Weitin, Thomas. "Testimony and the Rhetoric of Persuasion." Transl. Kirk Allen Wetters. MLN 119.3 (2004). 525-540.

Thomas Weitin
Humboldt-Universität zu Berlin

1. Witnessing and the Force of Law

The concept of the witness is one of those legal terms that have a supposedly secure and culturally shaped pre-comprehension within everyday language. We know, for example, that anyone who witnesses anything and testifies to it (thereby fulfilling the function of witness) also takes on the obligation to tell the truth. The truth and nothing but the truth—The formula of this oath, meant to enforce the demand of truth, is familiar from courtroom-dramas. It is not necessary to be a jurist to know that deliberately making false statements under oath is punishable. And even non-religious people can make sense of the eighth Commandment: Thou shalt not bear false witness against thy neighbor.

If we allow ourselves to be detained for a moment, however, by this example and read the biblical account of Moses' testimony more carefully, then the apparently simple situation quickly becomes more complicated. Divine law is announced to Moses (so the story goes) for the people of Israel; they are forbidden under penalty of death to climb Mount Sinai and view the Lord descending amidst thunder and lightning. God speaks to Moses alone: "And the Lord spoke to Moses, 'Lo, I am coming to you in a thick cloud, that the people will hear when I speak with you, and may also believe you for ever."1 Moses is God's direct witness, but his credibility as law-giver is founded by the [End Page 525] community's witnessing, which can only be indirect. The community, kept at a distance from the mountain, attests to the powerful apparition of the annunciation but not to its content. They attest precisely—to use Derrida's words—to the mystical foundation of authority: "Now when all the people perceived the thunderings and the lightnings and the sound of the trumpet and the mountain smoking, the people were afraid and trembled; and they stood afar off, and said to Moses, 'You speak to us, and we will hear; but let not God speak to us, lest we die'."2 Though the passage is in need of a complete theological explication, the following may at least be observed: Those who are named as witnesses are witnesses by hearsay, or better, witnesses of hearsay. They cannot attest to what was announced to Moses but only that it was announced—that he (unlike them) was privy to the force of law-making power. From their common distance to Moses' proximity, a unanimity of belief in the law emerges, and in the one who serves as its proxy. "The entire people" become witnesses to a powerful scene of persuasion, which introduces as its consequence the very possibility that the eighth Commandment—enjoining to truthful testimony—can itself be established and followed. The codification of witnessing in the sense of its truthfulness is thus accompanied and preceded by the act of persuasion.

2. Derrida's Theory of Witnessing

The critical and deconstructive approach to questions of law has been primarily initiated and shaped by Derrida's The Force of Law, a text in which he reads Benjamin's Zur Kritik der Gewalt. This approach considers ethical questions first of all, such as the question of justice—and thus operates under the presupposition that the deconstruction of law can prepare the way for an ethics. My own considerations on witnessing to follow may seem much more modest by comparison: Like the deconstructive approaches, I also begin with Derrida for my considerations, but I will additionally reference Demeure, a text in which Derrida concerns himself, in accordance with the original subtitle: with "fiction and testimony". The main thesis of this text is the claim of an indivisible connection between the legal institution of witnessing and certain structures described by Derrida [End Page 526] as 'literary' or 'fictional.' We will take the opportunity here to recapit-ulate his thesis and critically test it, in order to afterwards further consider the historical forms of testimony in law and literature.

Derrida's text can be divided into two parts. The first section deconstructs common and prevalent understandings of testimony shaped by European legal tradition. On this basis, the second section performs a reading of Blanchot's autobiographical narrative, L'instant de ma mort. My analysis will deal exclusively with Derrida's first section, that is his general—and generalizing—argument on the law. Here Derrida constantly and conspicuously returns to the European legal tradition going back as far as Roman law—without ever saying more about this tradition except that it presupposes the division between fiction and literature on the one hand and the institution of law on the other. The legal separation of the spheres of law and literature is countered by the claim of his subtitle: "[T]here is no testimony that does not structurally imply in itself the possibility of fiction, simulacra, dissimulation, lie, and perjury—that is to say, the possibility of literature [...]."3

