans had distinguished just from unjust wars. However, Enlightenment thinkers developed the idea of moral symmetry in war, thus setting aside questions of justice or injustice in order to protect combatants from extreme suffering. Dunant, Witt tells us, embraced this idea and argued that there were no just causes in war. Dunant's goal was to minimize suffering, but, as Witt observes, who is to say that sometimes ameliorating the suffering of conflict will not increase the number of conflicts, or increase their duration? And, Witt warns, in his effort to minimize suffering as the highest moral good, Dunant deprives soldiers of meaning in their lives.

In contrast to Dunant's devotion to minimizing suffering, Francis Lieber conceived of suffering in light of the cause for which it was endured. He concluded that to suffer for a principle was the highest form of virtue. He adopted Kant's view that fighting for peace was the purpose of war, meaning that suffering in war had a cause and a reason. Thus, Lieber was not sympathetic to efforts to minimize suffering as an end in itself. Lieber drafted a statement that Abraham Lincoln later published called Instructions for the Government of Armies of the United States in the Field. Unlike Dunant and the Geneva Convention, Lieber and Lincoln defended fighting for morally significant projects, like the emancipation of slaves.

In Witt's view, the visions of suffering offered by Dunant and Lieber are both limited. Dunant ignores the life projects of the people who were the objects of humanitarian concern, while Lieber's view might lead a nation at war to inflict massive and terrible suffering to achieve its ends in situations when those ends did not in fact warrant such suffering. Current international humanitarian law depends more on Dunant's view, in that governments must weigh their potential military successes against possible civilian damage. Yet this proportionality rule, Witt argues, may have no effect on nations committed to a war, because civilian suffering will seem like an easy sacrifice to a moral victory. Beyond that, it is hard to test proportionality, because every nation can claim that its cause is legitimate and thereby justifies any amount of suffering.

Witt argues that the laws of war serve a variety of functions—acting sometimes as norms for decent behavior in conflict, while at other times providing a space for peace in a world of conflict. Witt concludes by proposing a third way of conceiving the laws of war, one that puts suffering at the center and sees suffering as a sign of injustice. In this theory, suffering would serve as an occasion for considering the morality of armed conflict, a trigger for a harder look at the terrible violence that war entails. If a war demands massive violence, then it is most likely an unjust war. This view of suffering, Witt concludes, comes close to providing a universal standard of injustice.

In chapter 4, Cathy Caruth takes up the problem of understanding suffering through the lens of trauma. She is especially concerned with the moral status of suffering in the frame of transitional justice. Yet Caruth is skeptical that any metric is adequate to measure suffering and turns to Ariel Dorman's play Death and the Maiden to illustrate that inadequacy.

The play is set in Chile after the collapse of Pinochet's dictatorship as the country struggles to construct a democracy. The main character, Paulina, was kidnapped and tortured during the dictatorship, but she has returned home, and her husband, Gerardo, is now part of a truth commission in the new government. Gerardo gets a ride home one night from a stranger, Roberto, who returns to their house later to give Gerardo back a spare tire. When he does so, Paulina recognizes the voice of her torturer, holds him at gunpoint, and stages a trial of Roberto's crimes. The play ends ambiguously, and the audience is left unsure as to whether she shoots Roberto. The staged trial, Caruth contends, represents a struggle between the desire to create a democracy and the struggle to prevent the history of trauma from disappearing.

At the start of the play, Gerardo returns home to his wife, and as a human rights lawyer, he represents the return of democracy to Chile. The truth commission of which he is a part will investigate only human rights violations that ended in death, not the suffering of those still living, like Paulina; it excludes the living testimony of the disappeared who actually reappear in the new democracy. Because the commission ignores Paulina's case, she cannot become a part of the new story of democracy created by the commission. The truth of her suffering cannot be spoken within this structure.

Caruth reads the nature of Paulina's suffering through Freud's Beyond the Pleasure Principle. There Freud examines the relationship between disappearance and return in a children's game, "fort and da, meaning there and here." The act of disappearance repeats, she contends, a traumatic event—like a mother's absence. The characters in the play similarly reenact disappearances and returns. Roberto's interactions with Paulina produce a type of return—the re-creation of the scene of her torture.

During the trial Paulina stages, she plays a recording of Schubert's String Quartet No. 14 (Death and the Maiden) and imitates Roberto's voice using the words he said while he raped her. Instead of getting closer to the truth, Caruth argues, "Gerardo and Paulina may be said to be involved, together, in an unconscious reenactment in which the very notion of truth is itself undermined by the performance in which it is staged." Gerardo and Paulina act in opposing ways; Gerardo represents the reestablishment of the rule of law—but a law that does not know Paulina's suffering—while Paulina tries to exact revenge for that suffering in a way that threatens law.

