Pain as a fact and heuristic: how pain neuroimaging illuminates moral dimensions of law

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.     

The Public Service: Independence, Responsibility and Responsiveness

In recent years there has been controversy surrounding the issues of the independence, responsibility and responsiveness of our public services. Critics come from two opposing directions: (i) there have been charges of politicisation of the public service, with the implication that it has lost its independence and become dominated by the government; (ii) Pusey (1991) has accused 'economic rationalists' in the public service of pursuing their own neo-classical agenda and dominating government policy. Both criticisms reveal a misunderstanding of the respective roles and responsibilities of ministers and public servants and the proper relations between them. In our system of democratic government, it is the prerogative of ministers to decide and the role of departments to propose and advise and then implement the decisions of ministers. This contribution begins by considering the respective responsibilities of ministers and officials, before canvassing the charges of politicisation and what should be expected from public servants in contributing to policy development. Finally there is consideration of the ethical values of public servants and what responsibility they might have for the 'public interest'.