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

Abstract

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. But the panorama is merely agglutinative – the fragments do not congeal into one perfect, self-evident totality. And an offhand remark amongst the lectures 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 mêchanoen technas, the machinations of technique, it is because our ultimate condition with regard to the overwhelming is amêchanôs, aporos, resourceless and without means.

Citation

FitzGerald, M. (2004), "6. CHARACTER EVIDENCE AND THE LITERATURE OF THE THEOPHRASTAN CHARACTER: A PHENOMENOLOGY OF TESTIMONY", Kenyon, A. and Rush, P. (Ed.) Aesthetics of Law and Culture: Texts, Images, Screens (Studies in Law, Politics, and Society, Vol. 34), Emerald Group Publishing Limited, Leeds, pp. 133-153. https://doi.org/10.1016/S1059-4337(04)34006-8