Week 3:
Sensing suffering: On common sense and compassion in the legal
imagination and recognition of torture.
2020 Cakal
Notes
1. Sensing suffering
- The question here is when is the pain worthy enough to enough for our attention
- There are suffering and forms of torture that don’t leave a mark, ie: solitary confinement
- The expectation is, “We know torture when we see it”.
- Torture is “sensorial” and “relational”.
- The open nature of torture gives room for individuation, intersubjectivity and
“shareability” of pain.
- Torture is reduced with its physical variety treated as fundamental and
archetypal–leading to the downgrading of psychological suffering
2. Emotion in Torture Adjudication
- It is not just the linguistic coding or the conceptualization of emotions in judgment but
also the cognitive process that is relevant to the question at hand
- Why exactly is emotion?
Sharyn Roach and Kathy Mack adopt a ‘composite’ approach in characterizing it as ‘interactive,
interdependent and context-specific as well as subjective, internal and personal . . .
psychobiological (recognizing instinct or impulse) and individual [and as] social practice
performed in, emergent from and embedded in the social settings and situations’.
- Further adding on what emotions
a. Appraisals of a situational stimulus or context
b. Changes in physiological or bodily sensations
c. The free or inhibited display of expressive gestures
, d. A cultural label applied
- Feelings and effects are less specific
- Moods and sentiments are more specifics
- Disgust is a very significant emotions in discourses of torture
- Urges international actors to not “weed” out the truth, rather they should be the central
themes and embraced as they are part of the messy and subjective truth/reality.
- The argument here is that cognitive reasoning isn’t purely based on reason rather
emotions play an intrinsic and linked part in cognitive reasoning.
- Not only should emotions be accounted for during trial, but in preliminary ways as well,
ie: advocats accounting for emotions when building a case for their clients that articulate
their experiences
- Law engages with emotional dimension through two parts, compassion and common
sense
2.1 Common-sense
- Common sense: must have been, should have been, could have been
- Double-edged sword
- He characterizes this automatic cognition as involving the ‘rapid, effortless, and
unintentional processes of information, essentially activating some well- learned set
of associations or responses that have developed through the repeated activation of
memory
- May lead to systematic errors, however, they are quick guidelines for even empirical
evidence
- Commonsensical approaches, with claims to logic and experience, are generally
gestured at the language around precedent, procedure and evidence
a. Must have been (painful) reasoning
- Claims ought to be assessed case-by-case, however this kind of reasoning overrides
rule of thumb which essentialise the nature of harm attached to certain experiences
as singular and inarguable.
- Ie: Rape
- The issue here is that common sense is subjective, and had cultural contingency
, - It also asserts that torture is dark and happens in an unnoticed way, however, it may
happen in daylight as well, and our common sense might not pick up on it
- equating torture with ‘acts of extreme barbarity’.70 This is also related to the
visual-evidentiary paradigm which treats ‘verbal torture testimony- nies as inferior to
photographic or video evidence’
- Tort law especially does not accept emotional torture
- Should have: needs visual corroboration
- Reasoning here exudes an objectivist or universalist inclination that presumes or infers
harm based on preconceived and prejudiced examination of facts. Adjudicators unduly
override expert evidence by applying their own ‘folk wisdom’ as well as through the
‘invocation of emotional common sense silently privileges their views’
(i) ‘must have been’ reasoning (eg methods such as electrocution, rape, falaka ‘can only be’
torture);
- allows for simpler reasoning and legal action
(ii) ‘should have been’ reasoning (cases ought to have a ‘special stigma’, entailing direct
causality, and prolonged and visible evidence of something beyond the ‘inevitable’); and,
- it may reproduce the imaginary and hierarchy between torture practices
(iii) ‘could have been’ reasoning (that the allegations ‘may have been’ due to something else,
despite expert evidence to the contrary).
- undercut case-by-case evaluation, especially in emerging practices
2.2. Compassion
- Jusgde may feel pain and compassion and react to the victim’s or other’s involved
experiences but she will not be permitted to nor will she use that as a reason to change
it. As per law doctrine.
- The avoidance of emotions affects and experiential understanding reflects an
impoverished view of reason and understanding
- One that focuses on cognition in a reductive manner
- Empathy much like common sense is subjective to bias and stereotype.
- The ECtHR employed the language of emotions and other forms of psychological
conditions within their frameworks
- The suffering of a family member has a dimension and character distinct from emotional
distress inevitably stemming from the situation too according to the ECtHR
Sensing suffering: On common sense and compassion in the legal
imagination and recognition of torture.
