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ET LEX PERPETUA: DYING DECLARATIONS

& MOZART’S REQUIEM

Desmond Manderson*

INTRODUCTION
Requiem aeternam dona eis Domine
et lux perpetua luceat eis.1
(Eternal rest grant unto them, O Lord:
and let perpetual light shine upon them.)
The death of William Woodcock was sudden, yet expected.
In 1788 his wife Silvia had been bludgeoned and left to die in a
ditch. Early the following year, on trial in the Old Bailey for her
murder, William was sentenced to death. On the 19th of January,
a Monday, he was taken to “Tyburn’s tree” in the middle of Lon-
don, and, with a scarcely audible snap of the neck and a sigh or a
moan from the milling crowd, he was hanged. He was not the only
one to meet such a fate. In the following twenty years, in the face
of perceptions of increased lawlessness and fear of political conta-
gion brought on by the French Revolution, the number of crimes
punishable by death in England exploded to over 200.2 Undoubt-

* Senior Lecturer, Faculty of Law, The University of Sydney, Australia. The original
idea for this Article was developed in conjunction with Dr. Piyel Haldar, Department of
Law, Birkbeck College. Initially conceived as a joint project, much of the structure and
argument was first derived from conversations with Dr. Haldar throughout 1996. His con-
tribution to this Article is therefore immense, and I am greatly indebted to his insights and
his support. Versions of this Article have been presented at several conferences, and I am
particularly grateful for the genial and creative feedback provided at the Critical Legal
Conference, Dublin, in September 1997; the Modes of Law: Music and Legal Theory—An
Interdisciplinary Workshop, hosted by the Benjamin N. Cardozo School of Law and the
Mannes School of Music in New York, in April 1998; and the Sacred and Sublime session
of the Australian Association of Philosophy Conference held at Macquarie University,
Sydney, in July 1998. I have been further helped by Professor Susan McClary from
UCLA, Piyel Haldar from Birkbeck College, and Valerie Kerruish from the Macquarie
School of Law, all of whom read and commented on versions of this Article. An earlier
version of this Article is being published in COURTING DEATH: THE LAW OF
MORTALITY (Desmond Manderson ed., forthcoming 1999).
1 WOLFGANG AMADEUS MOZART, Requiem, in REQUIEM (1791) (translation by
author).
2 See E.P. THOMPSON, WHIGS AND HUNTERS: THE ORIGIN OF THE BLACK ACT 15
(1975).

1621
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1622 CARDOZO LAW REVIEW [Vol. 20:1621

edly, the death penalty was enacted to serve substantially symbolic

and ritual purposes; a lesson in the terror and majesty of the law,
whose harshness was frequently ameliorated by dispensation of
the courts.3 But for the many for whom no mercy awaited, a death
sentence was a brute reality. It was the final law, and it ushered in
perpetual darkness.
We know more about William Woodcock than most who met
this fate, because he left behind an unwitting legacy. The King v.
Woodcock4 is one of the seminal cases in the development of the
law of evidence, for the only evidence of what happened to Silvia
came from Silvia herself. While being cared for in the Chelsea
Poorhourse, she recovered her senses and lingered for two days
before she died. A magistrate came to her bedside and, acting in
an informal capacity, took down her story of the events that befell
her that night. The question that arose for the Court was therefore
crucial: according to the hearsay rule, the magistrate’s evidence of
what somebody else had told him to be the truth was inadmissible,
and Silvia herself was no longer able to tell her story. As Chief
Baron Eyre said:
Great as a crime of this nature must always appear to be, yet
the inquiry into it must proceed upon the rules of evidence.
The most common and ordinary species of legal evidence con-
sists in the depositions of witnesses taken on oath before the
Jury, in the face of the Court, in the presence of the prisoner.5
Woodcock established an exception to the hearsay rule in the
case of a dying declaration by a person who has received a fatal
blow:
[T]hey are declarations made in extremity, when the party is at
the point of death, and when every hope of this world is gone:
when every motive to falsehood is silenced, and the mind is in-
duced by the most powerful considerations to speak the truth; a
situation so solemn, and so awful, is considered by the law as
creating an obligation equal to that which is imposed by a posi-
tive oath administered in a Court of Justice.6

3 See Douglas Hay, Property, Authority and the Criminal Law, in ALBION’S FATAL
TREE: CRIME AND SOCIETY IN EIGHTEENTH CENTURY ENGLAND 22-23 (Douglas Hay
et al. eds., 1977) [hereinafter Hay, Property, Authority and the Criminal Law]; see also
Douglas Hay, The Criminal Prosecution in England and Its Historians, 47 MOD. L. REV. 1
(1984); John H. Langbein, Albion’s Fatal Flaws, PAST & PRESENT, Feb. 1983, at 96;
Charles J. Reid, Jr., Tyburn, Thanatos, and Marxist Historiography: The Case of the Lon-
don Hanged, 79 CORNELL L. REV. 1158 (1994).
4 168 Eng. Rep. 352 (Cr. Cas. Res. 1789).
5 Id. at 352.
6 Id. at 353 (footnote omitted).
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The exception, therefore, operates only in the following limited

circumstances: the death of the declarant; a trial for murder or
manslaughter; a statement which relates to the cause of the declar-
ant’s death; and a “settled hopeless expectation of death”7 in the
mind of the declarant.8 The traditional common law criteria in the
United States date from the same period and are almost identical.9
It was this combination of elements that allowed Silvia to speak
from beyond the grave and condemn William to death, as he was
found to have dispatched her.
The courts have never shown themselves to be happy with the
dying declarations exception. Concerned that its only justification
was as a moral necessity, the operation of the exception has been
clearly circumscribed, and both judges and textbook authors have
found little to commend it. “Being a concession to moral senti-
ment the exception concedes the bare minimum, hence its limita-
tions.”10 But while the traditional approach of circumscribing the
exception with fixed criteria demonstrated the courts’ discomfort,
the approach in recent cases, in both the United States and Eng-
land, in which the courts have treated the principle of dying decla-
rations as part of the res gestae, is hardly more satisfactory. In the
United States, the Federal Rules of Evidence have gradually loos-
ened some, but not all, of the criteria of admissibility. The flexi-
bility that courts have sometimes shown has not, however, in any
way changed the exceptional status of the principle, nor modified
the basic concepts which have underscored it. In contrast, the
British Privy Council in Ratten v. Reginam11 and the English House
of Lords in R v. Andrews12 have sought to do away with the sepa-
rate status of the exception altogether, instead, replacing it with a
more general test of “reliability” in circumstances which “exclude
the possibility of concoction or distortion.”13 In some ex-colonial
jurisdictions in which the common law rules of evidence have been
codified—such as the Commonwealth of Australia—separate
categorization of the dying declarations exception and, indeed, the

