Vol. 12 (August 2001) pp. 412-415.
PAIN, DEATH, AND THE LAW by Austin Sarat (Editor). Ann Arbor: The University
of Michigan Press, 2001. 168 pp. Cloth $52.50 ISBN: 0-472-09767-9. Paper
$24.95 ISBN: 0-472-06767-2.
Reviewed by Mark Kessler, Department of Political Science, Bates College.
In the celebrated essay, "Violence and the Word," Robert Cover (1986) developed a novel perspective on
law captured in the haunting and often quoted opening sentence: "Legal interpretation," he wrote, "plays
on a field of pain and death." Cover's suggestion that law, pain and death are intimately related inspired
the essays collected in the volume under review, edited by Austin Sarat. Drawing on works in history, philosophy,
and literature, and reading and interpreting a range of judicial opinions, these essays explore such relations
by focusing on several important areas--how pain and death are constructed in and by law, how specific constructions
of pain evolved over time, the consequences of differing conceptions of pain for legal interpretation, and how
both pain and death may give meaning to law. Throughout the book, authors' highlight the ways in which judicial
decisions portray the human body in pain and the ways in which death and pain are transformed into jurisprudential
"facts."
This brief collection (160 pages of text) is composed of five essays plus an introduction by the editor. Sarat's
useful introduction places the essays in the context of a critique of both traditional and critical legal theories.
Legal theory in general, he argues, fails to acknowledge law's role in inflicting pain and producing death. Indeed,
much of contemporary legal theory "promotes righteous indifference and allows pain and death to proceed unabated."
Moreover, according to Sarat, legal theory fails to recognize that "the business of law, when everything else
is said and done, is a painful, often deadly one, that legal interpretation is frequently a preface to the use
of physical force, and that the law traffics in pain and death with ... cool efficiency" (p. 2). Sarat directs
attention not only to physical manifestations of pain and death but also to their "linguistic life" in
historical and cultural space. According to his view, "pain and death live in and through various institutions
and their linguistic practices, institutions and practices that are historically and culturally situated"
(p. 7).
Karl Shoemaker, in "The Problem of Pain in Punishment," provides an historical account of evolving conceptions
of pain's place in regimes of punishment. Showing clearly the historical contingency of pain's relation to punishment,
he highlights a shift in the eighteenth century from the use of a wide range of brutal corporal punishments to
the increasing use of forms of punishment that obscure pain, such as incarceration. In illuminating readings of
Dante and Hegel he shows that pain had a spiritual, transcendent meaning, conceived as a sign, signal, or symptom
of the soul's internal strife prior to the eighteenth century. Pain, according to thisconstruction, is not necessarily
evil since experiencing it is connected to the soul's redemption. In this way, pain had a distinguishable and significant
meaning. Later in time, pain lost its transcendent qualities, its "otherworldly promise" (p. 35), and
thus, became less intelligible. When it appears as part of punishment it is viewed as a
necessary evil and is employed reluctantly. Shoemaker links these changes in the intelligibility of pain to shifts
in the state's imposition of pain in punishment over time.
Austin Sarat's substantive contribution, "Killing Me Softly," explores in historical perspective the
rituals and technologies employed to end life in the criminal justice system. He outlines how the often brutal
public executions of yesterday, relying on such techniques as hanging and electrocution, have been transformed
in the modern era to private bureaucratic operations relying on more "humane" and less overtly painful
techniques, such as lethal injection. Why is the state concerned about the pain and suffering of those it kills?
Sarat answers this important question by arguing that the newer emphasis on painless death lends legitimacy to
capital punishment, as it works "to differentiate state killing from murder and hierarchize the relation between
the state and those whose lives it takes" (p. 48). "We kill gently," writes Sarat, "not out
of concern for the condemned but rather to vividly establish a hierarchy between the law-abiding and the lawless"
(p. 68).
In "What the Law Must Not Hear," Timothy V. Kaufman-Osborn focuses on the legal construction of pain
in judicial opinions dealing with the constitutionality of hanging and electrocution as methods of capital punishment.
Through close, insightful readings of judges' writings he shows the discursive nature of pain and the debilitated,
impoverished rhetoric surrounding debates about pain in capital punishment. These aspects of pain's relation to
punishment are effectively illustrated in a thoughtful analysis of the bungled Florida electrocution of Alan Lee
Davis and the court case that followed. Kaufman-Osborn shows (both in words and in three
gruesome photographs) that, under certain circumstances (in this case, the electrical currents produced significant
blood discharges), the pain associated with capital punishment might be made visible even as courts find ways to
suppress it. This is significant because, according to this author, the liberal biomedical conception of pain he
reads in current judicial opinions makes it difficult to see pain and therefore to contest state power. Kaufman-Osborn
calls for a clearer recognition that pain is a discursively constructed reality, a recognition encouraging new
vocabularies of pain and narratives of resistance that highlight and contest pain's presence in
punishment.