The play centers on performances of suffering and remembrance, and the Schubert quartet, Caruth observes, plays a special role in that it reflects on the nature of performance. For example, Paulina refers to Roberto as the doctor who played Schubert, and she implies that the music does not just remind her of the torture, it also constitutes the torture. Gerardo cannot listen to Paulina talk about her torture and suffering. However, through the music, Paulina tries to transform her torture into a story that can be told.

Yet when Paulina listens to the music, she becomes a part of Roberto's performance of torture. He played this for her before she was tortured to calm her down; essentially, it was part of his game. Listening becomes evidence of suffering, which the play emphasizes when Paulina uses a tape recorder to record Roberto's trial. Paulina has control, however, because she can turn the tape recorder on and off. This represents a contrast with her passive listening to the Schubert while she was tortured, because now, she can actively use the tape recorder to archive Roberto's past actions.

In the English version of the play, Caruth notes, Paulina demands the truth from Roberto and promises that if he confesses he will be as free as Cain in the Bible. God put a mark on Cain, and no one could touch him. Her primary goal, Caruth concludes, is to mark him, so that the history of his torturous actions and her suffering will not disappear, so that she can regain her ability to listen and to be heard. This struggle to be heard is, Caruth notes, endemic to any story of suffering that seeks to find a place in law.

The fifth and final chapter, by Jeannie Suk, concerns the ubiquity of trauma as a frame for knowing the suffering of others. The popularity of trauma is, Suk contends, the result of the work of both the women's movement and the military. Sex for women and war for men are the two twin paths along which the idea of trauma has developed.

The focus on trauma, Suk suggests, began in the late nineteenth century, when doctors, including Freud, tackled hysteria—generally in women—in search of a cure. Initially, Freud hypothesized that "hysterics had each experienced a traumatic event, of which the memory had been repressed into the unconscious mind . . . the repressed trauma was specifically of a sexual nature. Later, he revised his hypothesis, and instead argued that repressed fantasies of sexual seduction" produced psychological trauma. Thus, traumatic memories could be real or based on fantasy.

Starting in the mid-twentieth century, the women's movement used the language of trauma to advocate for women's rights in the context of sexual abuse and domestic violence. In doing so, Suk suggests, it changed our conception of suffering. The struggle for women's rights portrayed women as vulnerable, and the idea of psychological suffering became crucial to the articulation of women's injuries. Sexual trauma was compared to the consequences of war.

The language of trauma has also become a part of the contemporary narrative about abortion. In the early 1990s, Lorena Bobbitt was tried for malicious wounding because she cut off her husband's penis. As a defense, she produced a narrative of trauma that centered on a coerced abortion. More recently, in Gonzales v. Carhart, the Supreme Court upheld a law prohibiting late-term abortions, in part because the justices believed that women would suffer delayed psychological trauma after a period of repression.

Today trauma also creates a new status for veterans—as both victims and perpetrators of crime. Veterans who commit crimes use posttraumatic stress disorder (PTSD) as an explanation. Beyond that, being diagnosed with PTSD has become a way for veterans to obtain government benefits that they otherwise would not be able to get: the category of trauma is promiscuously expanding to accommodate many kinds of suffering in the aftermath of war. Recalling Keating's analysis of NIED, Suk notes that it is unclear whether psychological trauma is in the same category as a physical war wound; it is often ambiguous whether psychological trauma was intentionally inflicted by the enemy, or resulted from the soldier killing or witnessing violence. This tends to collapse the distinction between the perpetrator and the victim of trauma.

In the end, Suk worries about both the ubiquity and the indeterminacy of trauma as a way of acknowledging the suffering of others. Trauma is hard to measure. Moreover, it can be used as both a sign of victimization and an explanation for diminished responsibility by a perpetrator. As trauma becomes a pervasive way of marking suffering, it may permanently change the way the law understands those over whom it exerts power and those who seek redress and remedy from it.

Taken together, the work collected here charts the varied ways that law deals with the suffering of others, from the suffering it imposes to the suffering it recognizes. The challenges noted in this work are both epistemological and ethical, both strategic and political. The contributors note difficulties that accompany efforts to recognize suffering as well as the political projects through which some suffering is made cognizable to law. They note the difficulties associated with efforts to disentangle the mere fact of suffering from the moral, political, and legal justifications offered to explain or condone it. Yet, in the end, their work suggests that law's ability to do justice can be no more successful than its ability to know the suffering that justice demands or seeks to