7 Regina v. Peel, 175 Eng. Rep. 941, 941 (1860).

8 See RUPERT CROSS, EVIDENCE 488-90 (1979).
9 See FED. R. EVID. 804(b)(2); EDWARD J. IMWINKELRIED ET AL., CRIMINAL
EVIDENCE 168-71 (1979); W. KEN KATSARIS, EVIDENCE AND PROCEDURE IN THE
ADMINISTRATION OF JUSTICE 186-87(1980).
10 COLE, EVIDENCE 204 (1972) (citing Nembhard v. The Queen, 1 All E.R. 183 (Eng.
(1982))).
11 Ratten v. Reginam, 3 All E.R. 801 (Eng. 1971).
12 R v. Andrews, 1 All E.R. 513 (Eng. 1987).
13 Ratten, 3 All E.R. at 808.
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1624 CARDOZO LAW REVIEW [Vol. 20:1621

strict application of the rule against hearsay, have to some extent

been abandoned altogether.14 This approach concedes that the
formalistic approach to the laws of evidence, of which the hearsay
rule is the gatekeeper and talisman, simply cannot be made com-
patible with the principle of dying declarations. As one of several
specific exceptions to the rule against the admissibility of hearsay,
or as part of a reconception of how the laws of evidence determine
relevance, the principle remains a fragment, an indigestible sup-
plement to the hearsay principle and to the laws of evidence.15 For
200 years, the moment of dying has disrupted law’s rules as to the
declaration of truth.
Contrary to the uneasy orthodoxy of the common law, and re-
gardless of its current status within the laws of evidence of par-
ticular jurisdictions,16 the principle of dying declarations sheds a
great deal of light on the very foundations and structure of the
laws of evidence as a whole. Part I of this Article argues that, far
from being the problematic exception it appears to be, the law’s
treatment of statements made at the point of death is paradigmatic
of the law of evidence as a whole. The dying declaration is not an
exception to the law’s demand for an oath administered before a
jury; it is the origin and model of it. The rules of evidence, under-
stood as the structures which guarantee the truth of a trial, actually
rely on the supplement they appear to banish. Having bound to-
gether rule and exception as part of the same conceptual frame-
work, however, Part II goes on to demonstrate the problems with
such an approach in a world in which the epistemology from which
the dying declarations exception derived no longer applies. The
values which formed the basis of both the principle of dying decla-
rations and of the rules of evidence no longer carry much weight.
In their absence, the extent to which the truth of a dying declara-
tion can any longer be guaranteed, must be doubted. The theory
of truth, which I show to have been dependent on a certain eight-
eenth-century world view, seems in the present changed circum-
stances to deconstruct itself. Specifically, the formal criteria which

14 See Evidence Act, 1995 (Cth.) pts. 3.1-.2 (Austl.); Evidence Act, 1995 (N.S.W.)
(Austl.).
15 See generally DANGEROUS SUPPLEMENTS: RESISTANCE AND RENEWAL IN
JURISPRUDENCE (Peter Fitzpatrick ed., 1991); JACQUES DERRIDA, MARGINS OF
PHILOSOPHY (Alan Bass trans., 1982).
16 See Bernard B. Kliks, Impeachment of Dying Declarations, 19 OR. L. REV. 265
(1940); Bryan A. Liang, Shortcuts to “Truth”: The Legal Mythology of Dying Declara-
tions, 35 AM. CRIM. L. REV. 229 (1998); Charles W. Quick, Some Reflections on Dying
Declarations, 6 HOW. L.J. 109 (1960).
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characterize the principle of dying declarations appear no longer

to ensure its truth, but rather to undermine it.
The final step of the argument, Part III, seeks to reconcile the
arguments of the previous two Parts. Law is a formal system, and
its legitimacy is founded not so much on a promise of truth, but
rather by the enactment of ritual. If we understand the laws of
evidence as part of a formal structure, to which entry is governed
and guarded by rites of passage, then both the oath before a court,
and the dying declaration outside of court can be seen as enacting
a similar ritual of purification. It is consistency, not truth—ritual,
not substance—which governs the legal constitution of evidence.
In the law’s protection of its own seamless interiority against any
external scrutiny, the dying declaration and the evidential oath are
different episodes directed towards the same purpose. From the
point of view of form, rather than of truth, therefore, the dying
declaration—a formal model of the transfiguration wrought at the
moment of death—again emerges in Derridean terms: it is the
supplement which, because it takes place outside the court, cannot
be assimilated within law’s formal structure and which is yet
needed to explain the structure’s operation.
The dying declaration and the oath are both rituals that en-
sure our transition and our submission—from one jurisdiction, the
social and the earthly, to another, the legal and the heavenly. To-
gether, they tell us something of the power of formalism. But as
we shall see, positive law owes a great deal to the aesthetic of clas-
sicism, which coloured the moment of its birth at the end of the
eighteenth century. There is something quintessentially classical in
both the rules of evidence and of dying declarations, an aesthetic
which we must draw on if we are to fully appreciate their force.
Using classical music as an explanatory tool, we shall see that the
structure of formal law, which developed in early modernity—such
as the laws relating to the admission of evidence—and the values
of liberal legalism which justify them are not removed from the
contemporaneous world of aesthetics, music, art, and literature.
Rather, a serious consideration of music will help us better under-
stand the history, nature, and force of positive law.17 Ultimately,
legal texts are not the complete, hermetic wholes that they are
sometimes claimed to be. In this, ironically, lies the fatal flaw of
formalism and the saving grace of the common law.

17 For further discussion of this theme, see also DESMOND MANDERSON, SONGS
WITHOUT MUSIC: AESTHETIC DIMENSIONS OF LAW & JUSTICE (forthcoming 2000).
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1626 CARDOZO LAW REVIEW [Vol. 20:1621

I.
Dies irae, dies illa . . . .
Quantus tremor est futurus,
Quando judex est venturus,
Cuncta stricte discussurus!18
(A day of wrath, that day . . . .
What trembling there will be,
When the judge will come
Who will thresh out everything strictly.)

A.
The death of Wolfgang Amadeus Mozart was protracted, yet
unexpected. Through the months of 1791 he gradually sickened;
neglect and fragility were each compounded by the restless urgings
of his own demonic creativity. But the dies irae, the day of terror,
on which Mozart faced death for the last time, was not set in ad-
vance by some judicial fiat. Death caught him in the midst of life,
incomplete projects all about him. By his bed lay the fragmentary
draft of a Requiem,19 his “great Mass for the dead,” the ghostly
commission which perhaps he understood to presage his own
doom. In the middle of the night, so the story goes, came a man
dressed in black who commissioned a Requiem but refused to dis-
close for whom it was to be undertaken. Did Mozart take this man
as an omen or as death itself? Was he conscious of composing his
own Mass and epitaph, or is that belief simply the interpretative
conceit of later generations?
There is no answer to the mystery, yet in a literal sense, Mo-
zart’s Requiem was his dying declaration. Certainly it conforms to
most of the strictures laid down in Woodcock—which had been
decided in England, of course, only the previous year. The Req-
uiem was the last will and testament of Wolfgang Amadeus Mo-
zart. It was the final product of a mind labouring under a “settled,
hopeless expectation of death,”20 “when the party is at the point of
death, and when every hope of this world is gone.”21 Further, the
Requiem Mass itself communicates something about the nature of
death. Thus, it attempts through emotion and insight to bring sol-
ace to those who are (temporarily) left behind. The truth to be
found in Sylvia Woodcock’s dying declaration and in Mozart’s

18 MOZART, Dies Irae, in REQUIEM, supra note 1.

19 MOZART, REQUIEM, supra note 1.
20 Regina v. Peel, 175 Eng. Rep. 941, 941 (1860).
21 The King v. Woodcock, 168 Eng. Rep. 352, 353 (Cr. Cas. Res. 1789).
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Requiem are alike guaranteed by the immediate and necessary

connections between their subject, object, and occasion: they are
both insights into and before death.22
Why should the context of a dying declaration be treated by
Chief Baron Eyre as inducing the mind to speak the truth, “by the
more powerful consideration”?23 The answer is nowhere clearer
than in the Requiem, for the text and music of the Requiem sound
with two themes: the certainty of divine judgment, and the terror
of divine punishment. Listen to it, and you will hear what I mean.
In this classical work, we are provided with musical evidence of a
spiritual world view in which the imminence of death did indeed
guarantee truth. The dying declaration was a statement made not
just in the absence of life—“when every hope of this world is gone:
when every motive to falsehood is silenced”24—but rather in the
very presence of a judge and judgment more solemn and awful
than any human institution.
The Requiem contains no Miserere nobis or Pie Jesu. The
only reference to mercy appears at the very beginning of the Mass.
“Kyrie eleison. / Christe eleison. / Kyrie eleison”:25 Lord have
mercy. Christ have mercy. Lord have mercy. And here, for the
only time, the text reverts from Latin to ancient Greek. Mercy is
set apart, structurally and linguistically, from the remainder of the
Requiem. And the Kyrie apart, the Requiem is a resolutely legal
document; a testimony to the reality of God’s judicial role in con-
signing His subjects to heaven or to hell. “Quantus tremor est futu-
rus, / Quando judex est venturus, / Cuncta stricte discussurus!”:26
What trembling there will be when the Judge will come who will
thresh out everything strictly. It is the promise of this strict and
uncompromising discourse that grounds the Requiem. “Liber
scriptus proferetur, / In quo totum continetur, / Unde mundus ju-
dicetur”:27 A written book will be brought forth which contains
everything for which the world will be judged. The infallibility of
divine judgment, and indeed its textual and legal nature, awaits us
all with certainty.
To those whom God convicts, only terror awaits. The Req-
uiem anticipates and reflects on the dies irae, the day of wrath, and
it can be heard in Mozart’s music as it was said in the text. The

