The Development of the Idea of Testimony

For my double blog post, I watched the classic film 12 Angry Men starring Henry Fonda. The movie is a simple one, but not everybody has a taste for classic cinema, so to sum up, it takes place almost entirely in a single small room with 12 men who are jurors in a case. The trial is over and they now have to decide what to do with the defendant, a boy accused of stabbing his father to death. 11 Men initially are completely convinced of his guilt, and one man refuses to say that he is guilty. Because the jury’s decision must be unanimous, a debate ensues and over time the jurors are slowly, one by one, convinced that the boy cannot be declared guilty. The film ends with the unanimous decision of Not Guilty.

I love the movie and think it’s fantastically acted and written, but it’s also deeply tied to the themes we have been discussing in this class. First off, it seems to bear most resemblance among the texts we’ve talked about, with Aeschylus’ The Furies. Both center around murder trials and contain a jury, testimonies, a judge, and other elements we associate with a trial. 

However, our information of the actual trial comes from the reminiscences of the jurors. We don’t actually see it ourselves. We only see their debate. The most debated about subject that we get, by far, is that of the testimonies given. Testimony is something we have talked about a lot in this class, and 12 Angry Men deals with it in interesting ways. 

We see testimonies given in The Furies, and those testimonies are never doubted or even really examined. Everything that everyone says is the truth and we are never given reason to believe otherwise. We dealt again with the issue of testimony in Death and The Maiden, where testimonies are now in doubt because people’s intentions are now severely in doubt. because of severe emotional stress and having a vested interest in one outcome of the case or another, we can never really be sure wether to believe the two testimonies given about the torture and rape that is being discussed. The witnesses may be lying to get vengeance, or to protect their own hide. We see testimony again crop up as a subject in all of our studies about South Africa and the TRC. In exchange for testimony of the truth of past events, amnesty is granted to those who perpetrated terrible crimes, but we see in Country of My Skull that testimonies often conflict even among people who participated in the exact same event. Testimony is unreliable because people have different perceptions and memory itself is often unreliable. 

12 Angry Men takes this a step further. Testimony again is viewed as being unreliable, but for various reasons. The testimony of the boy, saying that he was at the movies when the murder occurred, is instantly doubted for the same reason testimony was doubted in Death and the Maiden, He could potentially be lying simply to save his own skin. The testimony of the woman who ‘witnessed’ the murder from her apartment across the way is in doubt for the same reason testimony was doubted in one of the events of Country of My Skull, the reliability of her perception and memory was in doubt. 

The man who lived on the floor below the murder has his testimony doubted for an entirely new reason all together. When it becomes apparent from the facts that it is EXTREMELY improbable that the man could possibly have heard or seen what he claims to have heard or seen, the question arises of why? Why is this false testimony being given? It is speculated that the man simply is taking his chance to be important. He has no vested interest in this case, one way or another. He stands to gain or lose nothing by either conviction or acquittal. It would seem that this is the ideal situation from which to expect truthful and unbiased testimony. But 12 Angry Men points out to us that even in such a case, testimony is unreliable. 12 Angry Men is a film that repeatedly makes the point that you simply cannot trust testimony as unchallengeable.

This is is a very troubling and disturbing thing when testimony is such a foundational part of our legal system, and even seems to have its roots as far back as the Greeks and Aeschylus. In that text, testimony was never in question. but the class has slowly built on this idea of testimony as evidence until now, in 12 Angry Men, we get a very similar situation played back to us with a lot more nuance. Logical deduction and reasoning take the place of testimony as the way truth is determined. The testimonies are shown to be unreliable by a process of debate and logical conclusion such as “The old man could not possibly have heard the murder because there was a train passing by that would have covered up the sound.” or “The woman could not have seen the murder because it was dark and she was not wearing her glasses.” 

The unreliability of testimony is a central theme in this movie and I think it is interesting how the idea has developed progressively through the texts we have examined in class. 

Active vs. Reactive

In the first part, I want to express how delighted I am to be reading this book. I love this book and it’s a very welcome change of pace from the often soul-crushingly depressing things we’ve dealt with in this course. I think it’s a breathtakingly beautiful book that manages to do the dance of dealing with the terrible parts of humanity without becoming a part of that terribleness itself.

But more to the point I want to look at the way that the children in the book, Scout Jem and Dill, go about policing each other and forming their bonds. The three of them interact in all sorts of interesting ways. Jem seems to be the leader, and Scout and Dill sort of do this interesting back and forth where at first Scout seems to be the superior but is later kind of slowly supplanted for complex reasons.