This gesture towards 'structural implication' indicates that there is more at stake than the banal possibility of a falsified testimony. No judge would find it acceptable, if a witness were to take it upon himself to say: 'My statement has the status of a literary fiction.' Nevertheless Derrida maintains the necessary fictionality and literarity of witnessing in the sense of an uncircumventable aporia: That which the jurist must exclude from the institution of witnessing, according to this thesis, is the actual condition of its possibility. If 'the literary' were banished from testimony, it would lose its primary and proper function of verification. "In order to remain testimony, it must therefore allow itself to be haunted."4 Unfortunately the realization of the argument behind this 'haunting' is obstructed by some conceptual unclarity. Fiction, simulacrum, lie, perjury, literature—such disparate legal and literary concepts are set up as a series representing what is forbidden in testimony; and yet, were these terms actually excluded, it would result in the end of the institution of testimony.

For the sake of understanding the aporia claimed by Derrida, it is useful to reconstruct what is most apparent in his proceedings: He says 'literature' but he means discursivity, language, 'linguicity' [End Page 527] (Sprachlichkeit), or, even more generally, representation. 'To testify' means—and necessarily implies—bringing something into linguistic representation, making it discursive, and thereby addressing one's self to another and relinquishing one's self to what is uttered, expressed or exteriorized (sich entäußern). That to which the witness attests is his secret, a secret which must however be made accessible to public knowledge. The witness, bound to tell the truth, must keep this secret with himself and at the same time give it up. The witness is irreplaceable because only he or she has seen or heard. He or she must appear in the flesh before the court and speak about what has happened. His or her duty to tell the truth rests however upon the presumption that anyone in the same situation would have seen or heard the same thing. The witness is therefore both a singular individual and a general subject of perception at the same time, irreplaceable yet reproducible. The statement of the witness is always valid for a singular instant, an instant which, according to the requirement of truth, must be repeated and thereby robbed of its singularity. Derrida calls this the "quasi-technical reproducibility"5 that is proper to witnessing; he thereby terminologically approaches the media-theory of Walter Benjamin, who has illuminated the loss of the auratic original presence of the work of art in its mechanical reproduction. Benjamin writes:

Die Echtheit einer Sache ist der Inbegriff alles von Ursprung her an ihr Tradierbaren, von ihrer materiellen Dauer bis zu ihrer geschichtlichen Zeugenschaft. Da die letztere auf der ersteren fundiert ist, so gerät in der Reproduktion, wo die erstere sich dem Menschen entzogen hat, auch die letztere: die geschichtliche Zeugenschaft der Sache ins Wanken.6

According to Derrida, the practice of law reacts to the threat that mediums of reproduction pose to testimony by removing all technical mediation from the hearing of the witness. "The technical reproducibility is excluded from testimony, which always calls for the presence of the live voice in the first person."7 This claim might be countered with the fact that by far the majority of valid criminal trial-regulations today explicitly permit the audio-visual inscription of witnesses' [End Page 528] statements (in certain cases). Admittedly, however, this point does not create any difficulty for Derrida's argument. Such exceptions can be understood as just another example of the same figure of thought: the necessary exclusion of that which cannot be excluded. Derrida simply states: "In the law, testimonial tends [...] to exclude all technical agency," and he adds: "without being able to succeed in this altogether".8

The recent discussion in Germany about video evidence would prove this point, but it is also not decisive here for Derrida. In any case, the philosopher grants no attention to concrete legal debates. His theory of witnessing only has recourse to 'the' law in order to illustrate his thesis about the fundamentally aporetic status of the witness and his testimony. Derrida treats the law, its practice, and the entire European legal tradition, as a witness for his theoretical thought—without interrogating this witness in any detail. He founds his evidentiary proceedings, as it were, upon a mute witness about whom it is presumed that he is able, in a way that is self-evident and comprehensible to everyone, to stand in for that of which the reader is to be persuaded. The thesis, that witnessing only functions if it negates the condition of its own possibility—by making the secret public, the instant repeatable, the irreplaceable replaceable, and so on—thus risks achieving such a degree of generality as to cause the actual object to fade from sight. The exteriorization in all expression (Entäußerung) is of course valid for the witness, but it is also valid even for a speaker whose speech-act has not been conclusively understood as a testimony. It is valid for the linguistic subject as such, and it is thus also clear that the constitution of this subject must play a central part in any consideration of witnessing. If however it is a question of the European legal tradition of testimony, then it seems appropriate to situate this problematic of the subject within the context of legal history.