22 See PHILIPPE ARIÈS, L’HOMME DEVANT LA MORT (1977).

23 Woodcock, 168 Eng. Rep. at 353.
24 Id.
25 MOZART, Kyrie, in REQUIEM, supra note 1.
26 MOZART, Dies Irae, in REQUIEM, supra note 1.
27 MOZART, Tuba Mirum, in REQUIEM, supra note 1.
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1628 CARDOZO LAW REVIEW [Vol. 20:1621

running passages of the orchestra set against the long unison of the
choir convey a sense of the irresistible force of God’s gaze and
judgment. The Confutatis that follows only enforces these feelings
of doom, judgment, and finality. “Confutatis maledictis, / flammis
acribus addictis”: The damned are confounded and consigned to
keen flames, cry the male voices with limping echoes, over a fervid
and insistent accompaniment that connotes nothing but the licking
fires of hell itself. Music and text work together not just to express
terror, but to instill it.
In Mozart’s Requiem there is something comforting in the
promise of judgment and finality, since the very infallibility of
God’s judgment offers, to those who pass the test, eternal peace
and perpetual light. The flames subside and give way to calming
flutes, over which the female voices whisper a quiet entreaty.
“Voca me cum benedictis”:28 Call me with the blessed. The deci-
sion is God’s, his light searching and ineluctable, and we can only
hope and pray. Death is a call to judgment, a summons to the di-
vine court. And there, God’s ruling is both feared and trusted.
This is the world which Mozart’s Requiem reveals for us.
Death is not considered the end of life but the beginning of eter-
nity, guarded by a waiting God. In the late eighteenth century, in
England and America no less than in Austria, this was not a myth,
but a reality. Developed over a period of centuries as part of the
great tradition of Western religious music, the sung Mass did more
than depict this world view: together with the great cathedrals and
churches that studded the topography of mainland Europe and
Great Britain, and the great art they housed, music helped to con-
stitute it. Mozart’s Requiem therefore gave classical sonority to a
well-established and powerful tradition. After all, a nomos,
Cover’s “universe of norms,”29 is not just formed by legal sources,
narrowly construed. Its values are developed over time through
the multiple expressions of values in a community, as found not
only in its precedents and statutes, but in the accumulated art and
architecture that every day grows to surround its inhabitants and
through which they absorb the pattern of their relationships to
God and to each other. Art and music serve a normative, and thus
a legal function, establishing the conditions of life of which the law
is but a particular expression.30

28 Id.
29 Robert M. Cover, The Supreme Court, 1982 Term—Foreword: Nomos and Narra-
tive, 97 HARV. L. REV. 4 (1983).
30 See Costas Douzinas et al., The Alta(e)rs of Law: The Judgment of Legal Aesthetics,
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B.
The dying declaration, an exception to the hearsay principle,
seems to have been justified in the eighteenth century because the
impending judgment of God was thought to really impose a duty
of honesty upon the dying. This was indeed “a situation so sol-
emn, and so awful” as to compel the declarant to tell the truth.
But does not the judgment of God precede the laws of Man? Is
not God the first and the greatest of all judges? In the nomos of
the eighteenth century it is more than a little ingenuous to claim,
as Chief Baron Eyre did, that the fear of imminent death creates
an obligation “equal to that which is imposed by a positive oath
administered in a Court of Justice.”31 The structure and ritual of
the courtroom, its language, costume, and setting, were intended
by their majesty to instill a great terror in those who came before
it. As Douglas Hay argued, that terror was essential to the suc-
cessful operation of the legal system.32 But the legal system ap-
pealed to the judgment of God to ground and legitimate this ter-
ror. The iconography and costumery of the court is religious in its
overtones, most noticeably in the taking of the oath, a ritual
promise extracted on a Bible and to God, “to tell the truth . . . so
help me God.” The prohibition against dishonesty is expressed in
the crime of perjury, but its sanction is spiritual as well as secular.
The ritual of the oath therefore attempts to bring the witness be-
fore God. On the one hand, the judge and the courtroom are de-
signed to replicate the ideal of a certain and infallible judge; while
on the other, the oath itself makes specific appeal to God in order
to generate the feeling of terror, which will make deception not
just reprehensible but inconceivable.
Chief Baron Eyre has his argument precisely upside down. So
too do those U.S. cases holding that, although admissible, the dy-
ing declaration does not have the same value or weight as a state-
ment tendered under oath.33 It is the final judgment which really
summons us to tell the truth, and the oath is only a pale imitation
of it, administered in a court of justice in an attempt to replicate

9 THEORY, CULTURE & SOC’Y 93 (1992); Desmond Manderson, Statuta v. Acts: Inter-
pretation, Music, and Early English Legislation, 7 YALE J.L. & HUMAN. 317 (1995); Ian
Ward, A Kantian (Re)Turn: Aesthetics, Postmodernism and Law, 6 LAW & CRITIQUE 257
(1995).
31 The King v. Woodcock, 168 Eng. Rep. 352, 353 (Cr. Cas. Res. 1789) (emphasis
added).
32 See Hay, Property, Authority and the Criminal Law, supra note 3, at 17-18.
33 See, e.g., Commonwealth v. Gardner, 128 A. 87 (Pa. 1925). But see Commonwealth
v. Brown, 131 A.2d. 367 (Pa. 1957).
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1630 CARDOZO LAW REVIEW [Vol. 20:1621

some of that solemnity and awe. In dying we come face to face

with the final reckoning, and the oath is a ritual which foreshadows
that moment. The rule of dying declarations is therefore not an
exception to the requirement of an administered oath, but rather
its origin and its paradigm. The oath could have no force without
the infallible judgment of God that death ushers in, and it is pre-
cisely this judgment with which the dying declarant is faced. If we
were all forever labouring under a “settled hopeless expectation of
death,” the imminent presence of God would make the adminis-
tering of a positive oath unnecessary. We would all speak the
truth. But we strive to pretend that death sleeps elsewhere than in
our own breasts. The oath is therefore required to bring the judg-
ment of God present to our mind: by metaphors which attempt to
make a judge seem like a God, by metonyms which remind us of
the final arbitration that yet awaits us, and by the power of the
courts, which entitles them to pass sentences that deprive the sub-
ject of liberty or life. Iconography, rhetoric, and practice combine
to ensure that the oath imparts, with effort, the same terrible maj-
esty achieved effortlessly by the dying declaration.
First, then, the principle of dying declarations is no exception
to the hearsay rule, but the grounds of its possibility. In law and in
spirit, the rule of dying declarations is the supplement: the neces-
sary precondition for the very rule that denies its importance.
Secondly, Mozart’s Requiem and the religious choral tradition to
which it belongs, not only convey the nomos in which these legal
principles developed, but were a significant part of its constitution.
Music is both a description and a source of law.

II.
Rex tremendae majestatis,
Qui salvandos salvas gratis,
Salva me, fons pietatis.34
(King of awesome majesty,
who freely savest the redeemed,
Save me, font of pity.)

