October 2010
Illustration by Tony Millionaire

Marianne Constable

[Legal philosopher]

“Speech—not God or morality—connects our law to justice.”
Useful things to remember about justice and silence:
The justice of modern law lies in silence
The silence of justice is ambiguous
The “right to remain silent” warning is a way for the U.S. legal system to acknowledge its own limitations

When modern people living in democracies think about law, they tend to think about legal institutions. Law, then, would be rules passed by a legislature, enforced by police, and adjudicated by courts—basically, a set of rules backed by a threat of violence. There’s nothing very complicated about that, no matter how complex it might be to keep such a large system of enforcement running. And so we don’t think much about it.

But the above definition, while accurate, is not thorough. After all, no democracy could survive for long if a majority of its people did not find the laws reasonable enough to follow. Law that succeeds only by means of force is what gets called tyranny or worse, right? Such a law also wouldn’t hold out much hope for justice, or even for civil relations among neighbors. So there is more to law than the above definition allows: Law is also how we live together; it is sometimes a reflection of a society’s values; other times it is simply a way of ordering relationships between people by means of contracts, traffic laws, and rules for when you may be compensated for harms. Law also bears the weight of our aspirations toward greater justice. Basically, law has got a lot on its plate. You might think it is too busy for you. But if you take the time to question it, it will speak back to you, and you may be surprised by the answers.

It is even important that you speak to law, because a danger lurks in the lack of thoroughness of what passes for the everyday definition of law. It is the danger that we will not know—because we do not even speak about—what justice is, and what it requires. And then law loses its connection to justice. Marianne Constable, a legal philosopher at the University of California, Berkeley, and author of Just Silences: The Limits and Possibilities of Modern Law and The Law of the Other: The Mixed Jury and Changing Conceptions of Citizenship, Law, and Knowledge, takes up the question of the relationship of speech and silence to law, and what that has to do with justice, in some surprising ways in her work. Plus, her name is Constable!

—Jill Stauffer

I. “When you do speak, the issue is never just what to say but also always how you will say it.”

THE BELIEVER: In your book Just Silences you write, “One is perhaps never more bound to one’s law than when one is not consciously reflecting on one’s obedience to it.” How so?

MARIANNE CONSTABLE: I meant this as analogous to speaking. When one speaks one’s own language well and is just saying to someone what one wants to say, one doesn’t feel oneself attending to the rules of vocabulary or grammar or etiquette. One is embedded in them or they’re embedded in one somehow. Then there are all the times when one struggles to say what one should, or to be more precise, or to try to guard against misunderstanding or mistakes… and it might seem that these are the times one is most bound to language.

BLVR: Language doesn’t matter so much to us whenever we aren’t hitting up against the difficulty of expressing ourselves.

MC: Right, and those times happen a lot more or a lot worse when one is learning a new language or doesn’t know the language. Which makes you realize that in comparison to this language you’re struggling with, you’re already easily bound to your own. You don’t suffer this tie to your own language as a constraint, though.

BLVR: Because it makes so much possible?

MC: Right. It’s similar in law, I think. You have incorporated or integrated all of the background law that you follow in living your life without needing to make an issue of it. It’s when something becomes an issue and you have to think about the law and how to act that there’s this question or possibility of whether you will act and follow the language and the law.

BLVR: When you are up against the limits of what can be said, or when you face a moment in law where what is required doesn’t seem right or appropriate, you are faced with a decision. And if you reflect, you recognize that you have made that decision without thinking about it fairly constantly throughout your life, just by speaking or obeying.

MC: And that moment right before deciding, insofar as you have to decide, suggests a possibility of not being bound that doesn’t come up explicitly most of the time when you just go about speaking or acting. That possibility is what shows how easily bound you are the rest of the time.

BLVR: So… if we attend to the limits of language, we might be more sensitive to the judgments that are required of us on a daily basis—we might recognize them as judgments actively made rather than forgone conclusions or simple facts about existence. You might even say that language brings us straight to the ethics of how we live, if we learn how to listen to it.

MC: Yes. It also shows us how in both language and ethics, autonomy and judgment and freedom are there, but they are not the absolutes they are sometimes mistakenly taken to be. You’re never totally free, or totally autonomous, because you always find yourself living with others, speaking with them.

BLVR: But if you do decide that you’re “not bound,” you always risk not being understood, or being labeled criminal, right?

MC: Not just being labeled, but your act actually being criminal. You probably are bound, practically speaking, whatever you “decide” to do. I wonder if you can decide not to be bound as opposed to deciding to not do what you are bound to…? The thing is, there are options within being bound besides do-x and not-do-x. That’s clear in speech.

BLVR: How so?

