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SHOSHANA FELMAN I - - SHOSHANA FELMAN i A TRIALS AND TRAUMAS IN THE ' TWENTIETH CENTURY Shoshana Felman THE JURIDICAL UNCONSCIOUS Trials and Traumas in the Twentieth Century Harvard University Press Cambridge, Massachusetts, and London, England 2002 Contents Copyright O 2002 by the President and Fellows of Harvard College Acknowledgments ALI rights reserved Printed in the United States of America Introduction 1 The Storyteller's Silence: Walter Benjamin's Libvavy of Congvess Cataloging-in-Publication Data Dilemma of Justice Felman, Shoshana 2 Forms of Judicial Blindness, or the Evidence of The juridical unconscious : trials and traumas in the What Cannot Be Seen: Traumatic Narratives and twentieth century / Shoshana Felman, Legal Repetitions in the 0. J. Simpson Case p. cm. and in Tolstoy's T%e IGeutzer Sonata 54 Includes bibliographical references and index. ISBN 0-674-00931-2(cloth : alk. paper)-ISBN 0-674-00951-7 (paper : alk. paper) 3 Theaters of Justice: Arendt in Jerusalem, the 1. Law-Psychological aspects. 2. Trials-History-20th century- Eichmann Trial, and the Redefinition of Legal Psychological aspects. 3. Law in literature. I. Title. Meaning in the Wake of the Holocaust 106 4 A Ghost in the House of Justice: Death and the Language of the Law 131 Abbreviations 169 Notes 1 71 Index 245 Acknowledgments This book could not have been written without the ongoing critical feedback of two people whose proficiency and expertise in two spe- cific areas (here conjoined and thought together) is greater than mine: Michal Shaked for jurisprudence (and legal thinking); Cathy Caruth for trauma theory (and its conceptual implications). I thank both for their rigor, which was for me a guiding inspiration, and for their help in sharp- ening the concepts here developed. Other precious interlocutors and guiding readers were Barbara Johnson, who, along with Eyal Peretz, as- sisted me in the concluding process of thinking through the synthetic structure of the introduction, and Rivka Spivak, who helped me and ac- companied me in thinking through the synthetic theoretical framework of Chapter 1. Winfried Menninghaus solicited the first version of the text on Benjamin, and made me benefit from his outstanding erudition and from his ear for the nuances of the German language in Benjamin's texts. My path into Benjamin owes much to his friendly encouragement. Idit Zertal read early versions of Chapters 1 and 3 and contributed her literary acumen and a historian's perspective and stamp of approval. Dori Laub offered expert and discerning psychoanalytic feedback on early ver- sions of Chapters 3 and 4. Irad Kimhi followed the evolution of the manuscript chapter by chapter and contributed his generous and unfail- ing philosophical attention, interest, and insight. Pnina Lahav thought- fully and liberally gave time and legal feedback, in reading early versions of Chapters 2 and 3. Her open-minded, sympathetic, and responsive comments encouraged me to pursue the project further. I am grateful to Elizabeth Rottenberg for her faith in the book'dnd for the preparation of the index. Finally, I wish to thank Dalia Tsuk for her highly discriminat- ing, expert legal and historical assistance in the supportive and wide- ranging interdisciplinary research of Chapter 2. ... "11, - ACKNOWLEDGMENTS An early version of the second half of Chapter 1 appeared under the title "Benjamin's Silence" in Critical Inquiry 25 (Winter 1999): 201-234. An early version of Chapter 2, entitled "Forms of Judicial Blindness, or the Evidence of What Cannot Be Seen: Traumatic Narratives and Le- gal Repetitions in the 0. J. Simpson Case and in Tolstoy's The Kreutzer Sonata," appeared in Critical Inquiry23 (Summer 1997): 738-788. A revised and extended version of this essay, entitled "Forms of Judi- cial Blindness: Traumatic Narratives and Legal Repetitions," appeared in History, Memory, and the Law, ed. Austin Sarat and Thomas R Kearns (Ann Arbor: University of Michigan Press, 1999), pp. 25-94. THE JURIDICAL UNCONSCIOUS An early version of Chapter 3, entitled "Theaters of Justice: Arendt in Jerusalem, the Eichmann Trial, and the Redefinition of Legal Meaning in the Wake of the Holocaust," appeared in Theoretical Inquiries in Law 1 (Tel Aviv University Law School journal), special issue Judgment in the Shadow of the Holocaust (July 2000): 465-507. A revised version of this essay, entitled "Theaters of Justice: Arendt in Jerusalem, the Eichmann Trial, and the Redefinition of Legal Meaning in the Wake of the Holocaust," appeared in Critical Inquiry 27 (Winter 2001): 201-238. An early version of Chapter 4, entitled "A Ghost in the House of Jus- tice: Death and the Language of the Law," appeared in Yale Journal of Law and the Humanities 13, special issue Cultural Studies and the Law (July 2001): 241-282. Introduction The hour ofjustice, . the hour of institutions empowered to judge, of states within which institutions are consolidated, of Universal Law. , and of citizens equal before the law. is