The Juridical Unconscious

Trials and Traumas in the Twentieth Century

Shoshana Felman

• Publisher: Harvard University Press
• Year: 2002
• Print ISBN: 9780674009516, 9780674009318
• eBook ISBN: 9780674971301
• Topic: Law
• Subtopic: Jurisprudence
• Index: Law

Death, wrote Walter Benjamin, lends storytellers all their authority. How do trials, in turn, borrow their authority from death? This book offers a groundbreaking account of the surprising interaction between trauma and justice.

Moving from texts by Arendt, Benjamin, Freud, Zola, and Tolstoy to the Dreyfus and Nuremberg trials, as well as the trials of O. J. Simpson and Adolf Eichmann, Shoshana Felman argues that the adjudication of collective traumas in the twentieth century transformed both culture and law. This transformation took place through legal cases that put history itself on trial, and that provided a stage for the expression of the persecuted--the historically "expressionless."

Examining legal events that tried to repair the crimes and injuries of history, Felman reveals the "juridical unconscious" of trials and brilliantly shows how this juridical unconscious is bound up with the logic of the trauma that a trial attempts to articulate and contain but so often reenacts and repeats. Her book gives the drama of the law a new jurisprudential dimension and reveals the relation between law and literature in a new light.

1
The Storyteller’s Silence: Walter Benjamin’s Dilemma of Justice

One can ask oneself whether the relationship of the storyteller to his material, human life, is not itself a craftsman’s relationship . . . exemplified by the proverb, if one thinks of it as an ideogram of a story.

—Water Benjamin, “The Storyteller”

Death is the sanction of everything that the storyteller has to tell. He has borrowed his authority from death.

—Walter Benjamin, “The Storyteller”

No justice . . . seems possible without the principle of some responsibility, beyond all living present, before the ghosts of those who are not yet born or who are already dead, be they victims of wars, political or other kinds of violence, nationalist, racist, colonialist, sexist or other kinds of extermination.

—Jacques Derrida, Specters of Marx

Why start a book on trials with the story of the life and of the thought of Walter Benjamin? The story, I would argue, is a parable for the twentieth century, a parable that a sophisticated literary author could perhaps entitle “Before the Law”: before the law both in the temporal and in the spatial sense.¹

“Kafka does not use the word ‘justice,’” writes Walter Benjamin, “yet it is justice which is the point of departure of his critique.”² In the same way, one could say: Benjamin seldom uses the word “justice,” yet it is justice that is the point of departure for his critique. The story of the life and of the work of Walter Benjamin (the only chapter in this book that is not about a trial) is, I would propose, a story about the relation between silence and justice. It is a story that achieves the status of what Benjamin will call “a proverb”: “A proverb, one might say, is a ruin which stands on the site of an old story and in which a moral twines about a happening like ivy around a wall.”³

Part One: Benjamin’s Justice

— I —

Two stories here will therefore intersect and, through their intersection, shed light on each other: the story of the life of Walter Benjamin and the story of his writing.

Although Benjamin does not write about trials, he does write about history as the arena of a constant struggle between justice and injustice. He does write about the relation between history and justice. In the wake of Benjamin, this chapter is dedicated to an exploration and (after Benjamin) an attempt at conceptualization of this central relation, which, as I will later show, similarly governs trials. The chapters that follow illustrate concretely how the questions Benjamin identified as central (as constitutive within the relation between history and justice) nowadays emerge as haunting questions at the center of contemporary trials.

History, Justice, and the Law

Trials have always been contextualized in—and affected by—a general relation between history and justice. But they have not always been judicially concerned with this relationship. Until the middle of the twentieth century, a radical division between history and justice was in principle maintained. The law perceived itself either as ahistorical or as expressing a specific stage in society’s historical development. But law and history were separate. The courts sometimes acknowledged they were part of history, but they did not judge history as such. This state of affairs has changed since the constitution of the Nuremberg tribunal, which (through the trial of the Nazi leaders as representatives of the historical regime and the historical phenomenon of Nazism) for the first time called history itself into a court of justice.⁴

In the wake of Nuremberg, a displacement has occurred in the relationship between history and trials.⁵ Not only has it become thinkable to put history on trial, it has become judicially necessary to do so. Nuremberg did not intend, but has in fact produced, this conceptual revolution that implicitly affects all later trials, and not only the tradition of war crimes and of international criminal law. In the second half of the twentieth century, it has become part of the function of trials to repair judicially not only private but also collective historical injustices.⁶

