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Just Silences
The Limits and Possibilities of Modern Law Chapter One
THE RHETORIC OF MODERN LAW Failing to remain silent about things one cannot speak of is what philosophers (and many others) do for a living. -Michael Wood, Children of Silence
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 lie in silence.
This work inquires into modern law, its speech and silences, and its relation to what is arguably the traditional concern of jurisprudence-justice. It draws on texts of and about contemporary U.S. law, attending to their language and silences, to open a new perspective on current positivist understandings of law that deny the necessity of a connection between law and justice or (what amounts to the same thing) consider that connection to be sociallycontingent. The work explores the loquaciousness-the discursive power-that sociolegal studies, political theory, and legal scholarship alike often posit-whether as attribution or aspiration-of modern law and of its speaking subject. The work argues that the justice of modern law lies precisely in positive law's ostensible silences-which is not to say, despite the current predominant identification of silence with lack, that justice is absent. Neither is it to say that positive law is just. Rather, the conditions of justice, like those of Kantian equity-"a silent goddess who cannot be heard"-cannot be stipulated or definitively pronounced.
This chapter presents in broad strokes the issues and arguments of the book. It shows what is at stake in modern law: a potentially new silence as to justice. The first section of the chapter begins with modern law and the issue of its relation with justice. The second section shows how rhetoric approaches such an issue. The third section introduces the sociolegal positivism that today raises the question of modern law and justice most tellingly. And the fourth section shows how that question resounds with what Friedrich Nietzsche, the master rhetorician with ears behind his ears, long ago heard as the question of nihilism. In brief, Just Silencesconcerns modern law. It considers what is particular to law as modern and hence within a tradition. This chapter identifies the tradition of modern law as that of Western jurisprudence. The history and rhetoric of jurisprudence shows that one very striking feature of modern law-its social and sociological character-has not always been so. Nietzsche offers one nonsociological account of the "social" that we moderns, as he puts it, find so compelling; Heidegger another. Both turn our attention to issues of the metaphysics of law and knowledge that contemporary sciences, including sociology, largely ignore.
Law Today
Most texts of and about law today take law to be a social phenomenon. All manner of scholars take even religious law and customary law to be products of the societies of their times. Even scholars interested in what they would call the "normative" aspect of law situate law in an empirical social world. That "society" is real, that "reality" is social and empirical, holds such sway that one wonders what else law could possibly be.
Conceptions of law as an instrument of social power-as positive law-often accompany the attribution of law to the empirically knowable social or societal realm. Sociology is clearly not the same as legal positivism; there are many differences and debates within sociology; and scholars and authors may not themselves believe or intend what their texts seem to presume. The chapters that follow take sociology to refer in a broad sense to the disciplines that grasp law as an emphatically social or societal phenomenon. Likewise, there are a number of views of legal positivism and of debates within it; this book does not deal with all of its intricacies, although some of its complexity will emerge in the course of discussion. Roughly speaking, philosophers compare legal positivism to theories of natural law, which holds that an unjust law is not a law. Legal positivism maintains that the existence of law is one thing; its justice another. Positive law is human-made law. This book shows how, despite their variations and differences, sociology and legal positivism are often implicated in one another in particular ways. This implicatedness of legal positivism and sociology pervades not only legal positivism and sociological scholarship but also modern law.
The book situates what it thus calls sociolegal positivism as but one moment-admittedly the current moment-in the history of Western jurisprudence. Rather than rejecting sociolegal positivism, the social character of law or positive law as such, the book accepts as starting point the existence and social character of the positive law of the United States. It indeed draws attention to the positivist and social character of law in both avowedly positivist and ostensibly nonpositivist modern legal texts. These texts range from U.S. legislative documents and judicial opinions to law reviews and newspaper articles, sociolegal studies, and philosophical works.
The work argues-with Nietzsche, as shall be explained below-that current attachment to positive law and to the empirical and social reality of law, reveals a way (but not the only way) of conceiving of law and justice. It reveals not only a modern "conception" of law, but modern law. The work claims further that law has not always been positivist, empirical, or, broadly speaking, sociological. Nor need law always be so. Contemporary sociolegal positivism, like every other way of thinking about law, has its own particular extension and limits-and, at those limits, its own particular openings to what Heidegger and Foucault have called the unthought.
