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1 Suffering the Loss of Suffering How Law Shapes and Occludes Pain Linda Ross Meyer For two months I’d been physically and emotionally ricocheting between her hospital bed and the prison class I was teaching. At last, she had been sent home to die. I sang to her all through the night. And all through the night she stared at me. Was she crying, or were her eyes merely watering because she could no longer blink? Was she telling me she loved me, or was she telling me she was in pain? Maybe she was begging me to stop singing and leave her in peace. Or maybe she was already too far gone, her stare blank and empty, her ears deafened. But still I sang, all the songs we used to sing together through all the seasons of my childhood. Just in case.1 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 memory, dream, flashback, or imagination? Perhaps pain is not private at all, but just another language game,public and as accessible as any language game?3 Or, is pain a scientifically ascertainable state of the body or brain?4 None of these questions are adequately answered by philosophy, psychology , or science. Yet law must judge these matters anyway if it seeks to provide protection against and redress for pain. Recent scholarship in areas of the law of loss (especially crime and tort) suggests that the law needs to pay more attention to pain. From philosophers who argue that law should be directed to the alleviation of pain,5 to scholars who want law to attend more carefully to the (crime or tort) victims ’experience,6 to tort theorists who argue for “full compensation” rather Suffering the Loss of Suffering 15 than “fair compensation,”7 to law and science scholars who argue for introducing brain imaging of pain into court proceedings, the call is for law to take more seriously the raw experience of pain. Traditionally,however,the law’s determination of what counts as remediable loss or pain is not merely a matter of encounter,testimony,observation, or measurement,even if science gives us new evidence that pain is something that can be encountered, told, observed, and measured. As Professor Fuller said nearly seventy years ago,“the things which the law of damages purports to ‘measure’ and ‘determine’—the ‘injuries’, ‘items of damage’, ‘causal connections ’, etc.—are in considerable part its own creations.”8 This essay examines legal redress for loss in various doctrines of private and public law in order to map the relation of law and suffering and explore how they shape each other.9 Unsurprisingly, perhaps, one finds that “suffering ”in legal contexts is closely associated with breaches of law.“Assault,” for example, describes both the wrong and the harm. Damages and wrong often mirror each other in this way in legal doctrine, and one depends on the other.10 Physical pain and tangible loss are not always compensable,and compensation does not always require physical pain or tangible loss. Compensable suffering in law,in other words,is often not (or at least not merely) about the intensity of the experience of pain, nor is it about a medical or scientific state of affairs,whether monetary,biological,chemical,or psychological . Instead, suffering appears in the eyes of the law, at least in part, as the absence of reason and norm.This absence,in turn,is closely intertwined with the absence of “pattern,”the absence of the usual, of rule, of reliability, and the absence,therefore,of lawfulness itself.Law seems to compensate for the lack of law,for“unjustified”or“unusual”suffering,but not for experiences of suffering “as such.”Is law wrong to do so? Is there some other prenormative account of suffering to which law should respond? Can “raw”suffering cut through legal language? I am haunted by a quotation from Emmanuel Levinas: “the justification of the neighbor’s pain is surely the source of all immorality.”11 Should not law indeed attend to the neighbor’s pain, seek to alleviate it, or show concern for it, regardless of its...

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