A.
If the oath and the dying declaration were bound together in a
world view of which the judgment of God was the ultimate and
imminent sanction, how can this legal principle be legitimated two

34 MOZART, Rex Tremendae, in REQUIEM, supra note 1.

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centuries later, in a world whose philosophy is so self-consciously

secular, so inhabited, as Critchley has analyzed it, by nihilism?35
There seem to be several inter-related problems with the rule in
Woodcock which make its approach presently untenable as a justi-
fication of the truth of a dying declaration. Further, the very strict
limitations on the application of the “exception” imposed by Chief
Baron Eyre and later courts, appear to work against its underlying
rationale. Together, these analyses suggest that the principle of
dying declarations no longer guarantees the truth of utterances,
nor is it meant to.
Modern western society has a radically changed consciousness
of death from that of the eighteenth century. The “death of God”
is too obvious to bear repetition. Suffice it to say that, for a good
many of us in modernity, the afterlife does not have the reality that
it clearly possessed two centuries ago. Critchley writes:
That is to say, philosophy might be said to begin with two
problems: (i) religious disappointment provokes the problem
of meaning, namely, what is the meaning of life in the absence
of religious belief?; and (ii) political disappointment provokes
the problem of justice, namely, ‘what is justice’ and how might
justice become effective in a violently unjust world? . . .
Religious disappointment is born from the realization that
religion is no longer (presuming it ever was) capable of provid-
ing a meaning for human life. . . .
Of course, the proper name for this breakdown is moder-
nity, and the task of philosophical modernity . . . is a thinking
through of the death of God in terms of the problem of fini-
tude.36
With that change, moreover, has come a wholly changed per-
ception as to the meaning and role of death in our lives. The hour
of our death, in Philippe Ariès’s memorable phrase,37 has changed
from a moment of clarification to a moment of dissipation. Our
soul is not mustered but vanquished by dying. At the same time,
historians have traced the rise of individualism over the past sev-
eral centuries as the core of our modernist self-understanding.
The individualism which Ariès discusses began in the late middle
ages, but, as Foucault has argued, it has undoubtedly gathered

35 See SIMON CRITCHLEY, VERY LITTLE . . . ALMOST NOTHING: DEATH,

PHILOSOPHY, LITERATURE 1-28 (1997).
36 Id. at 2.
37 See ARIÈS, supra note 22.
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1632 CARDOZO LAW REVIEW [Vol. 20:1621

strength over the past 200 years.38 This too has had consequences
for how we understand death. Ariès argues that it was only with
the rising Western consciousness of “the self” as something indi-
vidual and irreplaceable that death took on the dimensions of ter-
ror that it did. If the self is an atomic isolate—a being whose value
lies precisely in its unique and individual identity—then we can
never accept our death. The pattern of the modern world, then,
has been to remove from our understanding of what it is to die the
promise of life after death, on the one hand, and the consolation of
membership in a wider community, on the other. There is nothing
left to bridge the great canyon which marks off the living from the
dead: neither God hereafter nor society therebefore can heal the
gaping wound.
The history of western music evidences the nature of these
changes. Zizek argues that during the nineteenth century, the
claim to truth of religious music became increasingly problematic.39
There is a fundamentally “as if” quality to the Requiems of Berlioz
and Verdi, an attempt to overwhelm doubt with power. Increas-
ingly during the romantic era, massed musical forces—serried
ranks of tympani and horn—replaced belief with spectacle, as if
religious experience could be simulated through emotional inten-
sity; as if a lack of belief could be buried under an excess of emo-
tion. But let us move closer to our own time. The War Requiem,40
Benjamin Britten’s 1942 setting of the war poems of Wilfred
Owens, suggests how far we have come. This remarkable work fo-
cuses on death as a human tragedy, not a divine transition.
Out there, we walked quite friendly up to Death . . . .
We’ve sniffed the green thick odour of his breath . . . .41
There is nothing divine reflected here, and no sense of judgment
or justice. It is the devouring silence of Death rather than the ter-
rible eternity of Hell which governs our fears. There is no afterlife
in the poems of Wilfrid Owens, only an emptiness which cannot be
undone. The Requiem’s focus on war accentuates this theme of
death as a human act, with human consequences. The experience
of “the dead” is in fact entirely absent: the denial of death takes
the specific form of death as an event which happens to others,

38 See MICHEL FOUCAULT, THE ARCHAEOLOGY OF KNOWLEDGE (A.M. Sheridan

Smith trans., 1972).
39 See Robert Schumann: The Romantic Anti-Humanist, Appendix II to SLAVO ZIZEK,
THE PLAGUE OF FANTASIES 192 (1997).
40 BENJAMIN BRITTEN, WAR REQUIEM (1961).
41 BENJAMIN BRITTEN, Dies Irae, in WAR REQUIEM, supra note 40 (quoting the poem
by Wilfred Owen entitled The Next War).
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whose tragedy lies in the emptiness felt by those who are left be-
hind.
Richard Strauss’s Four Last Songs,42 composed just a few
years after the end of the Second World War, presents a contrast-
ing perspective on the modern nature of death. This too is a dying
declaration, a work written in the settled knowledge of the com-
poser’s imminent death. And the last line of the last song asks,
“Can this, perhaps, be death?”43 But there is an enraptured tran-
quility here, an acceptance which one does not find in either Mo-
zart or Britten. The theme of transfiguration44 sounded by the
horn, and accompanied by the bird-song of the flutes suggests why:
it is neither divine judgment nor human folly which governs death
here, but the ineluctable workings of nature from which we arose
and by which at last we are subsumed. Nevertheless, in Strauss, as
in Britten, the divine and the afterlife are entirely absent. Cer-
tainly, while Britten focuses on death as caused by humans, Strauss
envisions something natural instead. But here too the soul does
not migrate anywhere—let alone to meet its maker. In Britten it
ends, just ends, and that is the tragedy. In Strauss it dissipates, it
merges with the earth, and that is the triumph. In Mozart, both
the tragedy and the triumph of death are derived from our right-
eous confrontation before the court of the divine. But in the twen-
tieth century we can actually hear how the secular age has reconsti-
tuted death in the absence of a God to judge us.
In today’s world, how can the truth of a dying declaration ever
be assured? Where is the punishment, where the judgment? Why
is “all motive to falsehood silenced”? If death is a nothingness,
why should we tell the truth in its shadow, or not tell the truth, or
say anything at all? The attempt in recent cases to secularize the
principle underlying the rule of dying declarations fails to finds a
way around this problem. Andrews shifts the question of admissi-
bility from a fixed definition to a test of trustworthiness in circum-
stances in which “the possibility of concoction or distortion [can]
be disregarded.”45 But the idea that somehow the realization of
imminent death will overwhelm all sense of calculation and lead to
an outburst of uncensored and instinctive honesty is no more or
less likely than the opposite. Whether viewed as a tragedy, like

42 RICHARD STRAUSS, VIER LETZTE LIEDER (1948).

43 Id. (quoting poem by Joseph Eichendorff, Im Abendrot).
44 The term transfiguration here is so termed by the composer; it is a theme used by
him in other contexts.
45 R v. Andrews, 1 All E.R. 513, 520 (Eng. 1987).
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1634 CARDOZO LAW REVIEW [Vol. 20:1621

