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Just Silences

Just Silences: The Limits and Possibilities of Modern Law

Marianne Constable
Copyright Date: 2005
Pages: 224
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  • Book Info
    Just Silences
    Book Description:

    Is the Miranda warning, which lets an accused know of the right to remain silent, more about procedural fairness or about the conventions of speech acts and silences? Do U.S. laws about Native Americans violate the preferred or traditional "silence" of the peoples whose religions and languages they aim to "protect" and "preserve"? InJust Silences, Marianne Constable draws on such examples to explore what is at stake in modern law: a potentially new silence as to justice.

    Grounding her claims about modern law in rhetorical analyses of U.S. law and legal texts and locating those claims within the tradition of Nietzsche, Heidegger, and Foucault, Constable asks what we are to make of silences in modern law and justice. She shows how what she calls "sociolegal positivism" is more important than the natural law/positive law distinction for understanding modern law. Modern law is a social and sociological phenomenon, whose instrumental, power-oriented, sometimes violent nature raises serious doubts about the continued possibility of justice. She shows how particular views of language and speech are implicated in such law.

    But law--like language--has not always been positivist, empirical, or sociological, nor need it be. Constable examines possibilities of silence and proposes an alternative understanding of law--one that emerges in the calling, however silently, of words to justice. Profoundly insightful and fluently written,Just Silencessuggests that justice today lies precariously in the silences of modern positive law.

    eISBN: 978-1-4008-2692-6
    Subjects: Law

Table of Contents

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  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. Acknowledgments
    (pp. ix-xi)
  4. Prologue: Signs of Silence
    (pp. 1-7)

    A librarian shushing a library visitor, putting an index finger to the lips or pointing to a sign that says “silence,” is a familiar image. If signs that actually say “silence” are increasingly difficult to find in libraries, and if librarians—and library designers and architects—increasingly protest that libraries no longer need nor ought to be the silent spaces of the past, then signs that say “Please Turn Off Your Cell Phones” nevertheless are still somewhat in evidence, in the New York Public Library, for instance. And in popular culture too—from Harold Hill, who—in high school renditions...

  5. Chapter 1 The Rhetoric of Modern Law
    (pp. 8-44)

    One often hears that an absence of voice is an absence of power and an absence of justice and, conversely, that voice means empowerment and justice. In this context, one might well expect “silences of law” to mark the place of the oppressed, of victims, of the powerless and the voiceless at law. That is surely one aspect of law’s silence, but the silences of law are many. They gesture not only toward the justice to be found in laying claim to voice and to the power to be had in speech, but also toward the possibilities of justice that...

  6. Chapter 2 The Naming of Law: Sociolegal Studies and Political Voice
    (pp. 45-73)

    The prologue to this book suggested that law may be silent about justice. Chapter 1 explained the implications of the claim: the silence of modern law raises the question of nihilism. Chapter 1 went further than the prologue and suggested that sociology too may be silent about justice in a particular way. The present chapter takes a step back from chapter 1 to address a possible response to the prologue. If the silence of law is taken to mean that law does not talk much about justice, then one response is that although law doesn’t talk much about justice, it...

  7. Chapter 3 What Voice Is This?
    (pp. 74-92)

    The two preceding chapters have suggested a “sociologization” of contemporary law. The sociologization of law involves, first, an insistence that law is a social and empirical, and hence sociologically knowable—a socio-logical—phenomenon. It involves, second, a privileging, in accounts of law, of efficacious power or control, however indirect or variously attributed. This chapter turns to a third aspect of the sociologization of law: the pervasive privilegingat lawof the kind of discourse that corresponds to a sociological worldview. Analyses of the Native American Languages Acts and the Native American Graves Protection and Repatriation Act reveal the sociologically discursive...

  8. Chapter 4 Flags, Words, Laws, and Things
    (pp. 93-110)

    In response to the prologue’s suggestion that modern law doesn’t say much about justice, chapter 2 considered what (sociology says) law does. It found that sociology doesn’t say much about law doing justice either, although (like other voices) sociology may call to justice. Chapter 3 claimed that modern law, like much sociology, may not hear certain things. This chapter now turns to what law does say and hear, by focusing on the American flag-burning cases that extend First Amendment protection of freedom of speech to symbolic speech.

    The chapter again proceeds on two registers. First, the Supreme Court opinions show...

  9. Chapter 5 Behind the Rules
    (pp. 111-131)

    What happens to the avowals of law—the chain of claims and responses that call to and for justice—when words become the resources of a technical age? This chapter and the next turn to the rules and institutions of modern law to take up the issue of what becomes of law and justice in a technical age. This chapter supplements the brief discussion of the rulelike character of legislation from chapter 3 with a more sustained look at rules and what they can tell us about modern law and its possibilities of justice. It is worth noting that the...

  10. Chapter 6 The “Field of Pain and Death”
    (pp. 132-148)

    Chapter 5 looked at Schauerʼs positivist account of law as a social system of rules to show that possibilities of law and justice are not what they used to be. Justice, if any, lies in an ambiguous silence behind the statements of rules of modern legal systems. Robert Cover offers an even bleaker view. He argues in “Violence and the Word” that behind modern law lies a social organization of violence that denies its own violence.¹ “Legal interpretation,” he writes, “takes place in a field of pain and death” (203).

    Like Schauer’s account of rule-bound decision-making, Cover’s account of a...

  11. Chapter 7 Brave New Words: The Miranda Warning as Speech Act
    (pp. 149-174)

    Well known to a television-watching public as signaling the successful apprehension of a suspect at theendof a show, the often droning recitation of theMirandawarning also marks abeginning: the entry of a suspect into the formal legal process. Warning the accused that he has a right to remain silent, that any statement he does make may be used in evidence against him in a court of law, and that he has the right to the presence of an attorney, either retained or appointed, is, according to the 1966Miranda v. ArizonaU.S. Supreme Court decision, a...

  12. Conclusion
    (pp. 175-178)

    Four themes emerge from the preceding chapters.

    First, modern law is a social and sociological phenomenon. It is an object of sociological knowledge that is taken to be a human and social creation (chapters 1 and 2). Modern American law is informed by sociological research, as legislation concerning Native Americans shows (chapter 3). It shares with the social sciences a linguistic and technical understanding of language, manifest in the flag-burning opinions (chapter 4). Its rules (chapters 3 and 5) and institutions (chapters 5 and 6) are considered social in the senses of being and causing social effects and being and...

  13. Epilogue
    (pp. 179-179)

    Were I to write this book again, it might be much shorter. It would say:

    “Law on the books doesn’t talk much about justice.”

    Then I would wait for someone to say: “It doesn’t talk much, but it says much,” or “Yes, it does” and to explain.

    But maybe instead of waiting quietly, I—or the persons I was talking with—would first say:

    “Maybe it’s taken for granted.”

    “Maybe it’s unclear what it means.”

    “Maybe it isn’t there anymore.”

    And one of us would add, “In any case it’s hard to talk about.” Although I myself would have to...

  14. Appendix 1
    (pp. 180-180)
  15. Appendix 2
    (pp. 181-182)
  16. Works Cited
    (pp. 183-195)
  17. Index
    (pp. 196-204)