JUST SILENCES: THE LIMITS AND POSSIBILITIES OF MODERN LAW

Vol. 16 No. 5 (May, 2006) pp.384-386

JUST SILENCES: THE LIMITS AND POSSIBILITIES OF MODERN LAW, by Marianne Constable. Princeton: Princeton University Press, 2005. 232pp Cloth. $29.95 / £18.95. ISBN: 0-691-12278-4.

Reviewed by Paul Parker, Truman State University. Parker [at] Truman.edu

Marianne Constable has produced a book that socio-legal scholars will want to wrestle with. And wrestle they will, both because the argument is provocative, and because often it is carried on at a level of abstraction to require wrestling. This review will attempt to provide access to both of these dimensions of the argument.

In a nutshell, legal scholars and socio-legal scholars do not have much to say about justice these days: modern legal scholarship is silent about justice. Constable does not think that this silence is a just (right) silence, or that it is just (mere) silence, but instead she argues that this silence speaks volumes about the state of legal scholarship and indeed about our incapacity to speak of justice: “Modern law, with its language of sociology and of power, fails to acknowledge any debt to what is unsayable. In this failure lies the particularity of the silence of modern law: it is a silence in which justice threatens to disappear” (p.177).

The book is organized around a prologue, seven chapters, a conclusion, and an epilogue. It might be helpful to begin with the Epilogue, about half of which is produced here:

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 resist adding to this book, the book would just say:

“Yes, that was my point.” (p.179)

That point is made more clearly and fully across seven substantive chapters. Constable argues that the dominant manner of thinking about law today, sociolegal positivism, “is a symptom of current conditions, in which ‘social power’ or the power of society threatens to become the sole or unlimited frame of reference for knowing the law – or determining what to do” (p.34). Drawing on Nietzsche’s TWILIGHT OF THE IDOLS, Constable places our contemporary study of law, legal positivism, in a fourth moment of metaphysics. Gone is the Truth of Plato, the Truth of the Christian thinkers, and the moral Truth of Kant, known by reason; here in stage four, we have empirical “truths.” Perhaps we have a foot in the fifth period, to the degree we want to use such “truths” to improve society (pp.34-40). But in the absence of natural law, or other universals; in an age of relativism; there is no Truth: how, then, can one speak of Justice? [*385] Constable’s goal is to invite us to consider stage six, when “justice and the true world have been abolished” (p.41). In this final stage, justice “lies in the silences of positive law” (p.43).

And thus over the next several chapters, Constable explores how “completely embedded in power is current thinking about law.” In Chapter 2, “The Naming of Law: Sociolegal Studies and Political Voice,” Constable argues, with many refereed examples, that sociolegal studies imagine silence as lack of power (p.55). Constable asks whether we might hear silence not as a problem to be solved through defining it as consent (Locke) or providing voice to the voiceless (Habermas). Instead, silence might actually promote justice in some forums, as she explores in regards to MIRANDA warnings in Chapter 7.

In the third chapter, Constable discusses further our present assumptions that law is empirically knowable, and that law is about power or control. She challenges our assumption that voice is empowerment using two cases of legislation that sought to provide voice to American Indians. The Native American Languages Acts of 1990 and 1992, and to the Native American Graves Protection and Repatriation Act of 1990 provided a mechanism for American Indian voice to be preserved, or exercised, respectively. But maybe some things are unspeakable: while the government established a channel for voice in the repatriation of Indian artifacts, perhaps the sacredness of religion prohibits the speaking. And while the Great White Father may think it important to preserve dying languages, she relates the story of the speaker of a dying native language who was uninterested in talking with another speaker for the sake of preserving the language. Some things matter more than voice: He really did not like her kind.

And perhaps some things should not be said, or heard. In the fourth chapter, Constable considers popular and press reaction to the Supreme Court’s flag burning decisions. After TEXAS v. JOHNSON (1989) public officials sought to amend the Constitution, or otherwise negate the court ruling. Against the popular narratives that such scheming politicians were strategically trying to evade “the law” as announced by the Court, Constable asks us to consider whether some things are held sincerely to be unspeakable – or unhearable.

The next two chapters address contemporary legal theory directly. Chapter 5 focuses on Frederick Schauer’s positivism, and it is nicely tied to Chapter 6 on Robert Cover and the violence of law. Schauer, in PLAYING BY THE RULES, “does not deny justice; he barely asserts its irrelevance.” Continuing, “But silence as to justice, in a work on rules that suggest it provides an account of ‘law; as we conventionally call it,’ does say something” (pp.130-31). Cover provides an account of the violence of positive law and is critical of the interpretive move in law. However, Constable argues, it is in this overlooked arena – this silence – we might find justice (p.135; p.148). Just as the violence of modern law warns of the danger of forgetting justice, so does the overlooked arena of interpretation: “The [*386] poet . . . may still remind persons of their need for justice” (p.148).

In Chapter 7, “Brave New Words: The MIRANDA Warning as Speech Act,” Constable argues “the possibility of a just trial relies in part on an understanding of speech that is itself inextricably joined with silences (p.150). This case is Constable’s example of how her new way of thinking about law and justice might proceed.

Prior to the Epilogue, there is a four page conclusion in which Constable identifies four themes of her work: modern law is a social and sociolegal phenomenon, in which justice and its possibility appears lacking, aided and abetted by language, except for the language of justice (pp.175-76). Rounding out the text are two appendices (Nietzsche’s six stages, and a letter to the editor she analyzes in an early chapter), a bibliography (modal entries: Heidegger, Constable, Nietzsche, Sarat, Freud) and an index.

Scholars interested in law and power and the construction of knowledge will benefit from thinking about the state of legal knowledge and the law in this, our metaphysically fourth or fifth real world. The entire book will be of most interest to sociolegal scholars, many of whom will recognize the individual chapters from their appearance in journals over the past 15 years. That the majority of the substantive chapters have been articles means some chapters are quite accessible as stand-alone pieces, especially Chapter 3 on laws promoting American Indian voice, and Chapter 4 on flag burning. On the other hand, Schauer’s positivism and Cover’s violence (p.6) fit together in ways that aided each. For those interested in an accessible critical treatment entrée into sociolegal studies, Chapters 1 and 2 may be sufficient. Consistent with the aim of her project, considering the silences of laws in the myriad ways is provocative.

REFERENCES:

Nietzsche, Friedrich. 1968. TWIGHTLIGHT OF THE IDOLS. (trans. R.J. Hollingdale). London: Penguin.

Schauer, Frederick. 1991. PLAYING BY THE RULES: A PHILOSOPHICAL EXAMINATION OF RULE-BASED DECISION-MAKING IN LAW AND IN LIFE. Oxford: Clarendon Press.

CASE REFERENCES:

MIRANDA v. ARIZONA, 384 US 436 (1966).

TEXAS v. JOHNSON, 491 US 397 (1989).

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