History on Trial

Thus, the Eichmann trial puts on trial the whole history of the Nazi persecution and genocide of the European Jews.⁷ Decades later, the defense in the O. J. Simpson trial puts on trial the whole history of lynching and of the persecution of American blacks, while the prosecution puts concurrently on trial the historical injustices inflicted with impunity on battered women and on murdered wives. This book explores these two paradigmatic legal examples among the many other trials (civil as well as criminal) that judge history as such: the Brown v. Board of Education case in the United States; the Irving v. Lipstadt British libel case; the French Klaus Barbie trial; the trials of the officers and torturers of the “Dirty War” in Argentina; the Turkish trial of those accused of having committed genocide against the Armenians in 1921; the international ad hoc war crimes tribunals for Rwanda and for the former Yugoslavia. In this last case of Bosnia and the former Yugoslavia, the crime of history consists (again) both in human murder and in gendered murder, both in the crime of genocide itself and in the companion outrage targeted at women. What the war crimes tribunal in The Hague for the first time puts on trial as a crime against humanity is not just the ethnic crime (the genocidal history) of massacres and ethnic cleansing but also the sexual crime (the sexualized genocidal history) of systematic and collective rape.

The significance of all these legal cases that put history on trial—a significance this book proposes to extract and to explore—is not only that they are revolutionary in the sense that what they judge is both “the private” and “the public,” but also, even more significantly, that in them the court provides a stage for the expression of the persecuted. The court allows (what Benjamin called) “the tradition of the oppressed”⁸ to articulate its claim to justice in the name of a judgment—of an explicit or implicit prosecution—of history itself. The court helps in the coming to expression of what historically has been “expressionless.”

In this chapter I will analyze how, in anticipation of developments in law and in advance of history, Benjamin gives voice precisely to this claim to justice in the name of the tradition of the oppressed. I argue that Benjamin is the philosopher and the conceptual precursor, the herald of this claim to justice. His theories are allegorical of the necessity of recovering the silence of the oppressed in the name of a judgment of history itself. In this he is inscribed prophetically in relation to contemporary trials. Benjamin’s reflections on history predict, or at the very least anticipate, what will actually happen in the realm of the law in the second half of the twentieth century.

The Expressionless

The court, I claimed, gives a stage to “the tradition of the oppressed,” in helping the “expressionless” of that tradition (the silence of the persecuted, the unspeakability of the trauma of oppression) to come into expression.

Walter Benjamin originally coined the term expressionless (das Ausdruckslose) as an innovative literary concept,⁹ a concept that essentially links literature and art to the (mute yet powerful) communication of what cannot be said in words¹⁰ but what makes art belong in “the true world,” what “shatters” art, says Benjamin, into “the torso of a symbol,” into a “fragment” of the real world (Benjamin, “GEA,” 340). The expressionless in literature (and, I will later show, in law) is thus an utterance that signifies although and because it has no possibility of statement.

But in linking literature through the expressionless not only to a stillness and a speechlessness but also to a moment that connotes death, trauma, and petrification—“the moment in which life is petrified, as though spellbound in a single moment” (“GEA,” 340)—Benjamin created, I will argue, a groundbreaking concept that can be applied as well to political phenomena, and that in particular sheds new light on twentieth-century critiques of history¹¹ and on contemporary historical developments, including late legal developments.¹²

I use the word expressionless throughout this book in Benjamin’s pathbreaking sense,¹³ but also in the sense of Levinas¹⁴ (whose added resonance is here included in the Benjaminian sense):¹⁵ expressionless (das Ausdruckslose) are those whom violence has deprived of expression; those who, on the one hand, have been historically reduced to silence, and who, on the other hand, have been historically made faceless, deprived of their human face—deprived, that is, not only of a language and a voice but even of the mute expression always present in a living human face.¹⁶ Those whom violence has paralyzed, effaced, or deadened, those whom violence has treated in their lives as though they were already dead, those who have been made (in life) without expression, without a voice and without a face have become—much like the dead—historically (and philosophically) expressionless (das Ausdruckslose).

This book proposes to explore precisely the status of the expressionless in court, and the legal modes by which the expressionless of history finds an expression in trials that judge history itself and in legal proceedings that deal with (and try to repair) the crimes of history.

