Zeugenschaft. Das Recht der Literatur (review)

The interdisciplinary field of Law and Literature is commonly described as having two broad and complementary approaches: law in literature and law as literature. The first looks at how law is depicted in works of fiction, and the second addresses how law can benefit from a literary analysis. Weitin departs from that distinction in that he intends to contribute to the “German discussion” (12) which, in his opinion, takes a different, more systematic approach by showing the interdependency between both disciplines. In his analysis, Weitin addresses questions that relate to how witnesses and witnessing are represented in fiction. Additionally, he examines how changes in (criminal) procedure in the 18^th century influenced works of literature. As the title suggests, the book looks at how aspects of the judicial and literary search for “the truth” are represented by witnessing, the witness, and testimony in general. The central and broadly framed thesis is that witnessing can be regarded as an interface between the disciplines of law and literature. Eventually, the author concludes that the witness is the embodiment of literary and judicial subjectivity (375) and that the concept of witnessing led the way to modernity in literature.

Weitin’s analysis proceeds in three parts, representing what he calls, “three layers of the escalation of the development of subjectivity” (17). In the first part (“Poets and Judges. Instances of Judgment between Literary Theory, Criminal Law, and Procedural Law”), the overarching theme of the book is explored: During and after the Age of Enlightenment (18^th century) the role of witnesses in Continental European criminal procedure became more and more important. Torture as a means of extorting confessions from suspects became the subject of scholarly criticism. This influenced new legislation, especially in Prussia, which then led to the abolishment of torture.

The original inquisitorial procedure with its reliance on confessions of suspects came to an end. Witnesses other than the suspect became important pieces of evidence for a judge to support the factual basis of a decision. At the same time, the trial changed its character from secret to public and oral (39). Weitin argues that both developments influenced literary thinking and writing, for example by “the dramatization” (67) of the criminal trial. By that the general appearance and demeanor of a witness became part of the trial “scene” (59). Dramas that represent this new development include Friedrich Schiller’s Die Räuber (The Robbers) and Maria Stuart (42). In his discussion of Maria Stuart, Weitin looks at the conflict between procedural law and clemency and the problem of immediacy, i.e., the requirement that all evidence has to be shown and presented in court.

The second part (“Personal Accounts. The Authenticated Individual”) connects with the first in stressing the importance of authenticity of witnesses and their testimony in court and in literature. Weitin discusses the textualization of witness testimony from the medieval trial to the trial of the 18^th century and its importance for criminal procedure. He then portrays the emergence of personal accounts in literature such as the diary or journal as means of witnessing oneself (211). This development, Weitin argues, had an influence on the orientation of the criminal justice system towards more leniency and a change in the goals of punishment in general (214) from retribution to what we now commonly describe as prevention and rehabilitation (37–38). At the same time, however, courts had difficulties accepting the subjectivity of witnessing. The works Weitin discusses relate to personal accounts of witnessing. They include Jean-Jacques Rousseau’s The Confessions, Johann Kaspar Lavater’s Secret Diary, and Johann Wolfgang von Goethe’s The Sorrows of Young Werther. Since an author has to be considered a witness of himself, Weitin addresses the interdependency between “the author” and his individual background. Goethe, for example, was a trained lawyer, which might have had an influence on the authenticity of his fiction.

Part Three (“Narrated Law. Truth and the Literary Form”) is concerned with questions of narrativity and reliability. Since the process of testifying in legal...