Just Silences: The Limits and Possibilities of Modern Law

Just Silences: The Limits and Possibilities of Modern Law

Just Silences: The Limits and Possibilities of Modern Law

Just Silences: The Limits and Possibilities of Modern Law

Synopsis

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.

Excerpt

We had to conceive of silence in order to open
our ears.

—John Cage

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 of The Music Man—continues to sing that “the civilized world accepts as unforgivable sin any talking out loud with any librarian,” to Ziggy, the comic strip character who in the 1990s sits at a library table beneath a sign that says “SHUT UP (FORMERLY SILENCE)”—the figure of silence in the library endures.

One can acknowledge the figure of silence in the library and its persistence, even as one may wonder what a silent library would be, whether libraries ever are silent, and what the various silences—if any—in a library could be. One can ponder the figure of silence in the library, that is, without the actual presence of a shushing librarian or a sign that says silence and without experience of an absolutely silent library. Our familiarity with the figure of silence may help us to think about modern libraries even though they may not be silent. So too our attachment to justice may help us to think about modern law even when we can't find a word or sign that says “justice” or a definitively just law.

Meredith Willson, The Music Man (New York: Frank Music Corp. and MW Music,
1986), 98–99.

Ziggy, Tom Wilson, August 17, 1984, Universal Press Syndicate. Comics were identified
through the Steven M. Bergson Collection of Comics Librariana, Toronto. The web site was
originally found at http://www.geocities.com/Athens/Acropolis/2161/combks/combks.html.
It was accessed again (July 31, 2003) at http://www.ibiblio.org/librariesfaq/comstrp/
comstrp.htm.

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