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.