Just Silences

The Limits and Possibilities of Modern Law

Marianne Constable

• Publisher: Princeton University Press
• Year: 2009
• Print ISBN:
  9780691133775
  9780691122786
• eBook ISBN:
  9781400826926
• Topic: Law
• Subtopic: Jurisprudence
• Index: Law

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"? In Just 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 Silences suggests that justice today lies precariously in the silences of modern positive law.

Table of contents

• Table of Contents
• Acknowledgments
• Prologue: Signs of Silence
• Chapter One The Rhetoric of Modern Law
• Chapter Two The Naming of Law: Sociolegal Studies and Political Voice
• Chapter Three What Voice Is This?
• Chapter Four Flags, Words, Laws, and Things
• Chapter Five Behind the Rules
• Chapter Six The “Field of Pain and Death”
• Chapter Seven Brave New Words: The Miranda Warning as Speech Act
• Conclusion
• Epilogue
• Appendix 1
• Appendix 2
• Works Cited