Jem falls into the leader position perhaps initially because he is the eldest of the three, but simple age doesn’t seem like much of it. He is the one who comes up with their “plays” and their games and leads them on their merry adventures of prodding the Radley house, rolling in tires, playing Tarzan, and what have you.

Scout for a long while maintains her status over Dill largely by right of seniority, and also perhaps by force. She’s a quarrelsome little girl and it’s well known that she can beat up Dill and probably does so on several occasions, however in spite of this, she winds up falling behind Dill. I think the main reason for this is that Dill comes up with games. It’s his idea to make Boo Radley come out and he begins instigating their plans and their schemes.

Scout is a rather passive character in fact. She is kind of swept up in and carried along by the plans of Jem and Dill, wrapped up in their actions, and at the mercy of Atticus’s decrees. She is very reactive, not often pro-active, and while her position as a girl seems to contribute to her distancing from Jem and Dill in some small way, I think her reactiveness has her falling behind both of them in their small little hierarchy far before that becomes an issue.

This issue is reflected often in the book. The law, the power, the status in the book, generally side with those who are the active participant, rather than the reactive ones. Tom Robinson is reactive against a situation instigated by someone else, Atticus similarly reacts against the situation and loses. Atticus is a very strong character, but often a reactive one, reacting to the town, to his sister, to Scout’s situation at school, and things generally seem to not work out in his favor.

Atticus and Scout are generally reactive characters, and they tend to lose out in their own separate worlds. How exactly this relates to justice, and who the law sides with, I’m not sure, but it seemed an interesting observation.

Collective Guilt

Between the last several readings, I’m seeing a common issue running all through the legal and philosophical issues raised in Eichmann in Jerusalem, Death and the Maiden, Long Night’s Journey into Day, and now coming to a head in Country of My Skull. How do we legally deal with situations where we aren’t sure where to put the guilt and blame?

Obviously this issue existed in the case of the Nazi Holocaust, and so the Eichmann trial butted up against it to some degree. His defense rested on the idea that he acted with no malice and was essentially following orders. This implies a shifting of the blame for his crimes from himself to the collective Nazi party, or at the very least his superiors. But the idea wasn’t fully developed as in fact there was one man on trial and one man punished.

Moving to Death and the Maiden, We again saw a single man on trial (if we may call it that) for his crimes, but it is set against the backdrop of a country that has instituted a truth commission and is unsure how to apply legal blame and punishment for crimes. It is argued by Gerardo that they cannot punish Roberto because the only way the country is able to keep from descending into chaos is by granting general amnesty. There are just too many people implicated in the old regime. Lurking under that whole play is the idea that the entire old Chilean regime is guilty and thus cannot be punished. It’s neither practical nor possible.

Moving to South Africa, this idea finally comes fully out. The entire Apartheid regime has essentially collapsed and lost power, but it’s legacy lives on. The Truth and Reconciliation Commission (TRC) is granting amnesty for crimes in exchange for truthful testimony of them, but for Krog, it is apparent that the real problem South Africa has is that it is so hard to draw the lines of guilt. while there may be relatively few literal perpetrators of the crimes of Apartheid, there are many thousands of beneficiaries of those crimes.

“In a sense, it is not these men but a culture that is asking for amnesty” (Krog, pg 121)

Krog goes on in the same chapter to talk about how people reacted to her presenting her ideas of collective guilt. She tells of several people who called into her radio show, outraged that she was saying that they were guilty of the horrible crimes of apartheid. Their claims were some version of “I am not guilty of the crimes of murder/torture/rape/etc. because I did not commit them. my benefiting indirectly does not make me complicit or guilty.”

Krog seems deeply conflicted about this idea but I think she ultimately decides that there is some level of guilt held by the beneficiaries of those crimes. Personally I am far from convinced that this is true, but leaving that aside for the moment, I don’t think it’s practical or helpful. How can you punish a whole culture? How can you punish people who didn’t actually DO anything? And if you start going down that road, where does it end? If you look hard enough, and carry that idea all the way, aren’t we all then somehow guilty of everything? Don’t we all as people carry the guilt of every terrible thing that has ever happened, simply because we exist in the same broken world as everyone else? If you start with collective guilt, where can you stop? I don’t think you can. And so wether collective guilt is real or not, it seems impossible and impractical for the law to punish. This is a limit to the law. Right or wrong, law doesn’t have the power to walk down that road.

