Taming Suffering

Abstract

The thesis of this essay is that while legal rules fail to attend to (and remediate) individual experiences of suffering, this failure is not a failure of empathy, but is instead a failure of capacity. Law’s failure to attend to suffering qua suffering is a collateral, yet inevitable, limitation of rule-based decision-making. Any rules that constitute the category of remediable suffering necessarily exercise criterial control over what "counts" as remediable suffering and those rules must govern the general (rather than individual) case. Further, rule-based decision-making (as opposed to an individual assessment of each putative instance of suffering) is necessitated by the diversity of circumstances and variety of variables that attend human suffering. We apply a rule-based approach to suffering because to do otherwise – i.e. to construct a purely descriptive, non-normative assessment of what counts as “remediable suffering” in each case – is simply not possible. Such a system would fail at its primary function of sorting experiences that count as suffering from those that do not. A rule that is sensitive to each experience of suffering would extend the concept of “remediable suffering” to every human experience. Such a rule would render meaningless the very concept it constituted. It would, indeed, cease to be a rule. Moreover, while it is possible - and important – to criticize and realign the substantive commitments that underlie the particular rules we have selected to constitute legally remediable suffering, at the end of any substantive realignment we will be left with largely the same conceptual landscape: a concept of “remediable suffering” that excludes suffering that is deemed “abnormal.” Thus, we can change the substantive content of what "counts" as remediable suffering, but we cannot change the fact that outlier suffering – however it is defined- will be excluded.

This essay offers a response and supplement to the insights contained in Linda Meyer’s rich and provocative piece, "Suffering the Loss of Suffering: How Law Shapes and Occludes Pain." Meyer observes that formal rules, and specifically legal rules, fail to respond or remediate certain categories of individual suffering (e.g. the specific suffering of a mother who is separated from her child due to imprisonment). Instead, legal rules respond to a generalized normative baseline of remediable suffering (e.g. expected suffering; average suffering; undeserved suffering) rather than attending to suffering qua suffering. Meyer's challenges us to consider whether law should attend to individual suffering – a proposition that this essay posits is not possible.

Keywords: pain, punishment, suffering, rules, generalizations, concepts, individualized