Within European and German legal history, which I will examine more closely in the next section, an era of witnessing begins at the close of the 18th Century. This can be asserted to the extent that the subjectivization of epistemology, which began as a consequence of the Enlightenment, had a decisive influence upon literary as well as legal discourses of truth. In the former instance, sentimental novels and autobiographies were generated in response to the advancing [End Page 529] rationalization of society; these works rhetorically placed the authenticity of their own testimony at the center. The latter, on the other hand, conducted an often heated debate over the form of evidence known as 'the witness.' Testimony thereby turned into the signature of the epoch, an epoch in which the access to truth was to be newly secured.

3. The Discourse of Testimony in the 19th Century

Up to the 19th Century and beyond, a highly formalized evidentiary law was in effect in the realm of Germanic law; this codification extended as far back as the 'Peinliche Gerichtsordnung,' the Constitutio Criminalis Carolina declared by Emperor Karl V in 1532. The basis of such a formal evidentiary law was the desire to eliminate subjectivity in the establishment of facts in criminal proceedings, not only on the side of the witness but also on the part of the sentencing judge. So-called 'witness-catalogs' established a witness' reliability in advance, according to his social position, his religion and other conditions of his life; thus the evidentiary value of his statement was determined a priori. Only the statements of two witnesses, determined impartial and of the highest level of reliability, counted as sufficient to prove something as a fact. And, on the other hand, this regulation left no space for the subjective evaluation of the actual circumstances of the case and reduced the judge's activity to the tallying of responses of the correspondingly qualified witnesses.9 The formal evaluation of evidence followed a secret hearing of the witnesses in the absence of the parties of the case; this hearing thus occurred within the framework of a procedure that was otherwise completely made up of written evidence.10

In practice the demands of the formal evidentiary system proved too strict and alienated from reality. Whenever a confession or two irreproachable witnesses were lacking, the accused had to be declared immune from punishment. This problem had been mitigated [End Page 530] to the extent that what was not sufficient for a judgment was still enough to qualify for torture—so as to extract the confession this way. The abolition of torture in Germany (between 1740 and 1831) consequently led to a dramatic crisis of the entire evidentiary law. The 'twins' of torture and confession (as Foucault has called them11 ) were thereby irrevocably separated and the gap in the formal system could no longer be closed. The only remaining option was the inclusion of deficient evidences (such as circumstantial evidence and biased witnesses) in the formula for the proof of sufficient evidence—a practice that was often criticized (according to the words of Julius Glaser) as a mere "Künstelei"12 .

Objections were also raised against the practice of secretly hearing witnesses and against the entirely textual basis of the proceedings. All of this was set against the background of a bourgeois society in the process of self-constitution. The objections aimed to make things more public and transparent, and it was concluded that abstract and predetermined rules were not appropriate to the production of truth, and thus that the orality and immediacy of the trial represent a conditio sine qua non for the assessment of the reliability of witness-statements. Correspondingly it is thus stated in § 260 of the 1877 Order of Criminal Procedure for the German Empire: "Ueber das Ergebniß der Beweisaufnahme entscheidet das Gericht nach seiner freien, aus dem Inbegriffe der Verhandlung geschöpften Ueberzeugung."13

