The idea that all losses, even loss of a loved one can, in principle, be compensated has its beginnings in the lex talionis. The notion that everything has its price, that everything can be made right, resurfaces in many disparate legal traditions from the blood feuds of medieval Iceland to the twentieth century craze for “law and economics.” Yet the absoluteness of grief; its necessary insistence on the immutability of loss, gives us pause about this idea. Grief is uncompensated and uncompensatable, a tragic remainder that defies the possibility of perfectly reciprocal justice. The very idea that grief might be amenable to compensation calls into question grief’s authenticity. Grief is not grief if capable of consolation by other advantages. To take comfort from compensation would be a betrayal of the beloved.
Paradoxically, however, we are unsatisfied with legal remedies that ignore grief. The quip “it’s cheaper to kill than to maim” points to the callousness of a law that does not value grief as a loss worth compensating. In this paper I will examine the nature of grief and ask why grief (as distinct, for example, from anger) is the emotion most resistant to compensation. Further, I will examine a number of legal attempts to place a monetary value on grief and to bring grief under the umbrella of legally compensable harms. Ultimately, I argue that the profoundly private nature of grief and the corresponding barriers to empathy with grief go at least some way to explaining why grief seems ever to remain outside the realm of compensation.
Annalise Acorn is Professor in the Faculty of Law at the University of Alberta, Canada. Her main research interest is the emotions of conflict and justice. She has published numerous articles in journals such as The Oxford Journal of Legal Studies, Osgoode Hall Law Journal, Valparaiso Law Review, and the UCLA Women’s Law Journal. 1998–1999 she was President of the Canadian Association of Law Teachers. In the same year she was a McCalla Research Professor. In 2000 Annalise Acorn was Visiting Professor at the University of Michigan Law School. She is co-editor of Passions in Context. Recent publications include: “Besieged by Beneficence: Love Justice and the Autonomous Self”, in: Saskatchewan Law Review (2000); Compulsory Compassion: A Critique of Restorative Justice (2004); “Surviving the Battered Reader’s Syndrome or a Critique of Linda Mills’ Insult to Injury”, in: UCLA Women’s Law Journal (2005) and “Eine verbogene Meßlatte? Über Mitleid in der Rechtsprechung” in: Berliner Debatte Initial (2006).