Jennifer L. Culbert, in "The Sacred Name of Pain," interprets several Supreme Court decisions regarding
the admissibility of victim impact evidence in capital trials. She argues that the Court's recent embrace of this
evidence, in the face of previous decisions ruling the introduction of such evidence unconstitutional, illustrates
a need for the legitimation of state imposed death. The Court, she suggests, treats the pain and suffering of murder
victim's survivors as an absolute, or "a sacred name," an ideal fulfilling a need to "systematize
and negate the vicissitudes of life" (p. 119). Even though the circumstances producing pain are particular
and individualistic, pain is an experience with which everyone is familiar. It is this universal connection to
pain that the Court welcomes into legal proceedings in an effort to "justify the finality of a sentence of
death in a pluralistic society" (p. 113).
Finally, in "The Problem of Pain and the Right to Die," Shai J. Lavi explores the role of pain in legal
cases involving the right to die. Cases involving physician-assisted suicide, terminal sedation, withholding treatment,
and withdrawal of life support center on specific and evolving constructions of pain's relation to processes of
dying and different conceptions of the "problem" that pain presents. Initially, Lavi shows, courts see
the right to die as a problem of identifying the patient's will. But, in more recent cases, courts look at conditions
surrounding dying patients, especially their level of pain. They consider, Lavi argues, a "crude calculus
of pain," measuring its intensity and presuming that life is worth living only when pleasure outweighs pain.
This shift in emphasis and judgment is accompanied by specific medical constructions of pain that then are inscribed
in law. Pain eventually came to be understood as "senseless" in the context of medical treatments of
dying patients and, once conceived in this way, pain became a "problem" to be resolved by death.
Essays in this collection are consistently strong, offering penetrating and provocative analyses of pain's role
in law and punishment. As such, they illuminate important and often neglected dimensions of criminal punishment
and judicial decision making. Taken together, the essays are characterized by skillful and thoughtful interdisciplinary
inquiry. The editor's modest hope for this volume-"to mark a path for inquiry that might in the future be
extended" (p. 8)--is clearly realized.
Moreover, the essays show quite clearly how connections between pain, death, and law provide legitimacy to a legal
order that puts humans to death.
Sarat, for example, shows how new rituals and technologies of capital punishment render death "a hidden reality"
(p. 51), dramatize the superiority of law-abiding citizens and the state, and serve as a boundary that "marks
the distinction between state violence and violence outside the law, between a death we call capital punishment
and a death we call murder" (p. 48). Culbert shows how admitting evidence of pain (of murder victim's survivors)
into capital legal proceedings "provides judges with a unique moral power in a liberal, pluralist society"
(p. 104), a moral power that permits them to claim that they do justice.
This collection has less to say, however, about ways in which this perspective on pain, death, and law might be
employed to question, challenge, and disrupt the legitimacy it so persuasively demonstrates. How may these insights
about pain and death be used to challenge state power by those presently victimized by state inflicted pain or
those likely to have pain or death inflicted upon them in the future? Kaufman-Osborn begins consideration of this
question by discussing the need for developing new vocabularies of pain that challenge or resist conventional medical
constructions. And he shows how questioning the state's involvement in capital punishment may follow concrete events
that make pain visible, such as the Davis electrocution.
Indeed, the recent case of John W. Byrd, Jr. in Ohio suggests that there are spaces for "politicizing pain",
as Kaufman-Osborn calls it, and making pain's connection to capital punishment visible in choices that defendants'
make in concrete cases. Byrd, on death row and scheduled to be executed in mid-September, insists on the electric
chair rather than lethal injection to show "the cruelty of capital punishment," as the NEW YORK TIMES
story puts it (Clines 2001). Byrd's choice is explained by his attorney: "John feels that this
shouldn't be like taking the family pet to the vet's to have him quietly put to sleep. He wants taxpayers to understand
they play a role in executions and that killing can't be sanitized." Byrd's decision mobilized a group of
capital punishment advocates to seek state legislation banning any method of capital punishment other than lethal
injection and an anti-capital punishment group, Ohioans to Stop Executions, supporting his decision.
"Politicizing pain" as a way of challenging "the antipolitical alliance of a medical profession
that affirms its hegemonic authority over the meaning of pain and a state that affirms its monopolistic control
over the means of legitimate violence" (p. 102) seems a promising strategy for those philosophically opposed
to state killing and by those who recognize the dramatic class and racial disparities in the state's imposition
of pain and death (a situation that receives only one brief mention in this book).
Understanding the discursive quality of pain, the historical and cultural contingency of its meanings, and the
ways in which it is legally constructed and related to punishment are crucial steps on the road to political challenge
and contestation. Thus, a close reading of this innovative volume will assist those interested in conducting grounded
studies that explore further not only the sources of legal legitimacy, but also how we may ultimately disrupt the
legitimacy of a legal order where "legal interpretation plays on a field of pain and death."
REFERENCES:
Clines, Francis X. 2001. "Inmate's Chosen Means of Execution Starts New Debate." NEW YORK TIMES. 20 August:
A14, c.1.
Cover, Robert. 1986. "Violence and the Word." YALE LAW JOURNAL 95:1601-1629.
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Copyright 2001 by the author, Mark Kessler.