One can identify a cluster of characteristics around which legal positivism and sociology converge. First, as mentioned above, sociolegal positivism relegates connections between law and justice, if any, to empirically contingent social realities. Second, as the following chapters will show, sociolegal positivism presumes that positive law is humanly articulable power in at least one of two senses: as the declarations of officials or in scholars' descriptions-conceptual or empirical-of the order and dynamics of human social systems. Even when positive law is not the command of a distinct human sovereign or the official unification of a system of rules, it appears as a humanly made creation of society-whether as norms or practices or network of institutions-that is describable in sociological terms. Third, sociolegal positivism postulates the completeness of positive law as law. Legal positivism holds that there exists no law outside of that recognized by human positive law and that anything recognized as law is positive law. Sociology, whether attributing the determination of law to particular human actors or to social structures or everyday norms, views law as exclusively social. Sociological positivism, then, as shall be discussed in the section "Sociolegal Positivism," in effect maintains that any so-called law that precedes a given legal positivist system was itself socially powerful in the manner of positive law or was not really law at all. Sociolegal positivism thus tends toward peculiarly exhaustive and ahistorical accounts of powerful and controlling law that functions as instrument or strategy within a field of social power. The sociological and positivist commitment of our age-to the human determination of guidelines concerning what exists-threatens to discount as law anything that is not positivist and sociological-including past law.
Describing aspects of sociolegal positivism in the manner of the preceding paragraph can help identify the extensiveness and limits of modern sociolegal positive law, but it fails to show law's nonpositivist possibilities. For language, too, as the following chapters will show, is itself often grasped nowadays as an empirical, positivist, sociological phenomenon, as an expression of power or as a tool to be marshaled in the service of power. To not only identify the extent and limits of an articulate, powerful, existent modern law, but also to recognize its possibilities, one must listen to the silences of modern law and of its language.
Turning to silences suggests possibilities of relations between law and justice that are not articulated or articulable in the terms of legal positivism and that do not exist as the empirical realities of strategic social power. This turn to silence runs against much contemporary work that talks of both law and language as the powerful resources of society in a technical age. The turn to silence highlights contemporary talk about law and language precisely to ask how law and language might be otherwise than in usual talk. It does so, again, not to discard or dismiss positive law, which is indeed modern law, but to explore openings and possibilities of law and justice that sociolegal positivism, in its commitment to the social and empirical character of law and language, does not recognize. The silences in the texts of law today are far from empty. They speak not only of limits, but also of possibilities, of justice in the contemporary law associated with actual empirical and social reality.
Far from securing a definitive truth about law, this work seeks to open-and keep open-questions about law and about law and justice. Unlike legal positivism, the work does not attempt a descriptive theory-whether empirical or conceptual-of law or legal systems; unlike sociology, it does not set out to describe as such the particular legal system that is admittedly its ground. But if the questions this work raises are not those of legal positivism and sociology, neither are they those of natural law. The work claims neither to represent existent relations between law and justice nor to prescribe what those relations should be. The concern rather is with the possibilities of modern law. The work is not a predictive enterprise, though. Rather than predicting what law will be, it recalls to modern law possibilities that already will have been.
In other words, within the context known loosely as that of "Western thought," this work explores the law of a necessarily particular time and place: the United States of the late-twentieth and early-twenty-first centuries. The work reads conventional texts of sociolegal studies, of law, and of legal theory that are taken in this time and place to say something about language and silence, power and voice. For many in this time and place, the most obvious silences in contemporary law and politics are those of the powerless. But one also finds many silences of power-of contempt, of entitlement, of authority, of resistance. This work deliberately shifts focus from the familiar silences-and the familiar discourses-of power and powerlessness to the sometimes neglected silences of justice.
The silences of justice that accompany contemporary law vary. Like the familiar hush of a library in which words allow things to come to presence in reading, silences of justice in the law may allow things to be heard. But just as libraries may differ and silences vary, so too does law and do its silences, as the chapters that follow show. Each chapter refers to both limits and possibilities of modern law. In each chapter, the language of modern law shows the extent and limits of modern law and its language; in the interstices and at the limits of language, silences point to law's possibilities.