2020 Cakal
Notes
1. Sensing suffering
- The question here is when is the pain worthy enough to enough for our attention
- There are suffering and forms of torture that don’t leave a mark, ie: solitary confinement
- The expectation is, “We know torture when we see it”.
- Torture is “sensorial” and “relational”.
- The open nature of torture gives room for individuation, intersubjectivity and
“shareability” of pain.
- Torture is reduced with its physical variety treated as fundamental and
archetypal–leading to the downgrading of psychological suffering
2. Emotion in Torture Adjudication
- It is not just the linguistic coding or the conceptualization of emotions in judgment but
also the cognitive process that is relevant to the question at hand
- Why exactly is emotion?
Sharyn Roach and Kathy Mack adopt a ‘composite’ approach in characterizing it as ‘interactive,
interdependent and context-specific as well as subjective, internal and personal . . .
psychobiological (recognizing instinct or impulse) and individual [and as] social practice
performed in, emergent from and embedded in the social settings and situations’.
- Further adding on what emotions
a. Appraisals of a situational stimulus or context
b. Changes in physiological or bodily sensations
c. The free or inhibited display of expressive gestures
, d. A cultural label applied
- Feelings and effects are less specific
- Moods and sentiments are more specifics
- Disgust is a very significant emotions in discourses of torture
- Urges international actors to not “weed” out the truth, rather they should be the central
themes and embraced as they are part of the messy and subjective truth/reality.
- The argument here is that cognitive reasoning isn’t purely based on reason rather
emotions play an intrinsic and linked part in cognitive reasoning.
- Not only should emotions be accounted for during trial, but in preliminary ways as well,
ie: advocats accounting for emotions when building a case for their clients that articulate
their experiences
- Law engages with emotional dimension through two parts, compassion and common
sense
2.1 Common-sense
- Common sense: must have been, should have been, could have been
- Double-edged sword
- He characterizes this automatic cognition as involving the ‘rapid, effortless, and
unintentional processes of information, essentially activating some well- learned set
of associations or responses that have developed through the repeated activation of
memory
- May lead to systematic errors, however, they are quick guidelines for even empirical
evidence
- Commonsensical approaches, with claims to logic and experience, are generally
gestured at the language around precedent, procedure and evidence
a. Must have been (painful) reasoning
- Claims ought to be assessed case-by-case, however this kind of reasoning overrides
rule of thumb which essentialise the nature of harm attached to certain experiences
as singular and inarguable.
- Ie: Rape
- The issue here is that common sense is subjective, and had cultural contingency
, - It also asserts that torture is dark and happens in an unnoticed way, however, it may
happen in daylight as well, and our common sense might not pick up on it
- equating torture with ‘acts of extreme barbarity’.70 This is also related to the
visual-evidentiary paradigm which treats ‘verbal torture testimony- nies as inferior to
photographic or video evidence’
- Tort law especially does not accept emotional torture
- Should have: needs visual corroboration
- Reasoning here exudes an objectivist or universalist inclination that presumes or infers
harm based on preconceived and prejudiced examination of facts. Adjudicators unduly
override expert evidence by applying their own ‘folk wisdom’ as well as through the
‘invocation of emotional common sense silently privileges their views’
(i) ‘must have been’ reasoning (eg methods such as electrocution, rape, falaka ‘can only be’
torture);
- allows for simpler reasoning and legal action
(ii) ‘should have been’ reasoning (cases ought to have a ‘special stigma’, entailing direct
causality, and prolonged and visible evidence of something beyond the ‘inevitable’); and,
- it may reproduce the imaginary and hierarchy between torture practices
(iii) ‘could have been’ reasoning (that the allegations ‘may have been’ due to something else,
despite expert evidence to the contrary).
- undercut case-by-case evaluation, especially in emerging practices
2.2. Compassion
- Jusgde may feel pain and compassion and react to the victim’s or other’s involved
experiences but she will not be permitted to nor will she use that as a reason to change
it. As per law doctrine.
- The avoidance of emotions affects and experiential understanding reflects an
impoverished view of reason and understanding
- One that focuses on cognition in a reductive manner
- Empathy much like common sense is subjective to bias and stereotype.
- The ECtHR employed the language of emotions and other forms of psychological
conditions within their frameworks
- The suffering of a family member has a dimension and character distinct from emotional
distress inevitably stemming from the situation too according to the ECtHR