the hour of the Western World. The hour ofjustice [is] required, however, by charity. It is in the name ofthat responsibility for the other, in the name of that mercy, that kindness to which the face ofthe other man appeals, that the entire discourse ofjustice is set in motion. -Emmanuel Levinas, "The Other, Utopia and Justice" Must not human beings, who are incomparable, be compared? . I must judge . Here is the birth of the theoretical. But it is always starting out from the face, from the responsibility for the other, that justice appears. -Emmanuel Levinas, "Philosophy, Justice and Love" This book deals with the hidden link between trials and traumas:' two topics that in previous generations have existed as two separate phenom- ena, but that have begun to be to be linked, I will argue, in the second half of the twentieth cent~ry.~Trial and trauma have become-I claim- conceptuallv articulated ever since the Nuremberg trials attempted to re- solve the massive trauma of the Second World War by the conceptual re- sources and by the practical tools of the law. In the wake of Nuremberg, the law was challenged to address the causes and consequences of histor- ical traumas. In setting up a precedent and a new paradigm of trial, the international community attempted to restore the world's balance by re- establishing the law's monopoly on violence, and by conceiving of jus- tice not simply as punishment but as a marked symbolic exit from the injuries of a traumatic history: as liberation from violence itself. The twentieth century-an era of historic,trials-was in effect a cen- tury of traumas and (concurrently) a century of theories of tra~ma.~ Since Freud first published at the threshold of the First World War his "Thoughts for the Times on War and Death" (1915); since war and death destructively and catastrophically returned and repeated their traumatic devastation in the holocaust of two world wars; since the trau- 2 INTRODUCTION INTRODUCTION ' 3 matic and protracted repercussions of the Vietnam War; since the totali- Americans have known surprise attacks, but never before on tarian revolutions of the first half of the century and their new forms thousands of civilians. of organized enslavement, massacre, massive deception, and large-scale All of this was brought upon us in a single day, and night fell on a brutality and horror; since feminists first grasped toward the end of the different world . millennium that the renewed manifestations of domestic violence and of 1 will never forget the wound to our country and those who in- deceptive intimate brutality and private horror are in fact collective trau- flicted it.-' mas; since the appearance of new forms of political, racial, and sexual persecution and their historical translation into legal claims, trauma But no sooner had collective trauma ("the wound to our country") been quite visibly today invades the law in all its forms. In an era in which named than its link to law and justice has emerged or reemerged as a re- trials-televised and broadcast--ceased to be a matter of exclusive inter- parative and healing mode of a community's recovery of meaning. est to jurists and penetrated and increasingly invaded culture, literature, art, politics, and the deliberated public life of society at large, the hidden Our grief has turned to anger and anger to resolution. Whether we bring our enemies to justice or bring justice to our enemies, justice link between trauma and law has gradually become more visible and - -. will be done.5 more dramatically apparent. I therefore argue that this absolutely crucial link-which hitherto had As a pattern inherited from the great catastrophes and the collective remained hidden or legally unreadable-historically came to the fore as a traumas of the twentieth century: the promised exercise of legal jus- result of three interrelated twentieth-century occurrences, whose inter- tice-of justice by trial and by law-has become civilization's most ap- action 1 will try precisely to think through: (1) the discovery of psycho- propriate and most essential, most ultimately meaningful response to the analysis and, with it, the discovery of trauma as a new conceptual center, violence that wounds it.7 an essential dimension of human and historical experience and a new At the turn of the century and at the turn of the millennium, contem- type of understanding of historical causality and of historic temporality; porary history can thus be said to be crystallized around these two poles: (2) the unprecedented number of disastrous events on a mass scale that the trial (law and justice), on the one hand, and trauma (collective as wreaked havoc on the twentieth century and whose massively traumatic well as private trauma, trauma and memory, trauma and forgetfulness, ravages were rendered possible by the development of weapons of mass trauma and forgiveness, trauma and repetition of the trauma) on the destruction and technologies of death that allowed for unprecedented other hand.
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