Pain and the law

Authored by: Ben A. Rich

The Routledge Handbook of Philosophy of Pain

Print publication date:  June  2017
Online publication date:  July  2017

Print ISBN: 9781138823181
eBook ISBN: 9781315742205
Adobe ISBN:

10.4324/9781315742205.ch34

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Abstract

This chapter will consider how pain, and the related yet conceptually distinct phenomenon of suffering, are addressed in the law. The focus will be civil rather than criminal law, and predominantly the sub-domain of civil law known as torts. A tort is a civil wrong in which the injured party may be compensated with an award in damages. The examples and illustrations will be drawn largely from the Anglo-American sources with which the author is most familiar. I will begin with an analysis of the term “pain and suffering” as it is commonly used in tort law. This will be necessarily brief, and perhaps singularly unsatisfying from a philosophical perspective, because of the largely unreflective approach the law has taken to what many scholars consider a deeply profound and significant dimension of the human experience. Next, I will discuss the critical role of pain and suffering as the basis for “non-economic damages” in tort litigation through a concise overview of the vigorous ongoing debate among legal scholars as to whether the award of such damages comports with the role of tort law in the legal system.

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