Words can be misspoken, misheard, misunderstood, or misappropriated; they can be inappropriate, inaccurate, dangerous, or wrong. When speech goes wrong, law often steps in as itself a speech act or series of speech acts. Our Word Is Our Bond offers a nuanced approach to language and its interaction and relations with modern law. Marianne Constable argues that, as language, modern law makes claims and hears claims of justice and injustice, which can admittedly go wrong. Constable proposes an alternative to understanding law as a system of rules, or as fundamentally a policy-making and problem-solving tool. Constable introduces and develops insights from Austin, Cavell, Reinach, Nietzsche, Derrida and Heidegger to show how claims of law are performative and passionate utterances or social acts that appeal implicitly to justice.
Our Word Is Our Bond explains that neither law nor justice are what lawyers and judges say, nor what officials and scholars claim they are. However inadequate our law and language may be to the world, Constable argues that we know our world and name our ways of living and being in it through law and language. Justice today, however impossible to define and difficult to determine, depends on relations we have with one another through language and on the ways in which legal speechthe claims and responses that we make to one another in the name of the lawacts.
About the Author
Marianne Constable is Professor and Chair of the Department of Rhetoric at UC Berkeley. She is the author of Just Silences: The Limits and Possibilities of Modern Law(2005) and The Law of the Other: The Mixed Jury and Changes in Conceptions of Citizenship, Law and Knowledge (1994), winner of the Law and Society Association's J. Willard Hurst Prize in Legal History.
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Our World Is Our Bond
How Legal Speech Acts
By Marianne Constable
STANFORD UNIVERSITY PRESSCopyright © 2014 Board of Trustees of the Leland Stanford Junior University
All rights reserved.
How to Do Things with Law
Law is a profession of words.
—David Mellinkoff, The Language of Law, p. vi
Like the White House's concern with Obama's oath, current U.S. law manifests broad respect for and simultaneous wariness about the potency of speech. As the Introduction notes, law regulates many areas and aspects of speech, not only through First Amendment jurisprudence but also, for instance, through criminal law, evidence law, and intellectual property law. Legal actions produce or review not only government documents but also private agreements, publications, and publicly displayed art. Law criminalizes some speech: forgery, fraud, libel, perjury. Civil and criminal procedures establish conditions of speech and expression, while also occasionally mandating that particular utterances be understood in particular ways.
Language cannot be bracketed as simply something that law regulates, however. Language permeates law. Lawyers use language to draft innumerable legal acts: complaints, wills, briefs, contracts, deeds, regulations, legislation. Not only lawyers, but also notaries, city clerks, regulatory officers, legislators, juries, civil servants, and the many others with whom, against whom, or on whose behalf these identifiably legal agents work, engage in recognizably legal acts involving speech: notarizing, notifying, petitioning, declaring, convicting, acquitting, bequeathing, amending, transferring. Formal legal declarations, such as jury instructions, verdicts, trial rulings, appellate decisions, local resolutions, administrative appointments, state and federal legislation, are prepared, announced, scrutinized, and challenged in legal actions that take place through language and must themselves accord with legally prescribed mandates and standards.
This chapter discusses the attention and care that U.S. law bestows on language and speech while foreshadowing themes to be developed in the next three chapters. The first section introduces the terminology of speech acts to show how U.S. law recognizes, beyond grammar and the meaning of words, the "actlike" or "performative" quality of speech. Legal claims in particular seem to correspond to the conventional acts and procedures that J. L. Austin identifies with the "illocutionary" aspect of utterances. But, Section Two continues, insofar as legal claims seek to persuade others, they also appear to be "passionate utterances," in Stanley Cavell's terms. The persuasive or passionate aspect of legal claims, like U.S. law's occasional acknowledgment of its own limitations as to speech and hearing, complicates accounts of law that would identify it strictly with conventional speech acts. Modern law is bound to language: It uses language, and language is not completely within its control. Attending to legal language thus supplements current accounts of law offered by empirical studies and by the legal positivism that predominates in contemporary philosophy of law, Section Three concludes. Law is not necessarily a matter of power or coercion, nor of higher morality or natural or divine justice, nor even of procedural fairness. Or rather, even when law is those things, it is also always a matter of language.
