Vol. 12 No. 11 (November 2002)
THE JURIDICAL UNCONSCIOUS: TRIALS AND TRAUMAS IN THE TWENTIETH CENTURY, by Shoshana Felman. Cambridge: Harvard University Press, 2002. 253 pp. Cloth $45.00. Paper $19.95. ISBN 0-674-00951-7.

Reviewed by Austin Sarat, Departments of Law, Jurisprudence & Social Thought and Political Science, Amherst College.

Shoshana Felman’s THE JURIDICAL UNCONSCIOUS: TRIALS AND TRAUMAS IN THE TWENTIETH CENTURY is a wonderful contribution to interdisciplinary legal scholarship generally and to the study of trials in particular. Drawing on a variety of theoretical sources from history, literature, psycholanalysis, and political theory, Felman’s book describes and analyzes two of the most celebrated trials of the twentieth century–the trials of Adolph Eichmann and of O.J. Simpson. She eschews the usual historical or legal analysis, preferring instead to see trials as moments in which trauma enters law. Felman theorizes the celebrated trial, or at least trials in which homicide if not genocide is the subject, as moments in which the expressionless seek voice and in which law confronts its own inability to give them a voice. In these cases, Felman argues, “the court either intentionally gives a stage to the expressionless of history or unintentionally and unconsciously enacts the expressionlessness and is forced to witness it and to encounter it: legally to deal with it.” (P. 14)

Others who have written about celebrated trials have pointed in the direction that Felman has now fully articulated, but no one has pushed the analysis of the unconscious of the trial in the fruitful ways Felman has. Not everyone will be sympathetic to her arguments/analysis, but it is fair to say that no one working at the intersection of law and social science can afford to ignore them. Not only do they provide a theoretical lens that has been missing in the analysis of trials, they show Felman to know the details of the trials about which she writes. She has a firm handle on the legal meaning and nuance of those trials. She sacrifices nothing in the way of legal sophistication to achieve her theoretical objectives.

THE JURIDICAL UNCONSCIOUS begins with a reading of Walter Benjamin. More and more legal scholars are turning to Benjamin, parsing his dense and difficult essay on the critique of violence for its insights about the various forms of law’s intimate connection to violence. Felman turns to Benjamin for another purpose, to examine his thought about the connection of history and justice or, more precisely, about how the claims of justice speak in and through history. In her view, one of the urgencies of law in the late twentieth century was “to put history on trial.” (P. 11). Nuremberg was, she suggests, the turning point. It changed our conception of what law and trials could and should do.

The Eichmann and Simpson trials are two inheritors of the mandate of Nuremberg. The former put on trial the Nazi persecution of the Jews, providing a chance for history to confront the stark, human reality of genocide. The Simpson trial pivots on the complex histories of oppression of African-Americans and battered women. Felman argues, with great force, that Benjamin anticipated these trials, highlighting in his writing the power of claims to justice in the name of the oppressed. She uses and develops his idea of the expressionless to capture the complexity of that project. “The expressionless,” she notes, “is...an utterance that signifies although and because it has no possibility of statement.” (P. 13)

>From Benjamin, Felman turns to the Simpson trial. And indeed one of the great achievements of this book is that Felman has found something new to say about that event in American history. She finds it by reading the Simpson trial through the lens of Tolstoy’s classic THE KREUTZER SONATA, the story of a man who murders his wife out of passion, rage, and jealousy. She argues that the story exposes the cultural wounds which the Simpson trial would be called upon to confront. Moreover, THE KREUTZER SONATA reminds us that what trials cannot see is always close to the heart of what makes them work and yet be inadequate to the traumas to which they speak.

Indeed in Felman’s view celebrated trials depend upon repetitions, repetitions within the trial and between the trial and the history within which it is embedded. Repetition is the essential structure of trauma, and trauma is, in Felman’s view, what law has to come to terms with. The reading of Tolstoy helps Felman expose the blindness of the law, its inability to see in the face of the trauma that surrounds it. Because the law is often blind to, or blinded by, trauma, judicial cases become legal traumas in their own right, “bound to repeat itself through a traumatic legal repetition.” (P. 57) The Simpson trial, Felman suggests, “was the trial of the century because it revealed precisely an abyss...the case...has claimed its unique status of the trial of the century because we still cannot decide...what the trial was about.” (P. 93)

>From the Simpson case Felman moves back in time to Eichmann. This is, I think, one of the key strategic choices in the book. By reversing the linear historical chronology of these two trials she performs one of the lessons she seeks to teach, namely about the undecidability of history and the way trauma shatters ordered temporality. Her discussion of the Eichmann trial is animated by Felman’s rich engagement with Hannah Arendt’s classic EICHMANN IN JERUSALEM. She sets her reading of the trial against Arendt’s defending, contra Arendt, the Israeli state’s vision of the trial and in holding out the possibility of a legally adequate response to Eichmann’s crimes. Felman claims, recalling her previous discussion of the expressionless, that the Eichmann trial provided the dead the chance to speak, to become the accusing voice. The tension in the trial involved the question of whether the prosecution could give voice to the unarticulated, but perhaps not unarticulable, accusations of the dead.

Felman claims that the Eichmann trial was “historiographically conservative but jurisprudentially revolutionary.” (P. 122) It is the former because of the force of trauma which speaks through it. It is “imprisoned in the endless repetition of a catastrophic past.” (P. 122). It is the latter because it dramatically expanded the space for moral deliberation even as it struggles to create “a language that is not yet in existence.” (P. 123) In the end, Eichmann’s trial created a new way of seeing the task of legal justice for the modern period, a way of engaging with historical trauma all the while being imprisoned by the very traumas with which it is engaged.

This kind of imprisonment is exemplified in one particularly compelling episode of the Eichmann trial that is the focus of Felman’s expended and insightful reading, namely the interrupted testimony of a witness, called K-Zetnik. His testimony was interrupted when, pressed to recall the name by which he was called in the concentration camps, he fainted on the witness stand. The image of this man passing out, as if in some unarticulated communication with the dead, was played and re-played on Israeli television. It became a kind of signature for the work that the Eichmann trial was trying to do. As Felman sees it, this trial was trying to capture the trauma of history, the “last gaze of the departed, the exchange of looks between the dying and the living in the very moment in which life and death are separated.” (P. 147). Instead of seeing the fainting spell as the mark of the limits of law, Felman reads it as a signification of the aspiration of law. “At the heart of the unmastered past, the trial tries to master an abyss.” (P. 151)

In her reading of the Eichmann trial, as of the Simpson trial, it is the impossibility of telling that Felman argues marks the heart not the boundary of law’s engagement with trauma. It is this impossibility that, she suggests, speaks most powerfully about the work that law does in the face of traumatic history, moving expressionlessness from margin to the center.

Felman’s book is remarkable in its sophistication and in the boldness of its conceptualization of what she calls “ the juridical unconscious.” Her way of thinking and writing makes demands on her readers, asking us to leap the boundaries of disciplines and to make the kind of inferential leaps that social scientists often refuse, on principle, to make. Yet the promise of Felman’s approach in opening up a new conversation about the way law speaks to and about historical injustices is well worth taking the kind of leaps that her work demands.

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Copyright 2002 by the author, Austin Sarat.