Postmodern Ethics and the Expression of Differends in the Novels of Jeanette Winterson

In Le Différend, Lyotard defines the silencing of victims, with its consequent effacement of the violence done to them, as that which creates a wrong (tort), which he distinguishes from damage (dommage).² A damage occurs when one being is harmed by another. Many kinds of damage may be litigated against, taken to court, proven, and compensated for. But sometimes a damage cannot be expressed, whether because the being who undergoes the damage is unable to speak in a language to which the judges will listen (as in the case of animals, children, the mentally ill, the dead), or because the judges are the ones who have done the damage, whether directly or through affiliation, or because the testimony of the one damaged is deprived of authority for whatever reason.³ Such a scenario is called a differend, and the person who suffers from both a damage and a loss of the ability to prove it is a victim.⁴ Lyotard's primary example is of the victims of Auschwitz, who were simultaneously damaged, that is killed, and deprived of the ability to bear witness to what was done to them, because they are dead. Anyone else who might testify to Auschwitz may have her authority undermined by Holocaust deniers by the very fact that she is alive and hence cannot have seen what happened in the chambers, since the only witnesses to what occurred there are dead.⁵ More common examples may be helpful, however, and I would like to consider a few that gender my discussion of differends.

In "Contingent Foundations," Judith Butler notes that "subjects are constituted through exclusion, that is, through the creation of a domain of deauthorized subjects, presubjects, figures of abjection, populations erased from view."⁶ It is a question of "who qualifies as a 'who'"⁷ and hence of who can speak, whose testimony will be heard. The silencing of certain voices, the effacement of certain persons' sufferings, is achieved through the denial that they are "whos," or through their abjection, and this makes violence to them permissible, indeed invisible. In the case of the Gulf War, for instance, the Muslim was abjected, Butler notes, not only through the traditional feminization of the Easterner, but through homophobic tropes, which facilitated the acceptance and erasure of the violences of this war.⁸ Other de-authorised subjects would be women, who are already feminized, and thus already de-authorised within patriarchal discourse such as through the litigation practices with which Lyotard is concerned. Butler's discussion in the latter half of her essay illustrates this last point well, as she takes up the case of rape trials, in which the disempowerment of the female victim is structural to legal and judicial discourse. As Butler writes, "Here the construction of subject-positions works to exclude women from the description of oppression, one that is effected by the very erasure that grounds the articulation of the emancipatory subject."⁹ The raped woman's testimony simply does not signify, for instance when "twelve separate pieces of empirical evidence are required to establish 'rape,'" which legislation Butler calls "a governmentally facilitated rape."¹⁰ This puts judges in the place of the rapist, such that a differend occurs because the victim must appeal for litigation to her own oppressor, and thus will not be heard. In other instances, the authority of the woman's testimony is undermined, as when she is described as promiscuous, or faulted for being in a situation in which a woman with "good" sexual mores would not find herself. In this case, the defense attorney and judges are accusing and condemning the woman based on a set of moral values which can be deemed patriarchal, and the woman, as the victim of one act of patriarchal violence, the rape, finds herself in a situation in...