Abstract

In legal domains ranging from tort to torture, pain and its degree do important definitional work by delimiting boundaries of lawfulness and of entitlements. Yet, for all the work done by pain as a term in legal texts and practice, it has a confounding lack of external verifiability. Now, neuroimaging is rendering pain and myriad other subjective states at least partly ascertainable. This emerging ability to ascertain and quantify subjective states is prompting a "hedonic" or a "subjectivist" turn in legal scholarship, which has sparked a vigorous debate as to whether the quantification of subjective states might affect legal theory and practice. Subjectivists contend that much values-talk in law has been a necessary but poor substitute for quantitative determinations of subjective states--determinations that will be possible in the law's "experiential future." This Article argues the converse: that pain discourse in law frequently is a heuristic for values. Drawing on interviews and laboratory visits with neuroimaging researchers, this Article shows current and in-principle limitations of pain quantification through neuroimaging. It then presents case studies on torture-murder, torture, the death penalty, and abortion to show the largely heuristic role of pain discourse in law. Introducing the theory of "embodied morality," the Article describes how moral conceptions of rights and duties are informed by human physicality and constrained by the limits of empathic identification. Pain neuroimaging helps reveal this dual factual and heuristic nature of pain in the law, and thus itself points to the translational work required for neuroimaging to influence, much less transform, legal practice and doctrine.

Authors

Pustilnik AC

Institution

University of Maryland School of Law, USA.

Source

Cornell law review 97:4 2012 May pg 801-48

MeSH

Abortion, Legal
Acute Pain
Bioethical Issues
Brain Mapping
Capital Punishment
Cause of Death
Diagnostic Imaging
Empathy
Female
Fetus
Humans
Injections, Intravenous
Legislation, Medical
Magnetic Resonance Imaging
Moral Obligations
Neuromuscular Blocking Agents
Nociceptors
Pain
Pain Measurement
Pain Perception
Pregnancy
Pregnancy Trimester, Third
Pregnant Women
Torture
United States

Pub Type(s)

Journal Article

Language

eng

PubMed ID

22754972