The Invention of the Eyewitness: Witnessing and Testimony in Early Modern France (review)

Andrea Frisch's recovery of the history of the witness in early modern French law might seem to be of interest only to specialists in French legal history and literature. Frisch's book, however, shows how the study of early modern legal culture can have the widest implications for histories of epistemology, subjectivity, and literature in the modern West. Frisch begins by critiquing the concept of the "eyewitness" in modern Western discourse, showing how it is predicated on the grammatical first-person's claim to have had unmediated experience of an event in the past. This assumption is built into our habitual abstraction of the eyewitness, and our tendency to elevate that abstraction to the status of a universal principle. Even the Derridean deconstruction of this Western commonsense principle assumes its universality. The ontological divide within testimony which Derrida discovers in the temporal gap between the present moment of testifying (of saying "I saw, I experienced"), and the past moment of the experience, is predicated on the definition of the witness as an isolated individual who speaks authentically — because autobiographically — about the past.

Frisch describes the modern paradigm of witnessing as a "epistemic" model and contrasts it with witnessing as construed by medieval European (specifically French) legal custom. In popular legal practice, as shown by French manuals of customary law from the thirteenth and fourteenth centuries (for example, Philippe de Beaumanoir's thirteenth-century Coutumes de Beauvaisis), the act of witnessing was inextricably implicated in a web of social relations. To bear witness in support of a disputing party was an act of solidarity by which was understood thewillingness to put oneself at risk: to fight a duel, undergo an ordeal, perjure oneself. While some knowledge of the disputed facts or events was involved, the act of witnessing itself was not exclusively defined by a claim to experiential knowledge of these, but rather by the ethical claim of the disputant on whose behalf one bore witness. For example, the three hundred lords who testified in a Merovingian adultery case to the legitimacy of the child of the accused noblewoman, were not saying "I saw" or "I experienced," but were identifying the accused woman as virtuous, as a member of their own ethical community. Frisch thus opposes this folklaw concept of the "ethical witness" to the modern "epistemic witness" of post-Enlightenment thought.

Frisch then relates conflicting figures of the witness in various truth-claiming discourses, or critiques or parodies of these (narrators of oriental voyages and voyages of New World exploration; Montaigne's "homme simple et grossier" in "Des Cannibales," Rabelais's Alcofribas Nasier in Pantagruel), to the revolution in concepts of testimony effected by the slow procedural modification of French law in the early modern period. In a fascinating chapter, she shows how the introduction of ecclesiastical, inquisitorial methods of witness-examination in French criminal and civil law paved the way for the privileging of the epistemic aspect of testimony. For example, de Beaumanoir specifies that the opposing party's objections to the ethos (renommé) of witnesses against him must be made before they swear testimonial oaths. In the course of the sixteenth century, however, witnesses came to be examined in secret and their depositions written down before the accused had a chance to lodge objections. This had the effect of transforming the public oath from an act of testamentary solidarity (ethical witnessing) into a promise to tell the truth of one's experience in the forthcoming secret examination to be recorded in writing (epistemic witnessing).

Frisch concludes by offering a provocative analysis of the authenticating strategies and emergent cultural relativism of Jean de Léry's Huguenot Histoire d'un voyage faict en la terre du Bresil and suggests, in an epilogue, that the history of the premodern, ethical witness has relevance for a Lévinasian rethinking...