Otherwise than in the short sketch just presented, in reality the transition to the free evaluation of the evidence—to the subjectivization of the evidentiary proceedings—was by no means seamless or without difficulties. The controversial debates of the 19th Century make it clear that no simple conception of the practice of testifying is to be found within the legal tradition; the conflictual potentials of witnessing seem to require scholarly scrutiny in order to be revealed at all. (To this extent, the historicization of Derrida's presentation of the problem of witnessing therefore means an attempt to be just to the law.) If a subjectivization of the evidentiary proceedings can be [End Page 531] observed—this is what constitutes the debates on witnessing in the more narrow sense14 —and if this transformation is considered even more carefully, then it can be shown, for example, that it is not merely 'the' public sphere, to which the witness addresses him- or herself with testimony, or which requires the giving up (Entäußerung) of what is secret, but it is instead a public sphere that is itself in transformation within a particular historical context. It is a public sphere in which the status and value of witnesses are being transformed in the direction of a system that is based on a public conception of law.

If the secret hearing of witnesses remained indebted to the analogy of the confessional, in the public trial a situation comes into being that is analogous to the observed observer in Luhmann's sense. This situation supposes that the same complex conditions exist on both sides of the equation, on the part of the judge as well as that of the witness. The question of the perceiving subject of knowledge and its constitution is now the object of the greatest attention. Julius Glaser, the jurist mentioned once already, has indicated that modern law-making, in absence of a classification that establishes the value of testimonies in advance, must take other measures to secure the evidentiary force of testimony. Along with the institution of the oath and the punishment of false testimony, other such measures include the establishment of operative criteria for the evaluation of the linguistic depictions provided by witnesses. As well as the general exclusion of hearsay, Glaser also notes that a convincing statement must be "zusammenhängend, sicher und bestimmt"15 . Decisive for the evaluation of the witness is his manner, his way of speaking. "Der wirklich unbeeinflußte Zeuge wird sich auch natürlich benehmen [...]."16 Authenticity thus comes before everything else in the assessment of the reliability of witnesses. The witness convinces the pronouncing judge only if he or she acts 'naturally'. Only then will the witness and what he or she says have a convincing effect.

The behavior of the witness describes his or her performance in reporting observations. This performance in turn, in addition to the reported observations themselves, serves as the basis for the sentence. The criterion of authenticity is also noteworthy insofar as it sets the stage for the process by which two streams of knowledge-production [End Page 532] can merge. This setup can be made historically plausible if consideration is given to the fact that in the course of the transformation of penal law according to the disciplines of science, legal scholars with a philosophical education began to lead the discussion on the subjectivization of the legal evidentiary proceedings. This primarily occurred according to Kant's Copernican turn in epistemology. From the strictly philosophical standpoint, however, it is problematic to presuppose authentic behavior as constitutive for the judicial conviction. In the preface to his anthropological texts on the human faculty of understanding, Kant speaks of a fundamental difficulty of all anthropology—a difficulty that is, as he says, grounded in human nature itself. To trace the nature of this human nature seems difficult to Kant, because the human simply cannot be observed naturally. "Der Mensch, der es bemerkt, daß man ihn beobachtet und zu erforschen sucht, wird entweder verlegen (geniert) erscheinen, und da kann er sich nicht zeigen, wie er ist; oder er verstellt sich, und da will er nicht gekannt sein, wie er ist."17 From this vantage-point, the presumption of a witness who comports himself naturally under the eyes of an inquiring judge now seems to be a completely unfulfillable condition. It is nevertheless a necessary precondition, in order to differentiate partial and impartial witnesses. Thus the aporetic structure (in the sense of an impossible condition of possibility) comes to light, the structure that Derrida proposes for testimony.

With the free evaluation of evidence—its arena in the immediacy of the spoken trial—the organizing concept of 'truth' undergoes a proceduralization. Because 'truth' can no longer be understood as existentially given, it becomes translated into the new organizing concept of conviction: The conviction of the court either solidifies itself into certainty in the course of the trial—or embodies itself in the condition of doubt. It is in this sense that the jurist Anton Mittermeier speaks of a battle of reasons that plays itself out in the mind of the one who judges, a battle out of which the conviction develops.18 Truth [End Page 533] and certainty are thereby themselves tried before the court and are—in this process—reconnected with the events and procedures that contribute to the shaping of the conviction.