In the cases that this book discusses and in others like them, the court either intentionally gives a stage to the expressionless of history or unintentionally and unconsciously enacts that expressionlessness and is forced to witness it and to encounter it: legally to deal with it. Through the proceedings, the expressionless at least partially recovers the living humanity and the expression of a human face. In the courtroom (to put one against the other two key Benjaminian concepts), the expressionless turns into storytelling.

I argue that Benjamin claims in advance this type of exercise of justice and this court that judges history.

He grasps ahead of others the significance of the relationship between history (oppression, trauma, violence) and silence. He sees ahead of others the necessity for justice to repair this silence by dragging history itself to court.

Benjamin sees in advance, I argue (ahead of what will happen in the second half of the twentieth century) at once the urgent need for the repair of collective historical injustices, and the abhorrent acts of “barbarism”—the barbaric crimes—that are constitutive of history as such.¹⁷ He analyzes in advance at once the reasons for and the imperative historical necessity of putting history as such on trial, of bringing history as such—and most of all, contemporary history—into a court of justice.

— II —

“Hope in the Past,”or Justice for the Dead

History in Benjamin’s reflections is related not just to the structure of a trial but, more radically, to “Judgment Day”: the day on which historical injustice will be cancelled out precisely through the act of judgment; the day on which justice and memory will coincide (perhaps the day on which the court will be redeemed from its inherent political forgetfulness). Only on Judgment Day will the meaning of history (a meaning that cannot be mastered or possessed by “man or men”)¹⁸ emerge from the political unconscious¹⁹ and come to light. Only on Judgment Day will the past come into full possession of its meaning: a meaning in which even the expressionless of history (the silence of the victims, the muteness of the traumatized) will come into historical expression. “To be sure, only a redeemed mankind receives the fullness of its past—which is to say, only for a redeemed mankind has its past become [legally] citable in all its moments. Each moment it has lived becomes a citation à l’ordre du jour—and that day is Judgment Day” (Benjamin, “Theses,” 254). The invocation of a Judgment Day to which history itself is destined is often read as testimony to Benjamin’s involvement with—or act of faith in—a Messianic eschatology. I read it secularly as the (revolutionary, legal) day that will put history itself on trial, the day in which history will have to take stock of its own flagrant injustices.

Judgment Day implies a necessary reference of history and of historical justice to a reawakening of the dead;²⁰ and justice is, indeed, for Benjamin, above all justice (and, quite paradoxically, life) for the dead. Life for the dead resides in a remembrance (by the living) of their story; justice for the dead resides in a remembrance (by the living) of the injustice and the outrage done to them. History is thus, above and beyond official narratives, a haunting claim the dead have on the living, whose responsibility it is not only to remember but to protect the dead from being misappropriated: “Only that historian will have the gift of fanning the spark of hope in the past who is firmly convinced that even the dead will not be safe from the enemy if he wins” (“Theses,” 255).

Critique of Violence

What the dead will one day put on trial is the violence of history: the violence of “the triumphal procession in which the present rulers step over those who are lying prostrate” (“Theses,” 256); the violence by which the rulers institute their own rule (their own violence) as law: usurpers, they hold themselves to be proprietors of justice. “Walter Benjamin noted,” writes Mariana Varverde, “that every philosophical reflection on justice can be recuperated by questionable political projects, as part of the bourgeois appropriation of all manner of ‘cultural treasures’ . . . The appropriation of philosophies of justice by the ruling classes of each generation was the greatest concern of Benjamin’s thoughts on history.”²¹ Only the dead can judge the sheer violence of the historical appropriation of philosophies of justice: only from the perspective of the dead can this violence disguised as justice and cloaked as law be seen in its nakedness and put on trial.

The law—and the court itself—are therefore not entirely (and not by definition) on the side of justice; they partake of the violence of history. The law must thus stand trial along with history itself. Like history, the law has an inherent relationship to death. It is precisely this constit...

Table of contents

• Cover
• Title
• Copyright
• Contents
• Acknowledgments
• Introduction
• 1 The Storyteller’s Silence: Walter Benjamin’s Dilemma of Justice
• 2 Forms of Judicial Blindness, or the Evidence of What Cannot Be Seen: Traumatic Narratives and Legal Repetitions in the O. J. Simpson Case and in Tolstoy’s The Kreutzer Sonata
• 3 Theaters of Justice: Arendt in Jerusalem, the Eichmann Trial, and the Redefinition of Legal Meaning in the Wake of the Holocaust
• 4 A Ghost in the House of Justice: Death and the Language of the Law
• Abbreviations
• Notes
• Index