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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 2 Sarat 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 pain”14 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...

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