The Testamentary Whimper

Somewhere between the imperatives of reality testing and the interrogatory title "What Is Called Thinking?" Jean-François Lyotard institutes phrase regimens—events that surpass the holding capacity of a linguistic act.¹ Here, language and proof have met their reciprocal limits. Exploring the failure of speculative thought to supply relief to victims of colossal as well as minute, unclassified historical grief, phrase regimens go to the heart of injurious wrongdoing. They underscore the weakness of evidence and of probative restitutional acts. "A wrong," writes Lyotard, "is a damage accompanied by the loss of the means to prove the damage."² Prior to the confirmation that a right has been infringed upon, and earlier still than the recognition of the human, Lyotard inquires about the impossibility of human rights. Beyond hypothesis yet in some cases legally short of proof, the desolating ordeal to which Lyotard addresses this inquiry concerns evasive turns of law when called on to perform justice. On the one hand, Lyotard's work comes to the aid of those who, unable to manipulate the rules of cognitive discourse, are left stranded by speculative thinking; those who phrase according to the rules of other genres are stripped of the very power to speak. On the other hand, rescue and relief cannot be guaranteed, for every phrase in itself is capable of offending another phrase and thus runs an inevitable risk of wrongdoing. What happens to those among us who make existence claims that, according to the rules of cognitive discourse, cannot be validated? What about those whose distress has not been proven, whose rights have not been recognized, and whose pain has yet to be legally seared into our living memories?

In The Differend everything is staked on the plight of a phrase whose regimen excludes cognitive verification. Lyotard examines the nearly closed cases of those whose discursive fragility is legendary, and for whom no test of heterogeneous phrasal regimens has been devised. They include the perpetually contested, the historically harassed victims of rape, or those survivors whose claims concerning the existence of gas chambers has been rejected by an emissary or mask of a Faurisson—the revisionist historian whose demand for proofs opened a notorious "debate." (Can the existence of gas chambers be debated and, if not, why not? If so, in what terms? Does the resistance to debate already indicate a grave political problem, or is debate itself a subterfuge, a simulated solution—or worse, an offense, to the extent that it puts a historical occurrence up for discursive grabs?) Lyotard shows how the demand to establish the reality of a phrase according to normative procedures can wrong a witness, can produce unsolvable conflicts or radical differends. One problem is that the revisionist historian monopolizes and appropriates cognitive discourse, comfortably finding critical support in the workings of speculative thought. The victim asked to account for the reality to which she points, sometimes mutely, is under pressure to produce reference. She becomes witness but also structurally assumes the place of plaintiff. The circumstance of seeking what has since been californianized into "validation" puts the victim in the position of a plaintiff before a public court. The differend is "owed to the impossibility faced by the plaintiff of demonstrating the existence of what is in question. The kind of demands for verification that are made of him stifle the plaintiff's ability to furnish proof."³ Reality, writes Lyotard, "is always the plaintiff's responsibility."⁴ What this means is that the plaintiff must shoulder the burden of establishing the existence of the referent. In the terms and logic that Lyotard confronts, it becomes even the burden of the victims of the Shoah to prove the extermination, to supply proof for the reality of gas chambers. Reality, whether of a historical or more personally cut nature, is not pregiven, and cannot by any means be taken for granted but recurrently foregrounds the contestability of the referent. Reality is "always potentially in...