Testimony and the Rhetoric of Persuasion
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MLN 119.3 (2004) 525-540



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Testimony and the Rhetoric of Persuasion

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...


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