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.