Chapter 2 first shows how sociolegal studies generally treat both law and language as matters of power, while remaining silent as to justice. The chapter then shows how appeals to voice, while also often articulated in terms of power, may call to justice even when justice is not mentioned by name.
Chapter 3 points to aspects of language and religion not captured in legislation designed to protect Native American culture. The chapter highlights the notably discursive and articulate, social scientific, rulelike formulations of law in U.S. legal and political forums, while suggesting that there are possibilities of language and law that U.S. law and social science do not hear.
Chapter 4 looks at speech, law, and politics in the U.S. Supreme Court flag-burning opinions and in discussions about them. The chapter shows the pervasiveness in law today of conceptions of speech that grasp language as the resource of a technical age. But the chapter also shows how words of law simultaneously claim and respond to calls for justice.
Chapter 5 focuses on Frederick Schauer's presumptive positivism as an example of work that takes law to be a social system of rules. That justice drops out of Schauer's work on rules suggests both the limitations and possibilities of rule-based approaches to law. The silence about justice in social systems of rules reminds us that in modern law, possibilities of justice lie not in statements of rules themselves, but behind the rules, in the silences where statements of rules run out and responsive action and judgment paradoxically begin anew.
Chapter 6 contrasts the silence about justice in Robert Cover's "Violence and the Word" with some of the more oblivious textual silences that have come before. Cover's silence gestures toward a need for justice-or at least toward its shocking absence in increasingly pervasive conceptions of law as violence or social control. If modern law, for Cover, plays on a "field of pain and death" in which no common "normative" world is possible, Cover also implicitly appeals to a relating of persons and world that is prior to the betrayal represented by the field of pain and death, in which human beings need a common world. Out of this relating issues law. Law is the correspondence of what Cover calls a "normative order" to the human need for it. Such correspondence opens the possibilities of both the just and unjust in our world, including the possibility of what Cover here judges to be the violence and lack that characterizes modern law.
Finally, chapter 7 turns to one of the most well-known silences of law, the American right to remain silent. The formulation of this right in Miranda v. Arizona helps show how silences of modern law point to issues that go beyond knowledge of the social. The opportunity for silence offered to an accused by the Miranda warning reveals an engagement with a possibility of just speech that is not simply an instrument or tool of social power. Contrary as it may be to accounts that emphasize the discontinuity of formal law and legal institutions from ordinary life, Miranda (and the law of evidence) recognizes, with J. L. Austin, that the justice of a trial depends on a hearing in which the judge (or jury) who speaks the verdict can presume that conventions of proper speech have been met.
In what follows then, Just Silences attends to legal texts for what they say and don't say about justice. Sticking largely to texts of and about positive law, Just Silences listens to what is not positivist in law, to what is not clearly articulated and articulable at law, and to what is just. Its claims about justice are not normative or prescriptive. It refuses to relegate the justice of law to empirically contingent social realities. It reveals a multiplicity of legal silences and of possible implications for justice at precisely the limits of positive law, where the language of power and the power of language run out.
It suggests that words call through voice to justice, even when "justice" is unsaid. Law is the chain of claims and responses calling to justice. Law binds us to our world. It issues from silence as the declarations that co-respond with, and correspond to, the human need or necessity out of which voices appeal to justice. From law-the complex correspondence and binding of persons to a world that emerges with the calling, however silently, of words to justice-arise the possibilities of the just and the unjust in our world.
That judgments of justice and injustice today issue from law constitutes a reversal of an earlier tradition (see "The Problem of Nietzsche" below) in which law issued from justice. Positive law rejects any prior necessity or binding of justice. It is a human and social creation. Its necessity lies in the social force or pressure that produces-through compulsion or persuasion-the obedience of subjects. It appeals to technological concepts of social reality-such as legitimacy, welfare, efficiency-to design a correspondence between social needs and social policy. From social study and opinion issue evaluations of the design and fit of law to society and society to law. Claims of, and responses to, positive law are made in terms of the values-equality, liberty, fairness, toleration, self-rule-of society.
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Excerpted from Just Silences by Marianne Constable Copyright © 2005 by Princeton University Press. Excerpted by permission.
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