One. Speech Acts of Law: J. L. Austin
Most readers are familiar with some of the ways that vocabulary and grammar are implicated in legal disputes. Ross Charnock points to an English-language example of a dispute over words in which Justice Gray in 1893 held that tomatoes were vegetables for the purposes of the Tariff Act of 1883: "In the common language of the people [...] all these are vegetables, which are [...] like potatoes, carrots, parsnips, usually served at dinner with the fish or meats [...], and not, like fruits generally, as dessert" (Nix v. Heddon, 1893).
In jurisprudential discussions today, the most famous example of disputes as to the meaning of words involves what counts as a "vehicle" in the context of a rule prohibiting vehicles in a park. H. L. A. Hart uses the hypothetical question of allowing "a toy motor car electrically propelled" into the park to discuss the indeterminacy of general standards that regulate conduct. "When the unenvisaged case does arise," he writes, "we confront the issues at stake and can then settle the question ... In doing so we shall have rendered more determinate our initial aim, and shall accidentally have settled a question as to the meaning, for the purposes of this rule, of a general word." The use of the future perfect ("shall have rendered ... and ... settled") implies the resolution or closure of a formerly open issue. Charnock notes that, in 1951, Chief Justice Goddard had considered a poultry shed to be a vehicle "within the meaning of § 1 of the Road Traffic Act of 1930" (in Garner v. Burr, KB, 1951). Twenty years earlier, U.S. Justice Holmes had held that an aircraft was not a vehicle for the purpose of transportation across state lines (McBoyle v. U.S. 1931). Such differences, as Lon Fuller points out, of course turn at least in part on the context of the dispute and on the purpose attributed to the statute or rule ostensibly controlling the case.
Many cases make explicit the link between a determination of meaning and the purpose or context of the statute or rule under which the determination is made, even if they do not go so far as to explicitly acknowledge the strange retrospectivity suggested by Hart (and taken up in Chapter Two). A 2004 U.S. Supreme Court case, for instance, considers whether a Florida DUI (driving [a motor vehicle] under the influence of alcohol) offense counts as an "aggravated felony" for the purpose of deportation under the Immigration and Nationality Act (INA). The Act defines aggravated felony to include "a crime of violence" for which the term of imprisonment is at least one year. The U.S. Code (Title 18, sec. 16) in turn defines a crime of violence as "an offense that has as an element the use ... of physical force against the person or property of another." Did appellant Leocal's conviction of two DUI offenses for which he was serving time in prison constitute such an offense? An immigration judge and the Board of Immigration Appeals had ordered Leocal's deportation, and the Eleventh Circuit affirmed. On further appeal, though, the Supreme Court pointed out that the Florida statute does not require that an offender have any particular mental state (and that other DUI statutes require only proof of negligence). Insofar as use means "active employment," the Court argues, the Code implies that a "crime of violence" requires "active employment" of force. That someone "actively employs" physical force against another, reasons the Court, requires a higher degree of intent—or purpose—than does the negligent or accidental conduct required for conviction of DUI offenses. Purpose thus appears doubly relevant in this case of ascertaining whether a DUI conviction is an aggravated felony: It refers both to the reason for making the determination (deportation under the INA) and to the kind of "intent" or manner that is attributed to one who is convicted of DUI.
In another recent immigration-related case, the U.S. Supreme Court also considered an adverb of intent or purpose, "knowingly." Ignacio Flores-Figueroa had presented to his employer forged documents that, unknown to him, bore numbers assigned to real people. He was convicted not only of document fraud but of a federal felony, "aggravated identity theft," which carried with it an additional two-year sentence. At issue was in part the identity-theft statute's requirement that an offender "knowingly transfers, possesses or uses, without lawful authority, a means of identification of another person." In overturning the additional charge, Justice Breyer argues that "it seems natural to read the statute's word 'knowingly' as applying" not only to the verbs in the text, but "to all the subsequently listed elements of the crime." He reasons that "if we say that someone knowingly ate a sandwich with cheese, we normally assume that the person knew both that he was eating a sandwich and that it contained cheese."