With respect to the evaluation of testimonial evidence in the legal process, this proceduralization means the necessary implication of structural moments that would be more typically identified with the realm of literary fiction. If the process of discovering the truth rests upon the creation of a conviction, then this cannot be separated from the narrative act and the representative scene of persuasion—the necessarily supplementary functions which undermine the authenticity of the testimony. The witness becomes a supplement to that to which he attests and about which the judge seeks to create certainty. Bound to the historical truth, the temporality of witnessing and its evidentiary force must be understood as that which will have been the case. Its 'literarity' consequently lies in the complex temporal inter-relation between narration and interpretation in the trial, a process that recalls the past in such a way that the truth must come from the future: as a judgment that, up until the end, is always absent.

4. Law and Literature—Approaching 'the Literary' in Witnessing

It would now appear appropriate to abandon the legal discourse on testimony and spend a few words on literature. Because without literature there would be nothing literary about witnessing except for metaphorical language; there would be nothing that could be concretely fixed as the 'literary' quality of witnessing. Numerous collections of legal case- and criminal-histories present themselves here as possible objects of consideration. In the 19th Century such collections enjoyed an extraordinary degree of interest, not only of legal scholars but also of the educated lay public. The most well-known among them is undoubtedly François Gayot de Pitaval's Causes célèbres et interessantes, that appeared as early as 1747 in a German translation under the title of Die berühmten und interessanten Rechtsfälle—and again in a new edition from François Richer that was adorned with a forward by Friedrich Schiller. The background-material of numerous literary works, among them E. T. A. Hoffmann's crime-story Das Fräulein von Scuderi of 1819, can be found in Pitaval's collection.

The aims of such anthologies of cases were thoroughly diverse. They counted as documents of legal history, and the reconstruction and preparation of the cases in question was at the same time viewed as exemplary for legal discourse. To this extent, they were textbooks [End Page 534] for training in courtroom-rhetoric. Above all however, the sketching of the stories of delinquents held promise for Enlightenment, in the sense of a general anthropological and psychological science of man and his spirit. Collections like Anselm Feuerbach's Aktenmäßige Darstellung merkwürdiger Verbrechen of 1827 derived arguments from the presented material in favor of legal-political reforms and an expansion of the science of law.

Feuerbach supports his Enlightenment-position favoring such a development with a reference to Schiller's 1786 first publication of the crime-story Verbrecher aus Infamie. This story sharply criticizes the dominant legal positivism of the time and demands not only a more attentive gaze into "das Buch der Gesetze" but also and even more intensively into "die Gemüthsverfassung des Beklagten".19 This example shows that the transfer of knowledge between literature and law was by no means one-sided, but instead corresponded to a complex network of verifications. None of the legal case-collections of the 19th Century could get by without the obligatory gesture toward Schiller. And the fact that Schiller put aside his Wallenstein in order to work on the forward to Pitaval may be justified considering that the Enlightenment-function of these anthologies came close to the aims of his own literary creation. In the introduction to his crime-story he writes that morality and legislative power should follow the example set by the doctor whose sources of knowledge are sickbeds and deathbeds, and construct their doctrines from the perspective of court and criminal files. The story itself, whose subtitle designates it as 'a true story', orients itself according to the historical case of the robber Friedrich Schwan—who receives from Schiller the rather loaded name of Christian Wolf. The circumstances and details of the plot are also significantly altered. The story is thus not 'true' in the sense of a correct reiteration of historical events, but is so instead—following the usage of the poetics of the era—due to Schiller's strict compliance with the laws of psychological probability in his confabulation. Thus something that might be said of the genre of the crime-story in general becomes particularly clear in this instance: The story begins with the demand of authenticity and of having a coherent truth-content, while at the same time allowing it to be known how little its account matches the actual historical one. Piece by piece the [End Page 535] story's logic is reproducible, a logic by which a protagonist who has been outcast from society becomes ever more entangled in criminality and thereby goes from being a recidivist poacher to a murderer. Schiller ascribes this transformation to a punitive system oriented toward retribution and to the positivistic jurisprudence that subsumes the individual case within the general rule, instead of evaluating it as such in its individuality. Differentiating himself from these, Schiller speaks of the narrative necessity of laying bare the circumstances and motives of the protagonist in such a way that it becomes possible for the reader to make his own judgment. In opposition to the law's ignorance with regard to the individual, a narratorial perspective develops that alternates between third and first person ("man höre ihn selbst"20 ), thereby giving him a voice—as the one who (according to the portrayal of the author) is unable to find a voice within judicial practice.

