TRIAL AND ERROR: COMPARING LEGAL AND HISTORICAL (RE)CONSTRUCTIONS
Fall Term 1994
Istvan Rev
Department of History
CENTRAL EUROPEAN UNIVERSITY



Course Description

The topic of the course and the texts it intends to analyze are at the intersection of legal and historical reasoning. The intention is to examine the relationship between legal and historical reconstruction, focusing on trials which in themselves are considered specific re-constructive events. We will examine case studies of historical events constructed, reconstructed and reinterpreted either in the course of a trial or in historical narratives which use trial docents as sources.

As trials in the framework of their ritualized, sanctioned by tradition, procedures create authoritative versions of events, they seem to be appropriate forums for closing down historical events and/or producing historical revisions. Sometimes stories which surface spontaneously are finalized and proved in the course of the trial and then circulate as authenticated versions backed by legal evidence. When historical scholarship cannot succeed in constructing an acceptable interpretation of the recent past, the trial could serve as a means of "writing history" by other means. History can serve as an effective means of political legitimisation especially if historical revision is backed by a verdict. And "historical trials", i.e. trials which have the ambition to re-interpret history by the help of their ritualized i.e. civilized format, can help contain the very violence which either preceded, accompanies or is enacted out in the trial itself.

The setting and script of a trial produces dramaturgy which is loaded with inherent tensions. Legal and historical techniques of persuasion and narration strengthen, weaken or counterbalance each other with a constant interplay' of two time frames; two parallel events unfold simultaneously - the time of the actual trial and that of the past event.

The story is not simply resurrected, but actively created in the course of the trial. The story is not found or uncovered, but fabricated. Reconstruction - which is in fact construction - naturally does not begin at the trial, rather in the pre-stages depositions, gathering of evidence, investigative reports etc.

In the course of a trial a specific story is constructed to fit into a concrete, legal context Legal construction Dames elements of a narrative. Nothing can be made intelligible unless is translated into a legally understandable category. Courtroom historical reconstructions center around problems such as "responsibility", "guilt", "innocence" etc. In courtroom reconstructions, the past is necessarily individualized because of the very fact that concrete persons singled out as representatives of past deeds. The trial attempts to place the individual in the center of the story even if the individual is assigned a symbolic role in the story.

The story constructed in the courtroom is the product of contradictory yet collaborative efforts. While the prosecution aims at constructing an authoritative, closed, final Story, the defense is engaged in countering these conserve efforts by constructing a negative story. Both of them try to convince an audience - the judge or the jury, and it is the judge's role to approve a story's status of authenticity. The verdict gives the final form of a (re)construction.

The courtroom situation is a constraining factor for all parties and an influence on the evolving narrative. The physical setting and the courtroom architecture which defines the plane and the role of the participants, structures the dialogues, and in itself shapes the story. The discourse is defined, not chosen and thus determines what can and should be said. The dialogue is asymmetrical - those who have authorization decide who can speak, how long, about what and in what way.

The Legal language used in the trial is a given. Only those elements of the emerging story seem to be relevant which can be expressed by the help of legal terminology. A permanent process of translation is going on in the course of which certain parts of the story are dropped or redefined. The professionals - prosecutors, defense lawyers, judges, expert witnesses - have the right to determine the language and thus shape the story. The construction proceeds not only through statements which are made, but also through suggestive or provocative questioning.

Traces left after a trial are made accessible by notaries - Scribes" - usually employed by the legal institution. Whatever remains has been translated, even edited ("Strik from Record"). Thus when a historian uses court documents as sources, then she/he is working from a translation of an interpretation The historian creates a reconstruction in the mirror of the dial of events (re)constructed at the trial It is a translation of a translation, an interpretation of an interpretation. Then whose voice do we hear? It is the historian who gives voice to the protagonists. The language lies dormant until the historian arrives on the scene - the actors speak through her/him.

With the additional presence of the historian, another time frame is added, the time of another (re)construction. At the end we have four time frames, the time of the (re)constructed event, the time of (re)consecution in the courtroom, the time of the historian's writing and the time of reception - the reinterpretation by the audience. What story do we read?