What "seems natural" and what "we normally assume" coincide for Breyer in this case but may leave one wondering about what "we" are to make of the legal meanings of "vehicles" and perhaps even of "vegetables." Interpretation of statutory language has generated its own literature and norms of the "natural" and "ordinary." Words are to be given their "ordinary or natural meaning." Effect should be given to every word of a statute—whenever possible. The assessment of possibility involves judgment of course. Like rules of writing and of law (discussed in Chapter Two), ostensible rules of statutory interpretation may work as guidelines or as rules of thumb. They never completely determine the outcome of a case, however; nor do they guarantee acceptance of the interpretation or rationale contributing to the outcome or of the decision that announces it.
Neither do the meanings of words warrant that particular articulations will be taken as decisive or authoritative. For particular articulations to "count" as U.S. law or for particular rules or outcomes to "take," that is, not only must words be considered to suit their purpose in context, as already shown in discussion of the meaning of statutory language, but institutions must exist and particular conditions must be met. No matter how beautifully and adequately legislation is drafted, it does not officially become law until its enactment. No matter how well written and reasoned the opinion of a law student or law professor, such opinions remain "mock." Only under certain conditions, when presented by a judge within a particular jurisdiction, which is itself an institutional matter, are opinions taken to be law.
The points of the preceding paragraph are not new. They are raised here because they serve as background against which to understand, first, the relevance of speech acts to law and, second, the way in which legal utterances are like other sorts of utterances. In depending for their success as law not only on the meaning of words but also on the circumstances in which they are spoken, utterances of law are like other kinds of speech. To hold, to dissent, to charge, to enact, to marry, to convict, are what J. L. Austin, followed by John Searle, Stanley Cavell, and others refer to as "speech acts." All such utterances depend on the circumstances of their uttering. Even legal utterances that ostensibly state propositions succeed or fail in part on the basis of something other than their meaning or the truth or falsity of what they state. Assessments of findings, for instance, no less than assessments of other legal utterances, are not exhausted by the truth value of what they mean or state. A judgment may be based on a false finding, that is, but it is still a finding. Conversely, truths may fail to be found and relevant propositions may fail to be included as findings.
In Austin's formulation, performative speech acts include promising, warning, betting, declaring, appointing, and other utterances that are or are part of the doing of an action. Austin at first distinguishes performative utterances from constative utterances, which describe things or state propositions (3, 6). To utter "I promise I will come tomorrow" in the appropriate circumstances is "not to describe my doing of what I should be said in so uttering to be doing" or to describe my promising, according to Austin. Neither is it "to state that I am doing it." Rather "it is to do it" or to promise (6). Legal speech acts often do what they say in their doing. "I object," spoken in the appropriate circumstances, is not to describe my objecting or to state that I am objecting (nor is it to cause the objection, discussed further in Chapter Three). In proper context, it is objecting or the act of objection. And it can be put, and indeed here appears, in the explicit form of a first-person present indicative active sentence like "I hold ..." or "We find ..." (61–62).
As we shall see, the strong distinction between performative and constative utterances with which Austin begins breaks down, as he himself points out. Findings for instance both state propositions and, in being stated, formally find that something is the case. They are both constative and performative, in Austin's original formulation. The distinction is nevertheless pedagogically helpful because it highlights the difference between understanding utterances as static or nounlike sentences or statements or propositions and understanding utterances or uttering as dynamic or verblike acts or activities of language. Focusing on law as statements or propositions of facts or of rules, as some do, tends to draw attention away from law's performative or actlike character. Consider one way of teaching students to read (and brief) a standard first-year criminal-law case such as Morissette v. United States (see Appendix B). The instructor asks, following identification of parties, procedural status, description of facts, and so forth, for the issue, rule, analysis, and conclusion in Morissette. Morissette was convicted of conversion, under a federal statute, for gathering spent bomb casings from federal land. Apparently thinking they were abandoned property, he sold them. The Appellate Court affirmed Morissette's conviction. Having established these "facts," the class turns to the issues and the reasoning by which the Supreme Court reverses the appellate court's affirmation of the conviction. Students then read Morissette for its articulation of "rules": that wrongful intention is a requisite element of criminal liability; that in omitting reference to intention and referring to "knowing conversion" in its statute, Congress did not intend to create a new category of crime (unwitting conversion); and that, where intent is an element of a crime, trial court instructions raising a presumption of intention from the evidence are in error.
