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Commentary: Taming Suffering - Meredith M. Render
- The University of Alabama Press
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commentary on chapter 1 Taming Suffering Meredith M. Render 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 , observation, or measurement”but is instead a construct of law itself.2 In shaping the law,we have made choices and decisions about what “counts” as compensable suffering and what does not.For example,the pain and suffering that necessarily attends incarceration following a criminal conviction is not “remediable suffering,” although it quite obviously falls squarely within our conventional concept of suffering. However, the law does provide compensation for the wanton and unnecessary pain that is intentionally inflicted on inmates. Unnecessary pain in this context is most broadly conceived of as any pain that extends beyond or exceeds the “background”suffering inherent in the circumstance of imprisonment.3 Yet the “background” pain of incarceration—the agonizing pain of a mother’s prolonged separation from her young children, for example—can often be much more acute, excruciating, and intolerable than pain that the law is structured to remediate .Through our legal rules we have chosen to be attentive to some aspects of the suffering that accompany the circumstance of incarceration,while simultaneously deciding not to remediate others. Meyer’s project illuminates the boundaries of these decisions. She contends that “suffering appears in the eyes of the law,at least in part,as the absence of reason and norm.”4 The absence of “reason”and “norm”she takes to be closely intertwined with the absence of “pattern”and “rule”and “therefore of lawfulness itself.”5 Meyer reveals that law fails to be attentive to suffering Commentary: Taming Suffering 63 qua suffering.Law is not especially attentive to the particular hedonic experience of an individual sufferer,in light of,for example,that sufferer’s hedonic baseline and unique experience of loss or pain.6 Instead, the law makes use of normative generalizations in defining the parameters of remediable suffering , ostensibly aiming to capture what most people are most likely to experience (or, perhaps more often, what we think people should experience) under the circumstances. Law, in this construal, applies a rule-based framework to suffering, and in so doing has a disciplining effect. Law marshals the unruly,the contingent,the potentially unknowable and certainly unpredictable experience of suffering into discrete and comprehensible categories (e.g.,“background”[and therefore irremediable] loss versus “wrongful”[and therefore compensable] loss).The lack of calibration, of accuracy, and of attentiveness to suffering qua suffering that Meyer identifies is a consequence of this marshaling. It is the product of a rule-based approach that, necessarily , eschews the particular in favor of the general. At base what Meyer is describing is the law acting as an umpire, identifying —indeed constituting—what “counts” as suffering.7 More accurately, the law in this context constitutes an entirely new category: “compensable suffering.”8 Put this way, the proposition is perhaps less controversial. Law creates and constitutes most of the concepts and norms it employs.The legal concept of “person” is distinct from our conventional concept of “person.”9 The legal concept of person is constituted by legal practice,not conventional practice, and when we refer to the legal concept of person we mean “legal person.” Perhaps we should not be surprised to discover that the legal concept of “suffering” is distinct from our conventional concept of “suffering.” Perhaps when the law makes reference to suffering, it gives only a passing nod to our conventional concept and instead refers to the entirely distinct concept of “legally cognizable suffering.” Yet Meyer’s chapter suggests that in applying this rule-based normative overlay to suffering,the law is absenting—or,to use her word,“occluding”— something important.10 Meyer demonstrates that in adhering to a rule-based model of suffering,the law neglects significant and salient categories of suffering .11 In particular,Meyer identifies three categories of suffering that law fails to compensate: (1) suffering that is legally justified—for example, the suffering that follows from being imprisoned following a conviction;12 (2) “outlier suffering”—that is, suffering that strays in some way from a normative and probabilistic baseline construct of what an average person would likely experience under the circumstances;13 and finally, (3) suffering...