If you are like me, you aren’t sure what “heuristic” means. According to multiple sources, it is an experience-based technique for problem solving. In her new article,Pain as Fact and Heuristic: How Pain Neuroimaging Illuminates Moral Dimensions of Law, Professor Amanda C. Pustilnik argues against a simple understanding of physical pain as a justification for legal intervention. She suggests that consideration of pain as a basis of legislation is a reflection of our empathy for the subject of pain.
Professor Pustilnik “proposes a novel theory, the theory of “embodied morality,” to explain why statements about physical pain in law often serve a heuristic function. In describing the relationship between pain and empathy, the Article shows how moral conceptions of rights and duties are necessarily informed by human physicality and constrained by the limits of empathic identification. Pain measurement thus serves as the archetypal example of why it is necessary to understand embodied morality within the law to properly understand if, when, and how to adapt the findings of brain imaging to bodies of legal doctrine.”