Britten, or an apotheosis, like Strauss, the twentieth-century view

of death is devoid of either a sanction or a destination. Death has
become the most isolated moment of our lives. In this world view,
the dying often seem to experience solitude and a responsibility
which is purely selfish.46
Faced with nullification, in that solitary moment, we do not
look to what comes beyond or after life, but instead continue to
hold tight to the individual interests which are to be taken from us.
Perhaps it is for this reason that we pay particular attention to
statements made on the point of death, using them as a way of ex-
tending the life and will of the deceased just a little further. What
is a last will but a desire to live a little longer, a pact made by the
living to honor the dead and extend their life in return for a similar
favor in due course?
Just as the man who is hanging himself, after kicking away the
stool on which he stood, the final shore, rather than feeling the
leap which he is making into the void feels only the rope which
holds him, held to the end, held more than ever, bound as he
had never been before to the existence he would like to leave.47
So it was, perhaps, with William Woodcock. The snap of his neck
was not a point of sudden distinction, or the pull of the next life as
it reached out to consume him. It was the final tug of this one.
Woodcock’s last experience was the most earthly sensation of his
life.
The rule of dying declarations characterized the declarant as
having an outsider’s interest in the truth of the matter, having ef-
fectively left this world already in order to face the next one. But
what we have seen is that this is no longer the case. Far from a
promise of truth grounded in the renunciation of earthly concerns,
the modern desire for eternal life suggests that dying is, on the
contrary, marked by an almost desperate attempt to on hold to
earthly concerns—like grim death, as they say.
In this respect, salvation may be seen to lie not in the individ-
ual for whom death marks a lonely end, but in the community or
family which continues on after death. But this notion of relation-
ship is not entirely selfless or impartial. A raised consciousness
and apprehension of death seems to lead people to a closer identi-
fication with the community which will survive them, and to dem-
onstrate a greater intolerance for those who are perceived to vio-

46See ARIÈS, supra note 22, at 291-399.

47CRITCHELY, supra note 35, at 31 (quoting MAURICE BLANCHOT, THOMAS THE
OBSCURE (R. Lamberton trans., 1973)).
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1999] ET LEX PERPETUA 1635

late its norms.48 In short, the dying have a vested interest in the
community they leave behind: its functioning, its structure, its sys-
tem of justice, is their legacy. Different people will, obviously,
perceive their interests differently, but the point is clear: the dying
do not leave the world behind, for now they have nowhere else to
go. We do not surrender the world but are wrested from it.
This perception of death raises a fundamental problem with
the theoretical justification for the admission of dying declarations.
The doctrine requires a “settled hopeless expectation of death.”
None of the gradual ameliorations to the exception have affected
this crucial criterion, which has alternatively been described as
“the consciousness of a swift and certain doom.”49 Although death
need not be immediate, there can be no hope of recovery, and the
dying declarant must be conscious of this inexorable and impend-
ing finitude.50 The dying declaration serves, then, as a closing of
accounts, an act of completion, a summing up.51 Clearly it is the
declaration’s perceived nature as a final, perfect cadence which led
Chief Baron Eyre to place such store in its authenticity.
Perhaps it would be as well to note that, as human beings, we
are always under such a settled hopeless expectation: our mortal-
ity is a truth from which there is no escape. For none of us can
there ever be any hope of recovery; only the timing of our death is
ever at issue. But our lives, to be sure, are not lived that way. The
opposite is more strongly true. Death rarely comes to us as a
resolution, settled, and complete. It is avenir—a future yet to
come—until the very moment has passed by, leaving not a self but
a corpse in its wake. No matter how we prepare for it, death
seems to take us by surprise. We cannot know our death since we
are absent from it. Maurice Blanchot suggests that our experience
with love tells us something about this fractured and impossible
moment:
[L]ove is death lived in advance and known to the end, so love
is always afraid of the next day, its future, because it fears be-
coming its own awakening, the profoundly miserable moment
in which it finds itself not ended but, in this very ending, finds it

48 See Abram Rosenblatt, Evidence for Terror Management Theory: I. The Effects of
Mortality Salience on Reactions to Those Who Violate or Uphold Cultural Values, 57 J.
PERSONALITY & SOC. PSYCHOL. 681 (1989).
49 Shepard v. United States, 290 U.S. 96, 100 (1933); see also IMWINKELRIED ET AL.,
supra note 9, at 170.
50 See Regina v. Bernadotti, [1869] 11 Cox C.C. 316 (Eng.); Rex v. Hope [1909] V.L.R.
149 (Austl.).
51 See the justification of the exception in KATSARIS, supra note 9, at 186.
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1636 CARDOZO LAW REVIEW [Vol. 20:1621

is unfinished, having never been . . . .52

The death of Wolfgang Amadeus Mozart exemplifies this pre-
dicament. The strewn papers, the unfinished compositions, give
evidence of death which caught a man in the midst of life. His
death was untimely. Mozart’s Requiem, his dying declaration, was
incomplete—as incomplete as I have argued that our final state-
ments inevitably must be. The Requiem does not manifest a de-
finitive moment of truth under the settled hopeless expectation of
death, but rather a continuing and ceaseless desire for life. In this
way, too, it appears that the insistence in Woodcock that the mo-
ment of death is characterised by distinction and reflection could
not be further from the mark. Mozart did not leave a closing
statement, a completed act. He left something half-finished, in the
forlorn hope that there would yet be time to return to it.
It was left to Franz Xavier Süssmayr, an unremarkable but de-
termined contemporary, to fill in the missing pieces of the Req-
uiem and present to the world as a complete form that which was
in fact only a fragment. It is the work of Süssmayr which creates
for us the myth of death as a completed composition; the work of
Mozart himself shows us instead how a dying declaration is but a
hasty sketch of projects yet-to-come. Chief Baron Eyre, then,
turns out to be rather like Süssmayr: just another mediocrity who
comes along after the declarant’s death, tidying up the pieces,
squaring off the awkward corners, and reading settled verities into
those final snatched breaths of life.

B.
We do not live in Süssmayr’s world, or in that of Chief Baron
Eyre. Ironically, faced with the aforementioned complexities, the
rule in Woodcock is itself structured to prevent the kind of inquiry
which might establish whether a particular declaration could or
could not be demonstrated to in fact fall within the exception. On
the one hand, one might want to inquire whether the declarant ac-
tually believed in God. But the courts have held that such an in-
quiry is “wholly rejected.”53 Neither is allowance made for the ex-
istence of cultural or religious differences, which might lead to a
radically different conception of the nature of death and of the re-
sponsibilities which surround it. The rule, in other words, reso-
lutely assumes the conditions of its legitimacy which are in fact less

52 MAURICE BLANCHOT, Gazes from Beyond the Grave, in THE WORK OF FIRE 244,
253 (Charlotte Mandell trans., 1995).
53 Regina v Savage [1970] T. St. R. 137, 145 (Austl.).
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1999] ET LEX PERPETUA 1637

and less likely to be fulfilled.

On the other hand, the rule only applies to statements made
relating to the immediate circumstances giving rise to the declar-
ant’s cause of death, and at a trial for murder or manslaughter
arising out of that death. Yet, if the underlying premise of the rule
is to be believed, it is the “settled hopeless expectation of death”
which gives rise to a promise of truth. Why is this not good
enough evidence as to any matter within the knowledge of the de-
clarant which may shed light on the background or motive of his
death? Why does the rule of dying declarations not apply equally
to trials for fraud or defamation? Why can’t a police officer give
evidence as to the last words of a car accident victim? It seems in-
congruous that if imminent death indeed creates an obligation
“equal to that which is imposed by a positive oath” that the cir-
cumstances of its application should be so limited.
Either way, the application of the rule undermines its ration-
ale. The formal structure of certain fixed criteria for application in
certain fixed circumstances leaves no room for a consideration of
factors that would distinguish those situations in which a dying
declaration might be true from those in which it might not. The
formal resistance to any consideration of other factors forces us to
accept a general rule which makes less and less sense.

III.
Agnus Dei, qui tollis peccata mundi:
dona eis requiem.54
(Lamb of God, who takest away the sins of the world:
grant them rest.)