Case Studies


Authenticating Spontaneous Constructions
The Inquisition

Tedeschi, John. "Inquisitorial Law and the Witch." In Early Modern European Witchcraft. Edited by Bengt Ankarloo and Gustav Henmngsem Oxford, 1990.
Ginzburg, Carlo. "Inquisitor as Anthropologist". In Clues. Myths and Historical Method. Baltimore, MD, 1989.
Ginzburg, Carlo. "Lepers, Jews, Muslims" In Ecstasies - Deciphering the Witches' Sabbath. London, 199Z.
Ruben, Miri. "The Making of the Host Desecration Accusation: Persuasive Natratives, Persistent Doubts." Seminar presentation at the Davis Center, Princeton University, 1993.
Ginzburg, Carlo. "Checking the Evidence." Critical Inquiry (Autmnn 1991), p.79-92.

Containing Their Own Violence
The Trial of Louis XVI

Walzer, Michael. "The Speeches of Condorcet, Marat and Saint-Just". In Regicide and Revolution. New York, l992.
Feher, Ferenc. 'Revolutionary Justice." In Micheal Walzer. Regicide and Revolution. New York, 1992.
Hunt, Lynn "The Band of Brothers." In The Family Romance of the French Revolution , Berkeley, 1992.

Competing Historical Re-constructions
Lucaites, John Louis. Constitutional Argument in a National Theater. The Impeachment Trial of Dr. Henry Sacheverell. In Harimean, Robert ed Popular Trials. Rhetoric, Mass Media, and the Law.

Political Legitimization in the Courtroom
Soviet Show Trials

Conquest Robert "The Great Trial." In The Great Terror: A Reassessment. London, 1992.
Koestler, Arthur. Darkness at Noot

Framing the Adversary
Show Trials and Pornography

Rev, Istvan "In Mendacio Yeritas" in Lies There Lies the Truth." Representations (Summer l991), p. 1-20.
Hunt, Lye "The Bad Mother" and "Sade's Family Politics. In The Family Romance of the French Revolution, Berkeley, 1992.
Hunt, Lynn. "The Many Bodies of Marie Antoinette: Political Pornography and the Problem of the Feminine in the French Revolution." In Eroticism and Bodv Politic. Edited by Lynn Hunt. Baltimore, MD, 1991.

Constructing a Historical Grand Narrative
The Nuremberg Trials

Taylor, Teleford, "On Trial." In The Anatomy of the Nuremberg Trials. New York, 1992.
Deak, Istvan., "Misjudgment at Nuremberg." The New York Review of Books (October 7, 1993).

Making Sense of the Incomprehensible
Arendt, Hannah "The House of Justice", "The Accused", Evidence and Witnesses" and "Judgment, Appeal, and Execution." In Eichman in Jerusalem: A Report on the Banality of Evil. London, 1963.
Vidal-Naquet Pierre: "A Paper Eichman" In Assassins of Memory. New York, 1992.
Browning, Christopher. German Memory, Judicial Negation, and Historical Reconstruction, Writing Perpetrator History from Postwar Testimony." In Probing the Limits of Representation Edited by Saul Friedlander. Cambridge, MA, 1992.

Writing Zeitgeschichte by Legal Means
Retroactive justice

Offe, Claus. "Disqualification, Retribution, Restitution: Dilemmas of Justice The trial of NicoLse Ceausescu
Vldeo of Ceausescu's "Trial"

Who rules the story?
Documents of trials in progress concerning the open-fire on the crowd at the Hungarian Parliament building during the 1956 Revolution in Hungary.

Trials and Reversed Trials
Joan of Arc

Kelly, Ansgar. "The Right to Remain Silent: Before and After Joan of Arc." Symposium on Text and Texture of History Modern Readings of Premodern Society and Culture 600-1600. UCLA, May 18-22.
Semiotics of the Court-room Drama Goodrich, Peter. Ides of Law. pp. I79-208.

Course Requirements and Evaluation:


The participants of the class are asked to prepare 1-2 pages long "position-papers" on the case-studies for each class, that will form the basis of in-class discussion.
Students will write a relatively short paper for midst, and a longer final essay at the end of the first trimester.
Grades will be determined on the following basis: 50% class work and position-paper 20% mid-term par 30% final essay.




CRC-Curriculum Resource Center
CEU Budapest, Hungary
Revised: April, 1996


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