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Knowing the Suffering of Others

Legal Perspectives on Pain and Its Meanings

Austin Sarat, Austin Sarat, Montré D. Carodine, Cathy Caruth, Alan L. Durham, Brian K. Fair

Publication Year: 2014

In Knowing the Suffering of Others, legal scholar Austin Sarat brings together essays that address suffering as it relates to the law, highlighting the ways law imagines suffering and how pain and suffering become jurisprudential facts.

From fetal imaging to end-of-life decisions, torts to international human rights, domestic violence to torture, and the law of war to victim impact statements, the 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 perceive and understand suffering in such varied domains of legal life? What problems of representation and interpretation bedevil efforts to grasp the suffering of others? What historical, political, literary, cultural, and/or theological resources can legal actors and citizens draw on to understand the suffering of others?

In Knowing the Suffering of Others, Austin Sarat presents legal scholarship that explores these questions and puts the problem of suffering at the center of thinking about law. The contributors to this volume 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. They examine how pain and suffering help construct and give meaning to the law as we know it. The authors attend to the various ways suffering appears in law as well as the different forms of suffering that require the law’ s attention.

Throughout this book law is regarded as a domain in which the meanings of pain and suffering are contested, and constituted, as well as an instrument for inflicting suffering or for providing or refusing its relief. It challenges scholars, lawyers, students, and policymakers to ask how various legal actors and audiences understand the suffering of others.

Contributors
Montré D. Carodine / Cathy Caruth / Alan L. Durham / Bryan K.Fair / Steven H. Hobbs / Gregory C. Keating
/ Linda Ross Meyer / Meredith M. Render / Jeannie Suk / John Fabian Witt

Published by: The University of Alabama Press

Title Page. Copyright, Dedication

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Contents

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pp. vii-viii

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Acknowledgments

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pp. ix-x

This volume is the product of a symposium held at the University of Alabama School of Law on March 30, 2012. I want to thank the colleagues, students, and staff who helped make that such a successful event. I am grateful for the financial support of the University of Alabama Law School Foundation. A special word of thanks to former Dean Ken Randall for his unstinting...

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Introduction: Pain and Suffering as Facts of Legal Life

Austin Sarat

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pp. 1-13

“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...

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1. Suffering the Loss of Suffering: How Law Shapes and Occludes Pain

Linda Ross Meyer

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pp. 14-61

What is suffering? Is suffering the same as pain? Do we know another’s pain immediately, or is pain so elusive that we cannot speak of it, measure it, or believe in it anywhere but in our own bodies? Is pain a world-ending, searing, and unshareable experience that presses only on the one who suffers?2 Can we even know our own pain completely, or does it hide in...

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Commentary: Taming Suffering

Meredith M. Render

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pp. 62-77

How does law take account of, and attend to, suffering? This is the subject of Linda Meyer’s rich and insightful chapter, “Suffering the Loss of Suffering: How Law Shapes and Occludes Pain.”1 In this work, Meyer provides an intriguing account of law’s constitutive power. Legally remediable suffering, she persuasively argues, “is not merely a matter of encounter, testimony...

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2. The Ambiguous Standing of Suffering in Negligence Law

Gregory C. Keating

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pp. 78-121

Robert Cover’s essay “Violence and the Word” shatters a soothing fantasy.1 We surrender willingly to the seductions of the law’s intellectual intricacy and difficulty. The interpretation of legal texts acquires the allure of an Olympics of the mind. We succumb to the exhilaration of intellectual exertion and the glories of deep collective self-understanding and self-constitution. “Violence...

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Commentary: Emotional Distress and the Victim’s Perspective

Alan L. Durham

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pp. 122-128

Tort law severely limits recovery for negligently inflicted emotional distress. In “The Ambiguous Standing of Suffering in Negligence Law,” Gregory Keating observes that unchecked recovery for emotional harm would jeopardize activities indispensable to the modern world. One cannot make the omelets of a contemporary society without breaking some emotional eggs, yet...

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3. Two Conceptions of Suffering in War

John Fabian Witt

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pp. 129-157

In 1862, a thirty-one-year-old Swiss man named Henry Dunant wrote a story about war. Dunant was as unlikely a humanitarian as he was a best-selling author. He was a nervous man, a banker and colonial entrepreneur, born into a prominent and wealthy Swiss family, saddled now with a floundering business venture in French Algeria. But in his...

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Commentary: Personal Reflections on Professor John Fabian Witt’s “Two Conceptions of Suffering in War”

Stephen H. Hobbs

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pp. 158-169

Professor John Fabian Witt presents an explication of the formal theories on suffering during armed conflict from the perspective of two theoreticians whose early writings were seminal in the development of contemporary thinking on international humanitarian law. Looking at the work of Henry Dunant and Francis Lieber, he describes the strengths and challenges...

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4. Disappearing History: Scenes of Trauma in the Theater of Human Rights

Cathy Caruth

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pp. 170-200

Ariel Dorfman’s 1991 play Death and the Maiden is set in the present time in a country that “is probably Chile” but “could be any country that has just departed from a dictatorship.”1 Taking place in a remote beach house primarily on a single night and day, the play follows the actions of a woman, Paulina, who was tortured by the previous regime and whose husband, Gerardo, a...

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Commentary: A Record but No Truth? Recording and Re-recording Trauma in the Real-Life Struggle for Civil Rights

Montré D. Carodine

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pp. 201-211

Professor Caruth’s chapter entitled “Disappearing History: Scenes of Trauma in the Theater of Human Rights” provides an interesting and excellent commentary on Ariel Dorfman’s 1991 play Death and the Maiden.1 Professor Caruth notes, among other important points, that the play “specifically links the question of truth to the nature of its appearance, or the role of...

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5. Laws of Trauma

Jeannie Suk

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pp. 212-235

Major Rhonda Cornum was at war in the Persian Gulf. In February 1991, the thirty-six-year-old US Army flight surgeon was on a Blackhawk helicopter in Iraqi airspace, leading her battalion in a search and rescue mission for a downed F-16 pilot. The helicopter came under enemy fire and crashed, killing most of her fellow soldiers onboard. Major Cornum...

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Commentary: Knowing the Suffering of Others: A Commentary on Jeannie Suk’s “Laws of Trauma”

Bryan K. Fair

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pp. 236-242

In her essay “Laws of Trauma,” Professor Jeannie Suk has written a perceptive analysis of the use and function of trauma as an increasingly influential trope in popular public and legal discourse. Suk reintroduces the harrowing story of Brigadier General Rhonda Cornum, who survived her brutalization as a prisoner of war and who is now the director of a new training...

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Contributors

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pp. 243-244

Montré D. Carodine is an associate professor of law at the University of Alabama School of Law.

Cathy Caruth is Frank H. T. Rhodes Professor of Humane Letters at Cornell University.

Alan L. Durham is Judge Robert S. Vance Professor of Law at the University of Alabama School of Law.

Bryan K. Fair is Thomas E. Skinner Professor of Law at the University of Alabama School...

Index

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pp. 245-253


E-ISBN-13: 9780817387419
E-ISBN-10: 0817387412
Print-ISBN-13: 9780817357689
Print-ISBN-10: 0817357688

Page Count: 263
Publication Year: 2014