The Enlightenment conception of literary testimony expressed here connects narrative theory with considerations of the aesthetics of reception. In the introduction Schiller differentiates his narrative technique from that of the orator and the poet and places it explicitly on the side of the historian. He vehemently attacks those authors who: "das Herz ihres Lesers durch hinreißenden Vortrag bestochen haben"21 . Precisely because the testimony of literature is not bound by the historical truth but instead by the internal and artistic truth, it should provide the reader with a representation that does not predetermine his or her judgment in any way: "Ich will dem Ausspruch des Lesers nicht vorgreifen."22 What is to be avoided here is the powerful and artificially constructed rhetoric of persuasion. The narrative implementation of this critical argument of the legal system—of which Schiller without a doubt seeks to persuade his reader—should convince without using overwhelming rhetorical force and thereby seem authentic. The idea is to attain a pedagogical profit without the use of force. This belongs to the basic repertoire of idealistic aesthetics and social theory, whose attempts to affect society are inseparably tied to a self-deception on this central issue. The idealistic conception of aesthetic education indeed reaches its most powerful and influential formulation in the essay Die Schaubühne als eine moralische Anstalt betrachtet, the metaphorics of which refer with [End Page 536] almost excessive clarity to the dimension of the totality; the rhetorical violence of his own text thus remains as a blind spot for Schiller, as in the sentimental conceptions of pedagogy in Herder and Lavater. The problematic presupposition of a purely natural process of persuasion and a rhetorics of the avoidance of rhetoric—one that criticizes the erudition of the old style and the art of persuasion from a Sturm und Drang's standpoint of authenticity—invoke similar paradoxes to those that have already become clear in the juridical discourse on witnessing: The statement of the witness should be convincing, but he should behave naturally and not convince artificially. To have one's doubts about the existence of such a sphere beyond the artificial is something that is not limited to the realm of art. This also means that literary and legal testimony cannot be simply identified with one another, though they certainly come in contact with each other and have comparable difficulties. The aporias themselves are grounded in the assumption of authenticity; this is what places the two in relation of correspondence.

With this in the background, I will turn in conclusion to an example from one of those case-anthologies that possess a hybrid-status between law and literature. In Feuerbach's already mentioned Aktenmäßiger Darstellung merkwürdiger Verbrechen there is the case of Moritz Rosenthal, who was found guilty of murder in two separate trials, on the 6th of May and on the 9th of July 1823. Feuerbach calls the case-history a "Beitrag zur Beantwortung der Frage: was müssen Zeugen mit ihren eigenen Sinnen beobachtet haben, um eine Thatsache unmittelbar zu beweisen?"23 It is thus a question of the eye-witness, who is the essence of the witness in general. The case itself can be quickly narrated: The merchant Moritz Rosenthal—attributed by the author with all of the anti-Semitic cliches of the 'haggling Jew'—is in an inn and gets into a dispute with a guest of the establishment over the price of his wares. The guest jumps up from his table and presses himself against Rosenthal and at the same instant he sinks dead to the ground crying 'he stabbed me.' Rosenthal still has the knife in his hand afterwards, which is taken from him by the other guests. He is taken into custody immediately and given a hearing. In the hearing he admits that the deadly wound was caused by his knife; he denies however that he actively stabbed and presents the incident as an accident for which the victim himself was to blame. [End Page 537]

For the judicial record of the evidence it was decisive that, of the total of eight witnesses who identified the accused (contrary to his statement) as the active doer of the deed, only one of them saw that he had the knife in his hand at the moment of the blow. The others saw just the blow at first and then the knife in Rosenthal's hand only after the victim's collapse. In both trials Rosenthal was convicted of murder, but the evidentiary value of the testimonies was assessed differently. The first trial supposed that only this one witness was a real eye-witness and saw the deed in its entirety. Because two fully reliable witnesses are necessary for a sufficient proof by witness, the verdict was the result of a so-called 'composite proof,' that is by the additional application of other indications. In the second instance, on the other hand, all of the witnesses were treated as direct eye-witnesses to the crime and the sentence was reached on the basis of the agreement of their statements.

