Narrative Epistemology in Jurisprudence and Elective Affinities in Productions of Responsibility for Persons in Pain

• In Event: Personhood, Law, and Relationality Amidst the New Biosciences II

Abstract

Scientific theories describe pain as an emergent phenomenon arising from complex systems. However, if legal praxis and jurisprudence deal with causation through methodologies more narrative than scientific, could such an epistemology condition the way that "facts" regarding responsibility for pain are established in Australian society? Specifically, could the processes philosopher Paul Ricoeur describes in relation to narrative - of "ascriptions" of causal-moral responsibility to characters - be central to court rulings on liability for pain, suffering and personal injury? If so, could these ascriptions rely upon, and therefore legitimise, causal models of pain that are scientifically outdated and liable to being strategically deployed to create reductive attributions of personal culpability or innocence, that serve powerful economic interests?

To answer these questions, I will analyse the relationship of narrative to jurisprudence by drawing upon Ricoeur's narrative theory, as well as models of causation in science, narrative, and law. Secondly, I will investigate relationships between economic, political, legal, scientific and medical fields, by analysing the regulatory framework for Workers Compensation in the Australian State of Victoria. Specifically, by drawing upon various Acts which govern Workers' Compensation, Ombudsmen's Reports, interview material with lawyers and legal scholars, and an analysis of selected Case Law relating to personal injury torts. Finally, I will investigate how Australian courts have responded to this regulatory framework and to scientific and medical theories of pain, in making judgments regarding the reality, legitimacy, and cause of pain, particularly in its relationship to the suffering person, their injury, and their subsequent earning capacity.

Author

• Seamus Barker, University of Sydney