Eichmann Was You But Normal-er

Eichmann in Jerusalem seemed most notable to me for it’s subtitle, A Report on the Banality of Evil. We discussed this in class but I noticed a few passages in the book went undiscussed and so I would like to bring them up here. What was brought up in class was the idea that Banality, as a word, is referring to unoriginality. Some comments being made referenced the fact that while what the Nazi’s did was clearly atrocious and horrible, it is regrettably far from unique in its goals, though it is unprecedented in scope. Certainly this is true and ought to be talked about and dealt with, but something else that was brought up and I think deserves a little more of our time is that this book doesn’t really deal much with the crimes of the Nazi’s as a whole, or as in idea, and deals much more with one man, Eichmann. He is the one who is so unremarkable, so unoriginal. 

Eichmann wasn’t crazy. That’s the problem. He likely wasn’t even unusually malicious. Chapter 2 of the book spends a great deal of time painting a picture of the life of this dull-witted unremarkable desk jockey. He was a mostly unsuccessful man his whole life, who only fell into position because of his family connections, and fell into the National Socialist Party (Nazi’s) more or less the same way. He doesn’t seem to have sought it out, it just sort of happened to him and he went with it. 

Pages 25 and 26 were, for me, the most interesting part of the entire reading. Arendt says

As for base motives, (Eichmann) was quite sure that he was not what he called a…dirty bastard in the depths of his heart.

Eichmann believes, and in fact believes correctly in some sense, that he committed no criminal act, and did the things he did out of no base motives. And what’s more, he isn’t crazy. Arendt goes on on the same pages to say that, 

Half a dozen psychiatrists had certified him as “normal”…his whole psychological outlook, his attitude towards his wife and children, mother and father, brothers, sisters, and friends, was “not only normal, but most desirable.”

Arendt touches on the significance of this in her epilogue. She states that it is an almost axiomatic principle of modern legal systems that, for a crime to be committed (and therefore punished), there must be on some level the intent to commit a crime. She says on page 277

Where this intent is absent, where, for whatever reasons, even reasons of moral insanity, the ability to distinguish between right and wrong is impaired, we feel no crime has been committed.

Eichmann had no such intent. No such conceptualization that he was doing anything either criminal or morally reprehensible. And as established, he was quite sane. 

The significance of this cannot be overstated. The worst crimes in history were committed by men and women who truly did not believe they were doing anything wrong. Who did so with no malice. How can we hold guilty before the law someone who did not have the desire to commit a crime or the knowledge that they were doing so because in fact, under their laws, they were not? 

And yet we must. 

So a completely normal man, an unoriginal, banal man, not at all unlike you or I, perpetrated in, supported, and carried out the Holocaust. And he did so without any base feelings of rage or hate or malice, and technically committed no crime to do so. That’s hard to deal with. 

Inconsistencies in Harris’ “Whiteness as Property”

I understand that these blog posts are meant to be relatively short, but the more I looked at the essay given to us, the more it seemed deeply flawed to me in ways we did not have time to go over in class. I realized I had a great deal to say about it and this seemed the place to put it.

Harris makes the argument that “whiteness”, the racial identity of a person as ‘white’ is a form of property in America. To this end she presents several statements that explain exactly what she means. I think these statements are key to understanding the deep logical and ethical problems with her essay and her arguments. She claims,

“Whiteness — the right to white identity as embraced by the law — is property if by “property one means all of a person’s legal rights” (pg. 280)

“Property is nothing but the basis of expectation…consist[ing] in an established expectation, in the persuasion of being able to draw such and such a benefit from the thing possessed.” (pg. 280)

“…those expectations in tangible or intangible things which are valued and protected by the law are property.” (pg. 280)

She further makes a claim that I think is the beginning of the flaws of the essay.

“Although the existence of certain property rights may seem self-evident, and the protection of certain expectations may seem essential for social stability, property is a legal construct by which selected private interests are protected and upheld.” (pg 280)

“It is contended that property rights and interests are not “natural” but “creation[s] of law”.” (pg 280-281)

Harris has essentially done away with ideas of natural law here. Her fundamental ideological claim is that there is no natural law behind things and all of our conceptions of race, identity, and rights are in fact social constructs created by and protected by an arbitrarily constructed human system of laws meant to protect a single groups interests. If we take her statements “whiteness is property of by property one means all of a persons legal rights” and “property is a legal construct” side by side, this becomes painfully apparent.

