History, Memory, and the Law

Forms of Judicial Blindness: Traumatic Narratives and Legal Repetitions

Forms of Judicial Blindness: Traumatic Narratives and Legal Repetitions Shoshana Felman This essay will propose a theory of legal repetition, based on a comparative structural interpretation of a legal case and of a fictional, imaginary story written by one of the great writers of all times. I will attempt to integrate a literary vision with a legal vision, with the intention of confronting evidence in law and evidence in art. The case in the equation will be one that has impacted on our times-the notorious O. J. Simpson criminal trial, apparently an all-too-familiar legal case that will, however, be somewhat estranged by the analysis and sound less familiar through its unpredictable illumination by the literary case, equally a case of crime and trial. The literary text in the equation is a famous story by Tolstoy entitled The Kreutzer Sonata. In both the legal drama of the case and the literary drama of the Copyright © 1998 by Shoshana Felman, Thomas E. Donnelley Professor of French and Comparative Literature, Yale University. This material may not be reprinted, reproduced , photocopied, quoted, or cited, in whole or in part, without express permission of the author. All rights reserved. The present essay is an excerpt from a book entitled Dilemmas of Justice (Literature /Psychoanalysis/Law) (to be published). An earlier version of this text was published in Critical Inquiry 23 (1997): 738- 88. This text could not have been written without the ongoing critical feedback of two people whose proficiency and expertise in two specific 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 sharpening the concepts here developed. Pnina Lahav read an early version of the manuscript and offered supportive comments that encouraged me to pursue it further. Finally, I wish to thank Dalia Tsuk for her highly discriminating expert assistance in legal and historical research. HISTORY, MEMORY, AND THE LAW text, what is at issue is a marriage that ends up in murder. In both, a jealous husband is arrested and put on trial for the murder of his wifeand is acquitted. A difference is, however, striking from the start: the husband in Tolstoy's work acknowledges his guilt, and is precisely telling us the story to explain not only why, but how he killed his wife. A trial and a literary text do not aim at the same kind of conclusion, nor do they strive toward the same kind of effect. A trial is presumed to be a search for truth, but, technically, it is a search for a decision, and thus, in essence, it seeks not simply truth but a finality: a force of resolution . A literary text is, on the other hand, a search for meaning, for expression, for heightened significance, and for symbolic understanding . I propose to make use of this difference in literary and legal goals, by reading them across each other and against each other. I propose, in other words, to draw the questions of what was entitled at the time "the trial of the century" into Tolstoy's text, but even more importantly, to draw out Tolstoy's insight, so to speak, into the O. J. Simpson case in order to illuminate legal obscurities with literary insights and to reflect on ambiguities the trial has left by using textual issues that will turn out (surprisingly) to be quite relevant to them. I On the Separate Jurisdictions of Law and Literature The dialogue between the disciplines of law and literaturel has so far been primarily thematic (that is, essentially conservative of the integrity and of the stable epistemological boundaries of the two fields): when not borrowing the tools of literature to analyze (rhetori1 . For recent overviews and general discussions of the field of "law and literature," see (in chronological order) Brook Thomas, "Reflections on the Law and Literature Revival," Critical Inquiry 17 (1991): 51(}-37; C. R. B. Dunlop, "Literature Studies in Law Schools," Cardozo Studies in Law and Literature 3 (1991): 63-110; Richard H. Weisberg, Poethics : And Other Strategies of Law and Literature (New York: Columbia University Press, 1992), and "Three Lessons from Law and Literature," Loyola of Los Angeles Law Review 27 (1993): 285-303; John Fischer, "Reading Literature/Reading Law: Is There a Literary Jurisprudence?" Texas Law Revie'w 72 (1993): 135-60; Gary Minda...