COMING to GRIEF

The calibration of misery






I OPENED THE MAIL A FEW DAYS AGO TO FIND A LETTER ------ from a friend, and with it an article from the Journal of Humanistic Psy-chology, which he commended to my attention. The article, titled “Pane-tics,” was written by R. G. H . Siu, who is a chemist, a former director of the Justice Department’s National Institute of Law Enforcement and Criminal Justice, and the author of several books, including Microbial Decomposition of Cellulose. No sooner had I glanced at the article’s abstract than a legal term I had recently heard— “hedonic loss”—came forcefully to mind, along with the very realization that hedonic loss might soon have some competition.


I’ll come back to panetics in a moment. First: are you familiar with hedonic loss? It is a concept that has by now spread from the federal court system to the state courts, and from lawsuits involving wrongful death to those involving personal injury. Briefly, in wrongful-death and personal injury cases the plaintiff used to be able to seek damages from a defendant for loss of earnings, for the cost of medical care, and for pain and suffering, this last category being widely held to encompass such intangibles as “loss of companionship” and “loss of enjoyment.” Over the years, however, intangibles have loomed ever larger in the eyes of lawyers and their juries, and in a 1984 case that was heard in Illinois, Sherrod v. Berry, a federal court agreed for the first time that a life’s forgone pleasures—the pleasure of residing among one’s family, of singing in a choir, of gardening or playing tennis, of a first kiss or a summer day—constituted a whole new category for which damages could be awarded, over and above any award for pain and suffering. In coming to this conclusion the court accepted the argument of Stan v. Smith, an economist from Chicago who testified in the case, that hedonic loss (his term, from the old Greek hedone, meaning “pleasure”) was a legitimate consideration. It also accepted as valid the complex economic models that Smith employed to estimate the total monetary value of the hedonic loss involved in Skerrod. Smith’s economic models needn’t be explained here; suffice it to say that they derive from a calculation of the value of a human life, which in turn is based on a cold-blooded, Chicago school analysis of what Americans, as individuals and through governments, pay to preserve and protect human life. For the purposes of computing hedonic loss, Stan Smith estimated the value of the life of a typical thirty-year-old at between $500,000 and $3.5 million. (His estimates are always presented to juries as a range —what he calls a “zone of fairness.”) With sums like these at stake, it is not surprising to find lawyers for the plaintiffs in hedonic-loss cases speaking most eloquently to juries of life’s unfolding pleasures, its vast, ineffable bounty: a Pacific sunset beneath an amber sky, a soft breeze caressing a stand of pines . . . the trill of a mountain stream cascading over polished stones . . . the warm unknowingness of a newborn’s smile.


I don’t have any legal training, and I don’t know whether, in terms of justice or efficiency, the concept of hedonic loss makes sense . It has certainly provoked so much comment and much opposition. What seems most remarkable about the concept to me, though, is its implicit assumption that the future is to be a friendly time—a period of net pleasure —rather than an indifferent time, a somewhat unfriendly time, or a disaster. It is odd to see lawyers, of all the people, making this assumption, given the raw material from which they have to fashion a livelihood.


I remember wondering, when I first read about hedonic loss, if some legal strategist would soon devise a counter to it, based on the notion that into every life a little rain must fall —might devise, that is, a parallel but antithetical argument, one that might go by the name of “pathetic loss” (my term, from the Greek pathos, meaning “pain”). The aim here would be for a defense attorney to offset a valid n allegation of hedonic loss by showing that a plaintiff, though incontestably the victim of some tragic endeavor or procedure, had as a result of it been spared other kinds of likely and terrible unpleasantness. We have a brush with this very concept every time we say that it’s a blessing so-and-so isn’t alive to witness such-and-such. There’s a hitch, though: Would it ever really be possible to assemble data on the average American’s level of suffering over a lifetime—data that could match, in some sense, those laid before juries by proponents of hedonic loss?


E NTER R. G. H. SIU - - - - whose article is subtitled “The Study of the In-

fliction of Suffering.” Siu’s article is a stirring manifesto that, after not- ing “the unceasing mutual inflictions of suffering by practically everyone,” calls for the creation of a new academic discipline, panetics, devoted exclusively to suffering—its causes, nature, and quantification. The name he proposes for this discipline comes from the word in Pali (an Asian language spoken by the Buddha) for the verb “to inflict.”



A central feature of Siu’s program is the establishment of something called the dukkha (from the Pali word for “suffering”) as the basic unit for measuring the level of disagreeability of all things. To get the idea, Siu writes, first apportion all degrees of suffering into a nine-tier intensity scale, ranging from level 1 (“barely noticeable”) through level 5 (“interfering with daily life”) and on to level 9 (“unbearable, wanting to die”). A dukkha is the amount of suffering experienced in one full day by one person whose suffering is at intensity level 1. Level of intensity multiplied by duration multiplied by the number of individuals involved yields your aggregate amounts of suffering. A million dukkhas is called a megadukkha. You can guess a billion dukkhas is a gigadukkha. Siu makes no extravagant claims for this conceptual child of his, nor does he sell it short. “The paneticist,” he writes, “has good reasons to be dissatisfied with the dukkha as he eyes the rigidly fixed and precisely calibrated calorie of the physicist. But he should gain much comfort as he beholds the wildly varying monetary units of the economist grappling with triple-digit inflation.”


Stan Smith, in arriving at his estimates of the value of a human life, used data on spending from a variety of government and private sources. Siu likewise has used data from government and private sources—for example, on unemployment, crime, sickness, poverty, and pollution—to come up with a figure for the total amount of suffering in America in 1979: about fifty gigadukkhas, or seven percent (7%) of the theoretical maximum that could have been inflicted in that year. That is enough to provide every man, woman, and child in the country with suffering at intensity level 5 during the waking hours of about sixty days a year—about right, in my own experience.


The relevance to American jurisprudence of Siu’s research efforts will of course be obvious, and their utility should become only more apparent as a result of much more “calibrations and improvements to come.” I see no reason, however, why the dukkha must be restricted to the courtroom, the classroom, and the Department of Health and Human Services. There exist many aspects of society whose failings we continue to evaluate by means that seem unnecessarily crude and subjective: movies , plays, and television shows, for instance; books and records ; restaurants, politics, fashion, fads, language, technology. Surely the dukkha could serve us well in all these arenas, its range capable of encompassing the painful personal and national impact of everything from the most trifling dental surgery all the way up to voicemail systems or the return of Linda Ellerbee to network broadcasting. Why mince words? If something’s a demigigadukkha, I want to know about it.


Cullen Murphy



 SOURCE:

The ATLANTIC Monthly

September 1991. (Pgs. 20-22)



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