She doubles down on this point in statements made later in the paper. She vehemently attacks the ideas of natural law and paints them as hypocritical and destructive when she references their usage. She says

“The laws did not mandate that blacks be accorded equality under the law because nature—not man, not power, not violence — had determined their degraded status” (pg. 286)

However, Harris quickly contradicts her initial ideology, stumbling into logical inconsistency. Her entire argument is based on the idea that the treatment of blacks was unethical and transgressed their rights. However, the idea that rights and racial identity are arbitrary social constructs, not the product of natural law, CANNOT be held logically at the same time as the idea that the laws are transgressing the rights of any person or group. It just doesn’t work. If rights are created by the law, then the law cannot possibly fail to recognize someone’s rights because they have no rights unless the law says they do. 

You cannot say that the law is failing to recognize rights unless you admit that there is a source of rights which is not the laws of men, and which supersedes the laws of men in a fundamental way. Unless you admit the existence of natural law. But Harris does just that. As we have seen, she has denied the existence of natural law and has attributed the existence of rights to the arbitrary laws of men. There are no “rights”, there is only the interests which the law either protects or does not protect. But in her own essay, Harris laments what she sees as an unjust state of affairs in the modern world and says,

The existing state of affairs is considered neutral and fair, however unjust and unequal it is in substance” (pg. 287)

You cannot attack the idea of fairness, of natural law, and then expect to be able to use fairness in your own defense. 

Furthermore, Harris seems to have no qualms whatsoever in appropriating the racial categories she so denounces to make her own points and advance her own ends. She spends some of page 283 and most of page 284 criticizing the way that the American judicial system created the racial distinctions of “White” and “Black” or “Native American”. She finishes the section by saying

In the realm of social relations, racial recognition in the United States is thus an act of race subordination. In the realm of legal relations, judicial definition of racial identity based of white supremacy reproduced that race subordination at the institutional level. In transforming white to whiteness, the law masked the ideological content of racial definition and the exercise of power required to maintain it: “It convert[ed] and abstract concept into [an] entity (pg. 284)

On the very next page, Harris quotes Du Bois, saying 

[whites] were given public deference…because they were white. They were admitted freely with all classes of white people, to public functions, to public parks…The police were drawn from their ranks, and the courts, dependent on their votes, treated them with…leniency…Their vote selected public officials, and while this had small effect upon their economic situation, it had great effect on their personal treatment…White schoolhouses were the best in the community, and conspiculously placed, and they cost anywhere from twice to ten times as much per capita and the colored schools. (pg. 285)

She repeatedly uses statements just like this to pain a picture of her supposed current and past white privilege. And lest it be said that she is simply describing the unfortunate state of things, not advocating it’s continued existence, It bears mentioning that there is perhaps no system in law today that more codifies the existence of and differing social status of the racial groups that she so disdains than affirmative action.

She goes on to continue her criticism of white privilege in modern society, which also keeps maintaining the existence and veracity of the racial boxes she criticizes the existence of. She says 

Nevertheless, whiteness retains it’s value as a “consolation prize”: it does not mean that all whites will win, but simply that they will not lose, of losing is defined as being on the bottom of the social and economic hierarchy—the position to which blacks have been consigned (pg. 286)

To begin with, this statement seems just utterly untrue. Being white or black makes no difference whatsoever in the life of a homeless alcoholic drug addict who is sleeping in a gutter and eating trash. To claim that white people cannot fall to the bottom of the social and economic hierarchy seems to be either inexpressibly naive, or more likely deliberately misleading. 

Secondly, she has again rushed to the use of these exact same categories of whiteness and blackness to make her point. She paints the modern world as existing in this way. Far from arguing for the dissolution of these categories, her every statement validates their existence, making ready use of them. One can’t help but see it as disingenuous at best. 

Perhaps the most puzzling of all, Harris claims on page 286 

White workers often identify themselves primarily as white rather than as workers because it is through their whiteness that they are afforded access to a host of public, private, and psychological benefits.

This statement seems so impossibly ludicrous to me that I scarcely know how to interface with it in a logically coherent manner. But, here goes. Racial identification in the workplace is something that is asked and/or required only in light of affirmative action these days. It isn’t white supremacists who made it a requirement for job applications to have those “voluntary” self identification forms on them. Furthermore, I invite anyone who has worked many working class jobs, as I have, to think if they have ever heard anybody going around talking about how wonderful it is to be white, how proud they are of their whiteness, how it is their whiteness that defines their life, rather than their job (or anything else for that matter), or touting the benefits accorded to them as white. The only time anybody in those positions ever asks a worker to racially identify is when affirmative action requires them to do so.