Feuerbach's depiction of the case now aims to show that the concept of the eye-witness may not be so narrowly conceived as was done in the first trial. According to Feuerbach, it goes 'against all nature', not to recognize as eye-witnesses of the deed those witnesses who happened to have missed how the knife entered the chest of the victim. If this were permissible, then no criminal would ever be able to be found guilty based on the testimony of witnesses. To the contrary it is necessary as well as admissible that the witness connect his sensory perceptions with the conclusions of reason. This, says Feuerbach, is the coherent structure by which knowledge is gained in every subject. "Wo hier die Sinne aufhören, tritt der Verstand ergänzend ein."24

What is interesting about Feuerbach's text—as a text—is the way he attempts to convince readers of his own definition of testimony. Eight witnesses have seen the incident in question. Feuerbach himself sets up a series of just as many exemplary stories in order to illustrate his thesis of the necessary supplementation of perception by reason. Anyone who observes, for instance, that A fires a shot in the direction of B and subsequently sees B fall to the ground—this observer need not be able to follow the flight of the bullet into the chest of the victim in order to bear witness to the shooting of B by A. And anyone before whose eyes a crying child is put into an oven and left there for a half an hour—this person should also be viewed as the direct [End Page 538] witness of incineration, even if the actual process of burning is not seen by him.

Wer daher, um diese Thatsache durch meine Aussage für erwiesen zu halten, noch verlangt, daß ich in dem Ofen selbst dem chemischen Verbrennungsprozeß zugesehen, könnte mir auch mit eben so viel Recht den, auf meine eigene Sinneserkenntnis gegründeten Beweis zumuthen wollen, daß die Sonne, welche heute aufgegangen, dieselbe sei, welche gestern untergegangen ist.25

One would not wish to contradict Feuerbach on this. The author has reached his goal and convinced the reader. It is however conspicuous that the quality of his examples is inconsistent. The story of the pistol that begins the series seems in fact less convincing than the one about the child in the oven that is almost at the end. The shot may always have been fired by someone unseen by the witness. But it is the serialization of examples, the rhetorical technology of repetition, that allows the power of persuasion to continually increase. More and more the examples become decorated to little scene-like narratives. Feuerbach gestures toward the laws and rules of the human spirit, that he knows in the Kantian sense to always be at work in testimonial observations. Through this process (and only by it, according to Feuerbach), the eye-witness shapes his convictions. By trying, however, to prove precisely this point, Feuerbach's exemplary narratives allow the literary surplus of persuasion to appear. In his conclusion, seen especially in his reference—a step towards self-evidence—to the course of the sun as validated by natural laws, the battle for reasons according to reason (the polemos that is meant to found persuasion by the logic of the conclusion drawn) gives way to Polemik. By strengthening his argument in this way, Feuerbach also simultaneously weakens it. Because, for his arguments on eye-witnessing, merely logical conclusions do not suffice; instead his arguments bring the rhetorical-literary technology of persuasion to bear with such a force that the evidence for his thesis is made to appear to be in need of supplementation, thereby threatening to turn his thesis upside down.

As if incidentally, Feuerbach thus brings one of the fundamental problems of witnessing before the eyes of his readers, a problem which Paul de Man has punctually described: "When a persuasion has to become a scene of persuasion one is no longer in the same way [End Page 539] persuaded of its persuasiveness."26 Whether this is only to be understood in the sense of a generalizable self-deconstruction of the witness and of witnessing—that is, in Derrida's sense—is something that should not be decided too hastily. In every case however, we have gotten an idea of what may follow from the claim that testimony structurally implies the possibility of literature. Because even the present analysis of witnessing—now at its conclusion—has no other choice than to try to convince with examples.