A.
The paradox of the law’s refusal to inquire into the beliefs of
the declarant and its concurrent restriction of the exception to cer-
tain narrow circumstances appear to undermine the dying declara-
tion’s claim to truth. But this paradox also points to something of
broader significance; for both of these aspects of the exception
prevent us from inquiring into the fact of the truth, or otherwise, of
the declaration. Lord Reid, speaking of the law of evidence as a
whole, said:
The whole development of the exceptions to the hearsay rule is
based on the determination of certain classes of evidence as

54 MOZART, Agnus Dei, in REQUIEM, supra note 1.

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1638 CARDOZO LAW REVIEW [Vol. 20:1621

admissible or inadmissible and not on the apparent credibility

of particular evidence tendered.55
The assumption that a dying declaration is true is not to be investi-
gated, for we may find that it is not. Rather, the structure of the
law is designed to protect the myth of the truth of evidence by pre-
venting any inquiry into it. This is surely the essence of a formalist
approach to law: by establishing formal criteria and preventing a
substantive, particularized, inquiry, the legal system effaces the
contingency of its own origins.56 The formal requirements are a
mask behind which we are forbidden to go.
Yet in this way too, the problems we have discerned with the
dying declarations exception, far from proving an abnormal
growth grafted on to basic principles, turn out instead to be para-
digmatic of the whole structure. The so-called exception to the le-
gal scheme of evidence turns out once again to be a model for its
operation, a “supplement” which is “dangerous” because of what
it reveals about the operation of the legal system as a whole.57 In
short, the law protects its legitimacy as a system—not a system of
truth but of belief, closed and therefore impenetrable to any inter-
rogation. A formal legal system conceals its origins and values be-
hind an insistence on procedural requirements and supposed
“bright-line rules.”58 It does so in order to render impossible any
substantive challenge to its legitimacy by pretending to an objec-
tivity which is mythic. Formalism creates a closed system, a circle
which cannot be broken.
Here too, let me reflect on aesthetic corollaries to the law. It
is no coincidence that formalism in law and classicism in the arts
both emerge in recognizably modern form at around the same
time—at the end of the eighteenth century. They each seek a solu-
tion, in different spheres, to the same problem of the relationship
between legitimacy and authority. They are each a response to the
rise of nihilism and the impossibility, therefore, of an external an-
swer to that problem. “Nihilism is the breakdown of the order of

55 Myers v. Director of Pub. Prosecutions, 2 All E.R. 881, 887 (Eng. 1964).
56 See PETER FITZPATRICK, THE MYTHOLOGY OF MODERN LAW 1-12 (1992).
57 See Peter Fitzpatrick, The Abstracts and Brief Chronicles of the Time: Supplement-
ing Jurisprudence, in DANGEROUS SUPPLEMENTS: RESISTANCE AND RENEWAL IN
JURISPRUDENCE, supra note 15, at 1-2.
58 See Duncan Kennedy, Form and Substance in Private Law Adjudication, 89 HARV.
L. REV. 1685 (1976); Duncan Kennedy, Legal Formality, 2 J. LEGAL STUD. 351 (1973);
Ken Kress, Coherence and Formalism, 16 HARV. J.L. & PUB. POL’Y 639 (1993); Dennis
Patterson, The Metaphysics of Legal Formalism, 77 IOWA L. REV. 741 (1992); Ernest J.
Weinrib, The Jurisprudence of Legal Formalism, 16 HARV. J.L. & PUB. POL’Y 583 (1993).
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1999] ET LEX PERPETUA 1639

meaning, where all that was posited as a transcendent source of

value becomes null and void, and where there are no skyhooks
upon which to hang a meaning for life.”59
The eighteenth century witnessed a consistent and climactic
manifestation of both a philosophical nihilism and the breakdown
of the autocratic state. No doubt this transformation did not take
place overnight. “[K]ings are not only God’s lieutenants upon
earth . . . but even by God himself they are called gods,” said
James I;60 “L’état, c’est moi,” Louis XIV was said to have re-
marked.61 The executions of Charles I and Louis XVI, though a
century and a half apart, each represented two greater deaths:
those of God and King as transcendental signifiers.62 The philoso-
phy of the Enlightenment and the concept of the rule of law both
helped to replace the subjective justification of autocratic rule—a
cult of political personality—with a commitment to abstract rules
incapable, so it was hoped, of subversion or tyranny. Formalism
guarantees the legitimacy of law by creating a Newtonian, clock-
work system structured around rules whose authority is independ-
ent of their author, whose meaning can be objectively determined,
and whose content is not to be interrogated. Formal law is her-
metically sealed; its meaning, and therefore its legitimacy, is inter-
nal to itself and no longer vulnerable to subjective interpretation
or the need for external legitimacy. Undoubtedly, this structural
discipline is most clearly evident in the civilian codes of Europe,
but the common law too is built upon structures of obedience to
finite and determined textual authority. In terms of its own saga of
establishing legitimacy, the common law is likewise presented as a
formal system.
It is fair to say that the French Revolution, though it did not
by any means originate these ideas, was the high point of their ex-
pression. And musical classicism is the contemporaneous aesthetic
expression of the same ideals. The bright lines of classical music
and architecture displaced the decadence of baroque court mu-
sic—a cult of artistic personality—with a commitment to abstract
rules of composition and proportion. Here too, structures become
more rigid and norms of performance codified. Even more nota-
bly, aesthetic value is judged against Platonic forms based on struc-

59 CRITCHLEY, supra note 35, at 7.

60 James I, Speech to Parliament (Mar. 21, 1610), in THE STUART CONSTITUTION
1603-1688: DOCUMENTS AND COMMENTARY 12 (J.P. Kenyon ed., 1966).
61 1 THOMAS CARLYLE, HISTORY OF THE FRENCH R EVOLUTION 14 (1891).
62 See REGICIDE AND REVOLUTION (Michael Walzer ed. & Marian Rothstein trans.,
1974).
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1640 CARDOZO LAW REVIEW [Vol. 20:1621

ture, not emotion or content. The value of a piece of music is here

judged on its internal proportions and fitness, rather than by what
it depicts or represents outside of itself. Classical music, to put it
at its boldest, was not in service to a court or a King (like the ba-
roque music which preceded it), still less to nationalism or the de-
piction of nature or the narration of a myth or the conveying of an
emotion (like the romantic music that followed it). It is in service
purely to itself. The forms of classical music—the sonata, the sym-
phony, the concerto—find no reflection in the living world. Their
instances are judged according to how well they achieve purely in-
ternal and abstract criteria of value. Classicism, too, is hermeti-
cally sealed.
While the text of the Requiem speaks of a religious certainty
developed over long centuries, the musical settings of the classical
era reflect the same yearning for certainty, but derived instead
from abstract principles of reason. The unfolding laws of harmony
and composition which we hear in classical music conveys a beauty
which somehow manages to be experienced, to those who listen to
it, as simultaneously inspired and inevitable. The music flows on
with a logical pleasure, the cadences seem both inexorable yet en-
tirely unforced. These are rules which we desire to obey. Classi-
cism is, as Theodor Adorno wrote, the union of love and law.63
Mozart’s Requiem, then, is Janus-faced. It stands on the cusp
of this transition, appealing to the theological certainty of the pre-
modern through the formal legitimacy of the modern. Classicism,
according to Zizek, gives a new Enlightenment twist to the old
yearning for certainty. Romanticism, in contrast, is not only an
expression of individual subjectivity governed by emotion rather
than reason: it disallows the very possibility of objectivity. The
longing that is so characteristic of romantic music is, therefore, not
an expression of loss, but of a lack: an empty space where order
and truth ought to be. This lack cannot be overcome because it is
something that we are unaware we no longer have. It remains an
anguished emptiness which therefore can never be identified or
remedied.64
Formalism signifies the death of the author or King all the
better to preserve law’s authority. Classical music likewise privi-
leges the perfection of abstract form over subjective authorial in-
tention. And while in many respects Mozart’s Requiem is too in-
dividual, too emotional, to serve as the paradigm of classicism, in

