Recognizing Odysseus' scar: Reconceptualizing pain and its empathic role in civil adjudication

Abstract
This Article proffers a consideration of how the expression of pain impacts the interpersonal dimensions of personal injury proceedings, contesting through philosophical logic and textual analyses of case law and legal practitioners' texts the conclusion of scholars such as Elaine Scarry and Robert Cover that pain unmakes both the word and the world. Seeing pain as something that can and must be communicated, albeit in a different form than pain embodied, makes pain a much more profound force, comports with our understanding of pain as a physical yet interpersonally meaningful sensation, and has many evidentiary ramifications. Taking as its premise the perspective that legal constructions of pain are intrinsically relational and empathic, this Article proposes a reformulation of pain as a dual construct, at once experiential and expressionistic, that is supported by both semiotic theory and by Wittgenstein's refutation of the private language argument associated with Cartesian dualism. Pain as a dual construct is the most appropriate model for the legal construction of pain in personal injury litigation. This Article then turns to the implications of reformulating pain as a dual construct, examining how its grounding in social practice demands a more complex analysis than the existing model put forth by Elaine Scarry, who posits that imagination enables nonsufferers to access another's suffering; this model is inadequate because pain-full phenomena must instead be grounded in social practice and structured by and through language. Only then is it possible to elucidate the development of an empathic connection between a sufferer and another and the legal consequences of that relation. This Article concludes by describing how the model of pain that law currently adopts in principle (but not in practice) extinguishes pain's interactive potential, demonstrating the necessity of a conscious recognition of interpersonal pain-full reality.
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