(translated by Kirk Allen Wetters)

Thomas Weitin teaches at the Humboldt Universität Berlin and is currently a fellow at the Max-Planck-Institut für europäische Rechtsgeschichte in Frankfurt am Main. He is author of Notwendige Gewalt. Die Moderne Ernst Jüngers und Heiner Müllers (2003) and co-editor of Eskalationen. Die Gewalt von Kultur, Recht und Politik (2003).

Footnotes

1. Exodus 19:9.

2. Ibid., 20:18.

3. Jacques Derrida, Demeure. Fiction and Testimony (Stanford 2000) 29.

4. Ibid., 30.

5. Ibid., 33.

6. Walter Benjamin, "Das Kunstwerk im Zeitalter seiner technischen Reproduzierbarkeit," Gesammelte Schriften, ed. Rolf Tiedemann and Hermann Schweppenhäuser, vol. I/2 (Frankfurt/Main 1990) 438.

7. Derrida, 42.

8. Ibid., 32, emphases mine, TW.

9. See Elisabeth Koch, "Der Zeugenbeweis in der deutschen Strafprozeßrechtsreform des 19. Jahrhunderts," Subjektivierung des justiziellen Beweisverfahrens. Beiträge zum Zeugenbeweis in Europa und den USA (18.-20. Jahrhundert), ed. André Gouron (Frankfurt/Main, 1994) 247.

10. See Michael Niehaus, Peter Friedrich, "Transparenz und Maskerade. Zur Diskussion über das öffentlich-mündliche Gerichtsverfahren um 1800 in Deutschland," Poetologien des Wissens um 1800, ed. Joseph Vogl (München, 1999) 166.

11. See Michel Foucault, Der Wille zum Wissen. Sexualität und Wahrheit 1 (Frankfurt/Main, 1983) 77.

12. Julius Glaser, Beiträge zur Lehre vom Beweis im Strafprozeß (Leipzig, 1883) [Reprint: Aalen, 1978] 10.

13. Entstehung und Quellen der Strafprozeßordnung von 1877, ed. Werner Schubert, Jürgen Regge (Frankfurt/Main, 1989) 705.

14. See Rudolf Stichweh, "Zur Subjektivierung der Entscheidungsfindung im deutschen Strafprozeß des 19. Jahrhunderts," Subjektivierung, ed. Gouron, 265-300.

15. Glaser, Beiträge, 259.

16. Ibid., emphases mine, TW.

17. Immanuel Kant, "Anthropologie in pragmatischer Hinsicht," Werke, ed. Wilhelm Weischedel, vol. 12 (Frankfurt/Main, 1991) 401.

18. "Durch die Verschiedenheit der Eindrücke und der Wirkung, welche die Thatsache auf das Gemüth des Urtheilenden hervorbringen [sic], entsteht überall in dem Gemüthe des Urtheilenden ein Kampf von Gründen für und wider eine Ansicht, und aus diesem Kampfe entwickelt sich erst die Ueberzeugung." (K.J.A. Mittermeier, Die Lehre vom Beweise im deutschen Strafprozesse nach der Fortbildung durch Gerichtsgebrauch und deutsche Gesetzbücher in Vergleichung mit den Ansichten des englischen und französischen Strafverfahrens (Darmstadt, 1834) [Reprint: Leipzig, 1970] 60)

19. Friedrich Schiller, "Der Verbrecher aus Infamie," Sämmtliche Schriften, ed. Karl Goedeke, vol. 4 (Stuttgart, 1868) 67.

20. Ibid.

21. Ibid.

22. Ibid., 64.

23. P.J.A. von Feuerbach, Aktenmäßige Darstellung merkwürdiger Verbrechen (Frankfurt/Main, 31849) [Reprint: Aalen, 1970] 550.

24. Ibid., 557.

25. Ibid., 559.

26. Paul de Man, "Aesthetic Formalization: Kleist's Ãœber das Marionettentheater," The Rhetoric of Romanticism (New York, 1984) 269.