63 See THEODOR W. ADORNO, PHILOSOPHY OF MODERN MUSIC (1973).

64 See ZIZEK, supra note 39, at 192-212.
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1999] ET LEX PERPETUA 1641

this instance it demonstrates the point vividly. Can we imagine

Schubert’s Unfinished Symphony, written only a generation later,
being completed by some well-meaning journeyman? Not at all.
By then the notion of individual genius made such an intrusion
seem sacrilegious. Yet in the case of Mozart’s Requiem, along
came Süssmayr to do the deed. Why? Because Mozart’s Mass was
not just a collection of individual pieces the interest of which lay in
their common authorship. Rather, the Requiem was part of a par-
ticular and definite genre and the aesthetic norms of classicism re-
quired that it adhere to a particular formal structure. Süssmayr
was better than an absence, because formal completion was im-
perative.
Such a lack would indeed have undermined the very message
of certainty and closure which is at the heart of the Requiem Mass.
It would have suggested incompleteness and emptiness, where the
Requiem insists instead on conclusion and eternity. It would have
revealed what in the following two centuries scholars and artists
have continued to find wherever they have searched: an empty
space where God ought to be. It is this gaping wound65 which for-
malism and classicism cannot abide. And so instead we have
Süssmayr’s Sanctus and Süssmayr’s Benedictus in Mozart’s Req-
uiem; filling the void, closing the circle.

B.
The problem with a closed system is how to get inside it.
Once a formal structure is established, its internal consistency is
the sole criteria for validity. But to enter any such structure re-
quires a transition, a concession to be bound solely by the internal
logic of the norms of the system. Rites of passage mark the os-
motic crossing of this boundary, an entrance to something which
has, and in terms of the arguments for its legitimacy, can have, no
outside. Rites of passage give the promise to be bound a corporeal
reality, and reinforce it by the continual reenactment of bodily
rituals. Our subservience is inscribed within ourselves and then
reinscribed upon the body.
Entry into the community of a church, for example, is accom-
panied by baptism, a ritual purification and rebirth in which the
corporeal element of a formal structure is more or less aggressively
acted out. To be immersed in water, not once, but three times, is a

65 See Jacques Derrida, Force of Law: The “Mystical Foundation of Authority,” 11

CARDOZO L. REV. 919 (1990).
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1642 CARDOZO LAW REVIEW [Vol. 20:1621

kind of physical assault intended to leave the initiate with a bodily

memory of a transition to a new state of being. And every com-
munion reiterates, through physical repetition, membership, and
obedience. It is the iteration of precisely the same words and bod-
ily actions—the same gestures, repeated every time by every one—
which reminds the members of a church of, and inscribes them
with, the shared mark of the system to which they are bound. So
too, the army. Often, violent rites of initiation physically break the
novitiate’s connection with the outside world and enforce their
subjection to a closed system of norms. And the daily rituals of
marching and saluting inscribe by constant repetition a hierarchy
and a collectivity, a shared and unchallengeable order.
The purpose of ritual is not to convey information; it is not
about thinking but about feeling, not about the mind but about the
body. It concerns the creation of an allegiance which is habitual in
Pierre Bourdieu’s sense of belonging to an order which our body
inhabits. “The body is the site of incorporated history.”66 The rites
of passage that transport us into a system and the rituals that hold
us there, like the internal workings of the system itself, are formal
and not substantive: empty of reasons and so unable to be rea-
soned against. In stark contrast to its own claims to a legitimacy
based on science, formalism establishes obedience not by logic but
through emotional and physical participation.
Law, as well, inducts its subjects by their participation in and
repetition of formal rites. Through these processes we acknowl-
edge both our belonging to the system and our submission to its
hierarchy. The complexities of doctrine and the rules of prece-
dent, the humiliations of the Socratic method, Inns of Court and
reading for the Bar, are all rituals of initiation which bind together
the legal profession. But these practices do not just apply to law-
yers. We are all subjects of the law, and the oath taken by a wit-
ness, formally and in the face of the court, is the prime example of
our own declaration of obedience.
It is not the truth of evidence given under oath which main-
tains the legitimacy of the legal system, but the ritual incantation
of formulae which reinscribe and reinforce the unchallengeable
authority of the rules laid down. An oath, like a vow, is a ritual
form—an unalterable formula of words and gestures—which, al-
though it claims to be about “truth,” is in fact about the submission

66 John B. Thompson, Introduction to PIERRE BOURDIEU, LANGUAGE AND

SYMBOLIC POWER 13 (John B. Thompson ed., Gino Raymond & Matthew Adamson
trans., 1991).
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1999] ET LEX PERPETUA 1643

of the witness to the internal and formal norms of the system.

Rites mark the transition of the subject from the external world to
the internal order of legal process and the fixed criteria of rele-
vance which govern it. The giving of evidence before a court re-
quires the administration of a solemn oath—not as a guarantee of
truth before the law, but rather as an act of submission to it.
Once we understand the evidential oath as the necessary
marker of a rite of passage into a formal system, the nature of the
dying declaration also comes more clearly into focus. Our journey
from life to death is a grievous transition. The dying declaration,
the last words, the will and testament: these are all rites which
mark our departure from this world and our entry into a new
structure whose nature can only be supposed.
All rites of passage require a purification and a sacrament.
We are asked to “come clean” so we can enter our new state re-
born. But what is to be purified is the passage itself, and conse-
quently, the oath or vow asks us to focus only on the transition as
we move from one state to another. The sacrament of marriage,
for example, places us before God and cautions us to speak the
truth. It is not truth in general which is commanded of us, how-
ever, but only as it concerns the rite being undergone: “if any
amongst you know any reason for this marriage not to proceed,
speak now or forever hold your peace.” The dying declaration is
another such transition, and the “coming clean” that it demands is
similarly circumscribed. We are urged to speak the truth as to the
journey we are about to undergo, which is to say, about our own
death and nothing else. It is for this reason that the admissibility of
the dying declaration is so severely limited. Cole asks, without a
satisfactory answer:
And why, above all, is such a declaration only admissible when
the accused is charged with the homicide of the declarant him-
self and is not admissible when he is charged with the homicide
of another person?67
The puzzle soon resolves itself if we appreciate that the dying
declaration is part of a formal structure of ritual and not a rational
structure of truth. In this rite of passage from life to death, it is the
passage whose purity must be ensured. Accordingly, the dying
declaration is another species of oath, a rite of passage, a formal
procedure. All that is in question is the journey being undertaken;
that is to say the only item of relevance at the moment of a dying

67 COLE, supra note 10, at 203.

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declaration concerns the nature and immediate circumstances

giving rise to the declarant’s own death.

CONCLUSION
Lex aeterna luceat eis, Domine.68
(Let eternal law shine upon them, Lord.)
Before the law, as before death, we are subject to a rite of
submission that marks our transition to its unchallengeable juris-
diction.69 The oath and the dying declaration accomplish the same
purpose, but in the context of different transitions, different pas-
sages. But what lies behind the law, what lies after death? The
answer in Mozart’s Requiem and, indeed, in Chief Baron Eyre’s
judgment in Woodcock, is straightforward: the terror of God.
And the evidential oath, in its traditional form, likewise extracts
from us a promise to tell the truth, given on a Bible—“so help me
God.”
We have seen the difficulties with sustaining this position in
the context of the modern world. But the significance of the Req-
uiem and Woodcock is that they lie on the very cusp of a transi-
tion, and they provide a classical solution to questions of legiti-
macy that were still in the process of emergence. This solution was
grounded in a pre-Enlightenment theology, yet it suggests the path
that formalism would take. For the strength of a formal system is
that, from our position within it, it is impossible to ask the question
as to what grounds its legitimacy. The Grundnorm of the legal sys-
tem,70 like that of a religious system, simply declares: I am that I
am.71 Ironically, these formal rituals of belonging become even
more important when the beliefs that once grounded them are ab-
sent. As we have seen in the context of the history of the Req-
uiem, ritual spectacle endeavors to overawe doubt, and to synthe-
size the experience of religious belief through an enactment of
emotional power. Moreover, legal formalism replaces God with a
threat equally powerful: the threat of nothingness. Not a loss, but

