U.S. Intellectual History Blog

Mock Trial: The Law and The Real, Part One

I have been reflecting recently upon “Kol Nidre,” the Aramaic text that opens Yom Kippur’s day of fasting and spiritual self-scrutiny. The text is a communal renunciation of all the promises to be pledged over the coming year.

Hoping to write a bit about the topic of the “oath,” I intuitively thought that “Kol Nidre” might be a straightforwardly relevant text. Promise, oath: close enough. I was wrong, of course. My sister let me know that in Judaism, a “promise” is a very different sort of thing from an “oath,” and that, in fact the Aramaic word that comes closest to our understanding of “oath” (konasei), appears fifth in “Kol Nidre’s” list of renounced obligations, indicating its relative unimportance.

I further learned that the original renunciation was retroactive rather than prospective. “Kol Nidre” originally renounced the previous year’s verbal commitments. It was changed in the twelfth century, codified by the great Rabbi Rashi’s grandson Jacob ben Meir, usually referred to by the devout as “Rabbeinu Tam” (1100-1171). Thereafter, “Kol Nidre” would cancel the coming year’s verbal commitments. This is a change worth contemplating, I think.

In any event, here are some recordings of “Kol Nidre” sung in the manner I heard it as a kid, by the great cantor Moishe Oysher.

The cantor at my childhood synagogue studied at Oysher’s feet in Montreal, and, according to my mother, Oysher sometimes sang at the high holidays services at the New York shul of my grandfather, Rabbi Kurt Klappholz. First is a beautiful performance from the Yiddish film Der Vilner Shtot Khazn (The Vilnius City Cantor) from 1940 (one notes the similarity of the rabbis helping Oysher with his tallit, and the way James Brown’s assistants would theatrically assist him with his jacket at the end of concerts):


Here is a more orthodox version, with some period-specific spoken-word passages:


Mock Trial

I have been thinking about oaths because of an excellent work on the subject, Giorgio Agamben’s The Sacrament of Language: An Archaeology of the Oath.[1] I hope to write more about this book over the coming weeks.

Here, I would like to introduce the theme that connects The Sacrament of Language with the theme of the Real (the topic we have been exploring over the past few months) and the law: the “arche” implied in Agamben’s invocation of “archaeology.” This paradoxical “arche” (the “oath” that must come after the invention of law, because otherwise it would lack the foundations that make it operative; but also the “oath” that must come before the invention of law, because it is the enunciative condition of the passage of the first law) helps us to properly frame the relationship between law and the Real.

This kind of puzzling about the “arche” reminds us of Jacques Derrida’s negotiation of the genealogical impossibility of situating speech before writing in Of Grammatology. Agamben’s text opens up some new possibilities for an applied Derridean historiography, particularly in the realm of legal history.

In a famous essay from 1992 entitled “Force Of Law: The ‘Mystical Foundation Of Authority’” (“Force De Loi: Le ‘Fondement Mystique De L’autorite’”), Derrida contemplates the question of whether “force” is “essentially implied in the very concept of justice as law (driot), of justice as it becomes droit, of the law as ‘droit’.”[2] As with Agamben’s exploration of the curious status of the oath, Derrida suggests that “the law” might be intimately related to a law that exceeds or contradicts it, a nonlaw that is nevertheless the source of the effectivity of “the law.”

In a series of powerful reflections upon this essay, Drucilla Cornell proposes that what Derrida is here engaging with is the question of the Real as it pertains to the law. For Cornell, Derrida’s working-through of the law’s “mystical foundations” serves as both a tribute to and a deep critique of Lacan’s theorization of the Real.

Just as Deleuze and Guattari, deeply immersed in the Lacanian paradigm, came to reject Lacan’s mapping of the Real onto the model of the Oedipal law and the prohibition of incest, so Derrida suggests that Lacan’s vision of the Real of law is not nearly Real enough. By thinking through Walter Benjamin’s notion of Gewalt as the “mystical” center of law, Derrida provides—so Cornell argues—something like Hegel’s negation of the negation, a Real-ification of the Real. And this, it seems to me, is quite resonant with the work that Agamben sets in motion with his careful exploration of the oath’s advent. About which, much more, next week.


[1]Agamben, Giorgio, and Adam Kotsko. The Sacrament of Language: An Archaeology of the Oath (Homo Sacer II, 3). Stanford, Calif: Stanford University Press, 2011.

[2]Cornell, Drucilla, Michel Rosenfeld, and David Carlson. Deconstruction and the Possibility of Justice. New York: Routledge, 1992.

2 Thoughts on this Post

  1. NB: My interest in this topic derives almost entirely from reading Adam Kotsko, who has an excellent piece up on the oath and the Book of Job. This coincidence does make me wish that I had used a GOB Bluth image from “Mock Trial with Judge Reinhold,” though.

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