If the opinion is read as it is written, however, the Supreme Court in Morissette tells a story, which telling is itself a speech act, of the series of speech acts leading up to and comprising the announcement, again a speech act, of the Supreme Court judgment. The Court opinion reports (a speech act) that: under investigation, Morissette "voluntarily, promptly and candidly" told his story to investigators who nevertheless indicted him under a U.S. statute for "unlawfully, wilfully and knowingly steal[ing] and convert[ing] property of the United States." Indictment is of course a speech act. At trial, Morissette testified—another speech act—that he thought the casings were abandoned and that he had taken them "with no wrongful or criminal intent." The judge then instructed (speech act) the jury as to a presumption of intention in such a way that the trial court "convicted and sentenced" (speech acts) him. The Court of Appeals affirmed (speech act) the conviction on the basis of its interpretation (an act about speech, if not a speech act) of the statute that had been enacted (speech act) by Congress; one judge dissented (speech act). The Supreme Court now reverses (speech act) the Court of Appeals' decision.
In its opinion, the Supreme Court addresses the appellate court's interpretation of the statute, then the trial judge's instructions. The Court first points out that the Court of Appeals "construe[d] omission" (construal again being an act, this time based on an absence of speech) of criminal intent from the congressional statute as "dispensing with it." The Supreme Court by contrast turns to pronouncements (speech acts) of common-law commentators and state law to hold (speech act) that "where Congress borrows terms of art in which are accumulated the legal tradition and meaning of centuries of practice, it presumably knows and adopts the cluster of ideas ... [A]bsence of contrary direction may be taken as satisfaction with widely accepted definitions ..." The Supreme Court finds (speech act) "no grounds for inferring [as did the Court of Appeals in its ostensible speech act] any affirmative instruction [speech act] from Congress to eliminate intent from any offense with which this defendant was charged [another speech act]."
The Supreme Court then "read[s] the record" (like interpretation, at minimum an act about speech) for a theory of the case and finds (speech act) that the trial court "erred" in its speech act of "instructing" the jury as to "presumptive" intent. Such presumption allows the jury to make assumptions (a possible speech act? certainly an act of reasoning involving language) that conflict with the presumption of innocence. Given the trial evidence, the Court argues (speech act) that the jury could legitimately have concluded (speech act) otherwise ...
You get the idea! The opinion itself becomes part of a series of speech acts that make claims about speech acts that claim to be, or to be in the name of, the law. As a speaking of law, the opinion is at least as much a story of claims about law as it is a set of statements of ostensibly timeless rules applied to propositions of fact.
Excerpted from Our World Is Our Bond by Marianne Constable. Copyright © 2014 Board of Trustees of the Leland Stanford Junior University. Excerpted by permission of STANFORD UNIVERSITY PRESS.
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Table of Contents
Introduction: Obama's Oaths,
Chapter One. How to Do Things with Law,
Section One. Speech Acts of Law: J. L. Austin,
Section Two. Hearing Claims: Stanley Cavell,
Section Three. Modern Law and Language,
Chapter Two. Learning by the Rules,
Section One. Good Legal Writing: Palsgraf,
Section Two. Reasons and Rhetorics: Cardozo and Andrews,
Section Three. Future Perfect Realities: Derrida's "Fabulous Retroactivity",
Chapter Three. Legal Acts as Social Acts,
Section One. Speech Act as Social Act: Adolf Reinach,
Section Two. Marriage Acts and States of Affairs,
Section Three. Speech as Dialogue: "You" and "I",
Section Four. Knowledge and Event: The Temporalities of Law and Language,
Section Five. Speaking Imperfectly,
Chapter Four. When Words Go Wrong,
Section One. "My Tongue Swore ...": Passionate Utterance,
Section Two. Binding Words: Hippolytus and Phaedra,
Section Three. Contracts and the Promises of Law and Language,
Conclusion: The Name of the Law,
Appendix A. Transcript of Obama's First Oath,
Appendix B. Morissette v. United States,
Appendix C. Palsgraf v. Long Island Railroad,
Appendix D. Selections from California Penal Code,