68 See MOZART, Lux Aeterna, in REQUIEM, supra note 1.

69 See FRANZ KAFKA, In the Cathedral, from THE TRIAL, in THE PENGUIN
COMPLETE NOVELS OF FRANZ KAFKA 161-62 (1967); JACQUES DERRIDA, Before the
Law, in JACQUES DERRIDA, ACTS OF LITERATURE 181-220 (Derek Attridge ed., 1992).
70 See Hans Kelsen, The Pure Theory of Law, 50 L.Q. REV. 474 (1934); Hans Kelsen,
The Pure Theory of Law, Part II, 51 L.Q. REV. 517 (1935).
71 Blanchot provides a provocative argument that even this tautology is unnecessary
and reflects not any desire by God to justify himself, but simply Moses’s nervous stutter.
See Thanks (Be Given) to Jacques Derrida, in MAURICE BLANCHOT, THE BLANCHOT
READER 320 (Michael Holland ed., 1995).
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1999] ET LEX PERPETUA 1645

a lack of legitimacy—an emptiness unable to be filled or re-

placed—is the fundamental crisis of formal law. But this crisis is
precisely the terror that now serves to legitimize it. Formalism
conceals its own lack, and this intensifies its power over us.
The terror of death illustrates my meaning. Without God and
eternity, we have seen how death has been reconstructed as a final
silence. But this has not made death any easier to bear—far from
it. The result has been the great concealment of death: we do not
talk about it, and we banish it from our thoughts. The dying are
cloistered away in sick beds or hospital wards—we draw the cur-
tains, speak in whispers, and tip-toe past their rooms. Not so as
not to disturb them, but so as not to disturb us.72 Death therefore
has been rendered more oppressive by the silence that surrounds
it, by its reconceptualization as an absence, a negativity.73
So it is with law understood as a formal system. Jacobi, in his
Letter to Fichte, argues that “the human being has . . . a choice, this
single one: Nothingness or a God.”74 But Jacobi ignored the third
alternative which both formalism and classicism, at that precise
moment of transition, created: Nothingness as a God. Maurice
Blanchot states:
The dead God has found a kind of impressive revenge. . . . For
his death does not deprive him of his power, his infinite author-
ity, or his infallibility: dead, he is even more terrible, more in-
vulnerable, in a combat in which there is no longer any possi-
bility of defeating him. It is a dead transcendence we are
battling with . . . .75
The law of formalism is the law of death. The forces that
drive the legal system into the insulation of formalism are the same
forces that beget our current relationship with death. The lack of
criteria for determining what we mean by substantive justice be-
comes a terror which, like death itself, we do not have the courage
to face directly. The fear of an absence of absolute and substan-
tive norms against which to judge the legal system has, if anything,
therefore only increased law’s emphasis on process and form.
Only the purely interior logic of the system is visible. Meanwhile,
in our peripheral vision lurks the fear that if we question the her-
metic circle of legal reasoning and try to find principles of justice

72 See ARIÈS, supra note 22, at 551-95; ERNEST BECKER, THE DENIAL OF DEATH
(1973).
73 See CRITCHLEY, supra note 35.
74 Id. at 4 (quoting JACOBI, LETTER TO FICHTE 138 (1799)).
75 MAURICE BLANCHOT, Reading Kafka, in THE W ORK OF FIRE, supra note 52, at 1,
7.
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1646 CARDOZO LAW REVIEW [Vol. 20:1621

by which to judge its operations, we might find nothing. This ter-

ror of the anarchy of judgment legitimates the formal structures of
law just as it prevents us from questioning the law’s substantive
underpinnings. Justice, like death, has become the great unspo-
ken. The terror that justifies today’s formal system of law is not
the terror of God’s justice, as it was in the days of Eyre and Mo-
zart. It is, on the contrary, a nameless terror brought on by the
lack of God, the lack of justice, and the barren air.
Three aspects have guided this Article’s consideration of the
way in which formal law restricts our thinking and binds us to it.
First, the historical moment and aesthetic context of its modern
formulation enables us to understand the problems which formal-
ism sets out to address and demonstrates, as any classical musician
will tell you, its power and self-sufficiency. Formalism and classi-
cism alike persuade us that their structures are inevitable yet de-
sirable. This perfect moment in which our obedience is both cho-
sen and unchosen—desire and command as one—illuminates what
it means to say that classicism is the union of love and law. Sec-
ondly, the dying declarations exception to the rule against hearsay
has demonstrated that its very status as a supplement reveals the
essential workings of the system which attempts to deny it any role
within it. What it reveals is this: the laws of evidence are con-
structed not as a promise of substantive truth, but as an induction
into formal validity. Thirdly, by treating formalism not just as a
concept but as an institution, we have seen how closely its power is
connected to bodily practices of rite and ritual. The ritual aspects
of formalism have encouraged law to remain classical because it
has no answer to the anguish brought on by romanticism.
This is an obituary, not a eulogy. Franz Xavier Süssmayr has
suffered for the sin of not being Mozart. But his work on the Req-
uiem exemplifies the formalist need for structural integrity and
completion. At heart, the formalist legal system claims to be a sys-
tem of purely internal reference—certain, objective, and complete.
Süssmayr reminds us of the utter and arrogant futility of such a
claim. So too the dream of lex perpetua, an eternal and groundless
law, is beset by weaknesses. How can we surrender our substan-
tive judgment in favor of submission to a single, formal structure
when we all belong simultaneously to multiple normative struc-
tures? Our submission to a particular normative system, or indeed
to a community, is therefore inevitably partial.76 This multiple be-

76 It is precisely this point which escapes the rather static analysis of legal interpreta-
tive communities evinced in STANLEY FISH, DOING WHAT COMES NATURALLY:
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1999] ET LEX PERPETUA 1647

longing enables us to stand outside the legal system and to talk

about justice from an external viewpoint, however problematic the
task.
The debility of formalism reflects one of the strengths of the
common law. For all the formalism of its structure, there is also a
strong streak of empiricism there, and a commitment to law as a
discursive and not a logical framework. The common law, far
more strongly than European civil law, is built on a dialogue be-
tween and interpretation of fluid legal texts as a force of under-
standing and of change. Adversarial rather than inquisitorial, mul-
tiple rather than singular, hermeneutic rather than hermetic, the
common law does not and cannot maintain the monist ideals of
formalism.
No conclusion could be more optimistic. We are all in the po-
sition of Süssmayr, filling in the gaps in other’s statements with in-
terpretative hunches of our own. That is how communication in
the common law takes place and evolves; it is built up by ambigu-
ity and interpretative disputation. Completion, a double bar line,
would constitute the real death here. Interpretative dialogue, be-
tween societies, amongst communities, over texts, is immortal
though our lives are not—immortal because imperfect.
Occasioned not by terror but by hope, this ceaseless dialogue
continues to keep alive the possibility of justice. Blanchot wrote,
There is no end, there is no possibility of being done with the
day, with the meaning of things, with hope: such is the truth
that Western man has made a symbol of felicity, and has tried to
make bearable by focusing on its positive side, that of immor-
tality, of an afterlife that would compensate for life. But this af-
terlife is our actual life.77
All our declarations are dying declarations and in this lies our ter-
ror and our hope. Dona nobis pacem.

CHANGE, RHETORIC, AND THE PRACTICE OF THEORY IN LITERARY AND LEGAL

STUDIES (1989); Stanley Fish, Dennis Martinez and the Uses of Theory, 96 YALE L.J. 1773
(1987).
77 BLANCHOT, supra note 75, at 1, 8.