I’m preparing some thoughts for a future course on the representation of the judge in literature and film. There are many, and they all come in various disguises. More evidently we go from the figure of the wise and intelligent judge, who is unmovable in his ways, to more emphatic judges who show their vulnerability and its relation to doubting. As a middle or anomalous category, we also find judges as fools, or women, who are always perplexing insofar as what they do before passing a verdict is reason their emotions. Their verdicts are always correct, yet their ways of getting there are always counterintuitive. As such, these ways are often deemed wrong, viewed with suspicion, or dismissed by the limited lawyers and prosecutors.
This judge who is also a fool never receives any recognition because even when he arrives at the right conclusion, his act is deemed the work of chance. Of course, what we are talking about here is the fine nuance between material and immaterial evidence, rational and irrational proof and discourse. This nuance permeates the otherwise rigid structure of a legal court-case, which dictates that if you can prove it, you win. As the success rate of the winning party over the losing party is based entirely on evidence, it is less clear how the immaterial kind of evidence, which is often part of the whole package of evidence is taken into account. In other words, there is always evidence of some fact that is based on invisible proof. But the fact that the proof cannot be seen does not make the proof in itself any less absent. Quite the contrary. But then again, how to represent it, and what kind of judge will be able to identify that which may resist final representation?
Derrida wrote beautifully about the dynamics of knowing what you know evidenced by the seeming absence of proof. There is always a trace and a supplement, he writes, which haunts what is insisted upon as being present, and as such, as being the opposite of what is absent. Presence feeds on absence, and it stands in a parasitical relation to absence. A good judge will always take this into account to the perplexing faces of the realists, rationalists, and positivists who populate the courts. And bearing this in mind, it is thus shown how difficult it is to overturn a verdict which is already the result of thinking about variables also in terms of their interplay with what is seemingly missing from the set of evidential proof. As legal history has shown, once an assumption has been proved, by using the above strategy of inclusiveness, it stands. Thus all evidence produced to counter an initial solid judgment has often been shown to be not strong but stupid. And why? Simply because what characterizes a supremely solid judgment is its commitment to assessing in equal measure both the implications of the visible and the invisible proof. A solid judgment is thus always rendered against the background of inclusiveness, of valuing the function of the traces, supplements, and absences that characterize the immaterial proof in the evidential set and which make the final evidence complete.The beauty of being a judge consists of the fact that one can sanction the very idea of justice according to one’s own strength, intelligence, and knowledge of precedence (knowledge of Derrida is also included) thus bypassing the same attributes that the masses may also exhibit, but who, for the sake of courteous conduct, need to follow the biblical injunction: ‘judge not, lest ye be judged.’