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References
William Blake,The Marriage of Heaven and Hell (London: Oxford University Press, 1975), 5.
Sir Rupert Cross,Cross on Evidence (London: Butterworths, 1990), 1.
Richard Rorty,Philosophy and The Mirror of Nature (Oxford: Princeton University Press, 1988), 1.
The polarization between presence and representation is analysed within a consideration of the hierarchical role of speech (presence) over writing (absence, representation), by Jacques Derrida. SeeOf Grammatology, trans. G.C. Spivak (London: The Johns Hopkins University Press, 1976). Derrida argues that this structure is essential to the understanding of western metaphysics, to logocentrism. Derrida, furthermore, repeatedly states that the process of deconstruction “must neither reframe nor dream of the pure and simple absence of the frame. These two apparently contradictory gestures, systematically inseparable, are the very functions of what is being deconstructed here.”The Truth in Painting, trans. Geoff Bennington and Ian McLeod (Chicago: University of Chicago Press, 1987), 73.
Practitioners and academics alike seem largely to acknowledge a more liberal, practical approach. P. Murphy includes these arguments inA Practical Approach to Evidence (London: Blackstone, 1980). W. Twining argues that within the pragmatic scheme of things, evidence should not be further constrained by the artificial rhetoric of lawyers. See “Some Scepticism about Some Scepticism”,Journal of Law and Society 11/2 (1984), 137–171. Pitched at a more interesting level, see also B.S. Jackson,Law, Fact and Narrative Coherence (Merseyside: Deborah Charles Publications, 1988), in which he argues that facts can be constructed according to coherent models of story telling — a “narrativized pragmatics”.
Murphy,supra n.6, at 1–2
Murphy,supra n.6, at 6
J. Bentham, quoted in the frontispiece to W. Twining,Theories of Evidence: Bentham and Wigmore (Stanford: Stanford University Press, 1985).
David Levin argues that the Heideggerian notion of aletheia inevitably entails a visionary experience as truthing. SeeThe Opening of Vision: Nihilism and the Postmodern Situation (London: Routledge, 1988). The debate seems to be between a Platonic concept of truth as agreement, and the Heideggerian notion of truth as revelation. Derrida's argument is to prolong a Heideggerian interpretation in deconstructing the difference between the two. See Rodolphe Gasché,Tain of the Mirror: Derrida and the Philosophy of Reflection (London: Harvard University Press, 1986), 265.
Heidegger,The World Picture, quoted by Levin,supra n.15, at 423
Lord Mansfield,Berkely Peerage Case [1811] 4 Camp. 401.
SeeR. v.Maqsud Ali [1966] 1 Q.B. 688. See also US Federal Rules of Evidence which prohibit any out of court assertions made by the witness herself. Not only should the sayer of the statement be present in court, but she should also be seen to be making that statement. Even under English law an oral statement made under oath may be excluded by the hearsay rule if given on a previous occasion and not subject to cross-examination. See Civil Evidence Act 1968 s.2(2).
Murphy,supra n.6, at 156
Blackstone,Commentaries III. xxiii. See also Magistrates Courts Act 1980 s.105.
The warning given to the jury in identification cases is the Turnbull warning set out by the Court of Appeal inR. v.Turnbull [1977] Q.B. 224.
Walter Benjamin, “Art in the Age of Mechanical Reproduction”, inIllusions (London: Fontana, 1973). Herein lies a paradox: the photograph always maintains the same truth, but also brings to the surface variations of that truth.
F. Nietzsche,DayBreak: Thoughts on the Prejudices of Morality (Cambridge: Cambridge University Press, 1982).
M. Foucault,The Order of Things: an Archaeology of the Human Sciences (New York: Random House, 1973).
Roland Barthes,Camera Lucida (London: Fontana, 1984), 12.
Truth in Painting, supra n.5, at 11.
Sir Mathew Hale,History of the Common Law of England (Chicago: University of Chicago Press, 1975).
Ibid. The High Court of Chivalry was primarily concerned with the settlement of disputes as to heraldic or armorial bearings, administering justice to those matters which are not governed by the common law. It is also interesting to note the excessive use of visual minutiae; commissions were heard by commissioners in the presence of a Notary (registrar), who in turn had to authenticate the evidential document with the intricate notarial sign — flourished pen work, the notaries own initials, the obligatory Latin motto, with frequently the addition of an ecclesiastical ‘wafer’ seal. The evidence is then ‘returned’ to the Painted Chamber of the Palace of Westminster. This, of course, is not the only example of an exception to the rule against hearsay, which is admissible due to the guarantees provided by visual detail, simply an interesting one. But see Criminal Justice Act 1967 s.9, where written statements are excluded from the hearsay rule if, amongst other conditions, the statement bears that visible trace of authorship — a signature.
See R. Barthes,Image Music Text, trans. Stephen Heath (London: Fontana, 1982), 19.
Barthes uses the word ‘significance’ rather than ‘signification’ to describe this mercurial, poetic, ‘blissful’ process of the text. Although he also makes the distinction between the texts where he would find ‘bliss’ or ‘jouissance’, and those other ‘readerly’ texts. SeeThe Pleasure of the Text, trans. R. Miller (London: Jonathan Cape, 1976); a marvelous piece of prose on the feeling of ‘jouissance’. Also see “The Theory of the Text”, inUntying the Text, ed. Robert Young (Routledge, Kegan & Paul, 1981) onsignificance. InCamera Lucida, supra n.29, Roland Barthes,Camera Lucida (London: Fontana, 1984), 12 Barthes uses a similar strategy in defining the grip of photography (significance) as ‘punctum’, and its cultural signification as ‘studium’.
R. Barthes, “The Metaphor of the Eye”, in George Bataille,The Story of the Eye (London: Penguin, 1979).
Supra n.34. Pheno-text, for Barthes (a term borrowed from Kristeva'sSemiotika), designates the physical, closed, unyielding text/textual production. The geno-text provides a reading at an infinitely more generous level, emotional, yielding, fluid, ero-genous.
See J. Derrida, “Signature Event Context”, inMargins of Philosophy, trans. A. Bass (Chicago: University of Chicago, 1982).
Traditionally writing is seen to be only as a supplement to speech. InOf Grammatology, supra n.5, Derrida argues that the whole of Western metaphysics is constructed on these two opposing modalities, but that it does not simply hold that these are contrasting forms of experience. Rather, speech and writing, vision and writing, presence and absence are held in hierarchies, the first above, or before the last.
André Breton,Surrealism and Painting, trans. S. Weston (New York: Harper & Row, 1972).
C.S. Peirce argues that “... resemblance is due to the photographs having been produced under such circumstances that they were physically forced to correspond point by point to nature. In that aspect then, they belong to the second class of signs [indices], those by physical connection.”Logic as Semiotic: The Theory of Signs (New York: Dover, 1955), 106.
Supra n.5. ‘Parergon’ refers to Derrida's notion of the frame, which in turn is a critique of Kant's parergon (in theCritique of Judgement).
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University of Lancaster, Department of Law. I would like to take this opportunity to thank Costas Douzinas, Peter Goodrich, Shaun McVeigh and particularly Peter Rush for advice and inspiration while writing this paper. Any remaining ‘proven’ faults are my own.
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Haldar, P. The evidencer's eye: Representations of truth in the laws of evidence. Law Critique 2, 171–189 (1991). https://doi.org/10.1007/BF01128676
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DOI: https://doi.org/10.1007/BF01128676