6. CHARACTER EVIDENCE AND THE LITERATURE OF THE THEOPHRASTAN CHARACTER: A PHENOMENOLOGY OF TESTIMONY

DOIhttps://doi.org/10.1016/S1059-4337(04)34006-8
Publication Date30 December 2004
Pages133-153
AuthorMichael FitzGerald
6. CHARACTER EVIDENCE AND
THE LITERATURE OF THE
THEOPHRASTAN CHARACTER:
A PHENOMENOLOGY OF
TESTIMONY
Michael FitzGerald
Thou com’st in such a questionable shape
That I will speak to thee – Hamlet I.iv, pp. 43–44.
INTRODUCTION – ETHICS, TRUTH, OTHERS
In the drama of the evidentiary process, it would hardly be thought exceptional
that the judge’s intuition of the formal order of things – which is to say, their
sufficient standing-to-reason – should falter when confronted with the sprawling
and confused immediacy of stubborn matter-of-fact. The circumstantial given is
a bewildering Gordian Knot of data; the analytic legerdemain of localising our
attention and following one of its threads cannot reduce the tangle into which
it soon recedes. And in comparison to the knot’s multiplicity, our scope for
unifying abstraction, or “large-scale” comprehension, is limited and flickering. We
possess fragments of intuition, and fragments of formal connection between these
fragments.Butthepanoramaismerelyagglutinative– the fragments do not congeal
into one perfect, self-evident totality. And an offhandremark amongst the lectures
An Aesthetics of Law and Culture: Texts,Images, Screens
Studies in Law, Politics, and Society,Volume 34, 133–153
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ISSN: 1059-4337/doi:10.1016/S1059-4337(04)34006-8
133
134 MICHAEL FITZGERALD
of Alfred North Whitehead suggests that this defect is of more than methodological
significance – even when one takes one’s example from arithmetic: “the snippet
of knowledge that the addition of 1 and 4 produces the same multiplicity as the
addition of 2 and 3, seems to me self-evident” (Whitehead, 1968, p. 47). And yet
we would disclaim any such self-evidence were larger numbers involved – only
skeptically could we hazard a guess. So, he continues, we have recourse to “the
indignity of proof,”securing our opinion through the rationality of calculation. Nor
is it so much that proof and method are chastening of themselves – the nemesis,
the sting of the creatural condition is rather having to prove, the imperfection of
finite judgment and the infinite possibility of perfecting it. This predicament was
already known to Sophocles; if humanity “holds out” against the overwhelming by
its inventiveness, by finding a means in to mˆechanoen technas, the machinations
of technique, it is because our ultimate condition with regard to the overwhelming
is amˆechan ˆos, aporos, resourceless and without means.
This Indignity of Man would be older than the dignity in which Pico and the
humanists famously confirmed him. It belongs not to that moment in which he
finds himself free to value and do in accordance with an undetermined nature,
voluntarily disposing his actions toward the possibilities of a world which theycan
alter. Rather,the exigency to do justice to the truth is first articulated in the original
moment of this truth’s givenness, and in our orientation to the world as given.1At
trial, the quaestio quid facti is certainly separable from the quaestio quid juris, both
in procedural form and by the logic of “relevancy.”2Suppose one were to ascribe
a deontological content to the purely opinionative dimension of the judgement,
the doxa – it would only be in view of the decision or ruling, the kerygma, for
which knowledge of the circumstances is merely a suppositum. And because of the
positivist paradigm on which the evidentiary process must therefore be instituted,
the more urgently we subscribe (with Bentham) to the paramountcy of “rectitude
of decision,” the more we subsume the question of fact into a techno-mechanical
model of scientific observation – the demand for “objectivity” determines the
purely doxic moment of human experience as apathetic and disinterested.Or
again: qua opinion, truth per se would be ethically neutral, its significance entirely
deferred to the evaluations it informs and the actions it implements.
This framework must be contested. Truth is not, for the arbiter of fact, merely
a discovery or disclosure, preliminary to the “application” of juridical norms
– it has its own interest, quite apart from the decision of right. Likewise, the
fallibility of opinion before a “mass of mixed data bearing on a single alleged fact”
(Wigmore, 1913, p. 83) is not simply a supplementary consideration, to be tallied
against each inference as a “margin for error” – more than this, fallibility is the
arbiter’s conscience qua the “repugnance” of finitude and doubt. An interest in
truth asserts itself in that irrefragable interval between the external given and its

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