Harris also makes claims that seem to me to be obviously untrue about how the law deals with racial minorities and what she calls “oppressed” groups. Harris states

“[The law] has refused to recognize group identity when asserted by racially oppressed groups as a basis for affirming or claiming rights.” (pg. 287)

As we’ve already discussed, Harris doesn’t believe in rights and has no business talking about them at all, but even if she did, this statement would still be nonsense. The Civil Rights Act of 1964 does this implicitly and explicitly. The Fifteenth Amendment to the U.S. Constitution reads

“The right of citizens of the United States to vote shall not denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.”

More examples could be provided, and easily at that. Her statement is obviously untrue at every single level of government.

The logical and moral inconsistencies of Harris’s arguments are most clearly visible in her closing ideas about affirmative action. She says, 

“[Affirmative Action] directly confronts the notion that there is a protectable property interest in whiteness” (pg 289)

If property is nothing but the expectation of being able to draw some advantage from the thing possessed, as Harris claims on page 280, then what Affirmative Action is doing is not in fact confronting the idea that there is a protectable property interest in whiteness, unless by that you mean it creates a protectable property interest in blackness (or other racial minority-ness). It creates an advantage, defined and protected by law, extended to those of racial minorities, which they can expect to draw from their racial “property”/identity. It hasn’t changed the idea at all, just taken the same tool Harris protests against and uses it again, this time in her favor. It isn’t morally superior, it is just the other side of the same coin. 

Her justification for doing so is found on pages 288-289. She claims

“Fundamentally, affirmative action does not reestablish a property interest in blackness because black identity is not the functional opposite of whiteness. Even today, whiteness is still intertwined with the degradation of blacks and is still valued because “the artifact of ‘whiteness’…sets a floor on how far [whites] can fall.” Acknowledging black identity does not involve the systematic subordination of whites, nor does it even set up a danger of doing so. Affirmative action is based on principles of antisubordiantion, not principles of black superiority.”

What is hiding behind this storm of confusing words is the core idea that “It’s wrong for white people to view their racial identity as property because they did/do it as a means to oppression of blacks. It’s okay for black people to view their racial identity in the exact same way (we won’t use ‘property’ to describe it), because they are the oppressed.”

No.

That’s not how logic works.

That’s not how morality works. 

You cannot claim that it is wrong for one people to encode their racial identity into law to draw advantages from it, and then allow another race to do so. This is the very definition of racism, which she is claiming to denounce while she actively advocates doing something she has claimed is racist. By her own logic, by her own definitions, she is deeply inconsistent with her own ideas of property and racial identity.

Symbols of Ideals

The story of The Furies in the play we read in class ends on a very interesting note that raises many questions I don’t really know how to answer. In the end, Orestes is acquitted of the charge of matricide when the vote of the Athenian mortals is split evenly and Athena’s deciding vote falls in his favor. Orestes swears the everlasting devotion of himself and his people to Athena and Apollo and his friendship to the people of Athens, and then exits the stage. 

Remaining for the conclusion of the play and the final act in the drama is the goddess Athena and The Furies. Their exchange is strange to me. Athena is the patron goddess of Athens. She represents culture, wisdom, strategic warfare, and the arts. In a symbolic sense, Athena IS Athens. She is the embodied spirit of the city and it’s people and the ideals they (literally) deify. 

So the goddess, the spirit of the city conceptualized and embodied, has sat as high arbiter of the dispute and has ruled in favor of Orestes. And yet The Furies demand for their right of vengeance is something she cannot deny and instead must appease. Just as Athena symbolically represents the ideals of wisdom and culture/civilization, The Furies are the embodied representations of hatred, pain, and vengeance. Rather than rebuking and banishing The Furies, the play ends with Athena acknowledging their right and appeasing them by giving them a position of high honor in the city.

The play is carried out by these larger than life, mythological symbolical figures. So what does it mean that the embodied spirit of wisdom, the embodied spirit of the city itself, decides to acknowledge the right of vengeance and exalt it and honor it within the city? 

Vengeance is in the end thwarted at the hands of Wisdom, but is given a high and honored position within the city in order to secure peace. I believe this is the theory of the play; the supposition it is making about the nature of justice. The play believes that vengeance is real and powerful and cannot be denied. It must be respected and honored if peace is to be secured, but it must always be ruled over by wisdom, and cannot always be indulged if the proper conditions for redemption and mercy have been met, as they were by the sacrifices of Orestes.