MC: Well, when you do speak, the issue is never just what to say but also always how you will say it. It’s not that in any situation there is one possibility that you will say or not; rather, you always have a choice, whether you feel it or not, of what words to use, what grammar to use, whether to change the terms, how complete or how direct to be, and so forth.

II. “It’s not necessarily the case that silence indicates absence.”

BLVR: You have said that the justice of modern law lies in silence. Does that mean that justice is missing from law?

MC: I mean that we seldom hear about justice directly. Not hearing about it might be because it’s not there… or it might be that it’s there but we don’t know how to listen for or to it. The silence of justice—like other silences—is ambiguous. We often take for granted that a silence indicates a lack or an absence—as you say, that something is missing. But I want to emphasize that it’s not necessarily the case that silence indicates absence.

We (in the Western tradition) tend to think law and justice are related. But when law for which justice has been an issue becomes silent as to justice, one wonders whether justice is still an issue and one wonders what law without justice as an issue could mean, whether such silences are good for us or for our law…. It’s like in a friendship or relationship, when the persons in them don’t talk about something that seems important or that may once have been important to them, is their not-talking an indication that the thing isn’t an issue for them anymore, or that there is something else—perhaps productive or perhaps unhealthy—going on now?

BLVR: So, first off, why do you say that justice lies in silence? Don’t we hear talk about justice all the time? Where is it “not there”?

MC: Actually, I think we hear about injustice a lot more often and more explicitly than we hear about justice. Justice is a little like silence in the library: we all seem to recall or imagine signs that said silence in libraries. But now it seems that those signs are difficult if not impossible to find. What does the absence of those signs mean? Does it mean that we don’t need signs to carry on a tradition of silence in libraries? Does it mean that silence used to be the rule but that it’s no longer the rule—and if so, what happened that it changed? Or might it be that silence was never the rule, that it never named the condition of libraries, and that libraries are in fact never silent anyway?

One could ask—as some did a decade or so ago—whether neglect of library silence points to the demise of libraries or to the emergence of as-yet-unthought-of kinds of libraries. Likewise, does ostensible neglect of “justice” in law point to the demise of law or to the emergence of as-yet-unheard-of kinds of law? And what kind of law would that be?

BLVR: So justice is not there, where it once was… like silence in libraries. What does this mean for law?

MC: Well, as you know, in philosophy of law, there’s still a tired old debate going on between natural law and legal positivism. The natural lawyers associate law with the justice of God or of some higher morality; the positivists describe the law that exists.

BLVR: Either law is necessarily related to a form of justice that transcends law, as it is in natural law—think of Martin Luther King Jr. agreeing with Saint Augustine that “an unjust law is no law at all.” Or law is simply a form of social order with no necessary relation to justice, as it is for the positivists.

MC: Yes. But in some sense, the two sides are speaking at cross-purposes: one can take the natural lawyer to be interested in law that is just (or law that is elsewhere but should be on earth), while the positivist is interested in the actual law that is here on earth or in human society (which may or may not be just). The two represent the difference between “ought” and “is.” The positivist claims that it is conceptually cleaner to limit “law” to what is or what exists empirically and to save questions of what ought to be as questions to approach law with from outside.

BLVR: Whereas natural law thinks that if justice isn’t on the inside of law, then that’s not law, or we have a duty to resist that law.

MC: Right. My view differs from both of these, I think. What I want to argue is that, empirically, the legal positivist may be quite right. Indeed, there is no necessary connection between law and justice….

BLVR: It does no good to tell the policeman who arrests you for disobeying an unjust law that you do not recognize it as a law! That illustrates a way in which law and justice are not necessarily related.

MC: Yes, but necessity isn’t what interests me here. There is a connection between law and justice, and there has been a connection historically. Even if you want to call it a contingent connection, law and justice have traditionally been joined, in the Western tradition, through speech. So I’m arguing against both the positivist and the natural lawyer that speech—not God or morality—connects our law to justice.

BLVR: Speech connects law to justice. How?

MC: I think that it’s important to see how U.S. or modern or positive law—however you want to think about it—is so caught up in speech, in mastering it, in deploying it, in regulating it. Our law is very garrulous. At the same time, though, there are these moments and areas of law—the Miranda warning is one and the First Amendment is another—where law and legal institutions recognize not just the ways in which human speech can go wrong, but also the limits of what such law can do to fix or regulate or control speech. I think that instances where law recognizes or acknowledges its limits vis-à-vis language and speech point to the indebtedness of positive law to language—to something greater than itself to which it nevertheless appeals.

BLVR: So positive law, even though it eschews natural law’s linkage of law to a standard that transcends the institution (whether that be God’s law or the law of reason), still relies on something larger than itself, because it relies on speech!

MC: Yes.

BLVR: I like that idea. Can you offer some concrete examples of where we might find it in modern law?

MC: Well, I mentioned the Miranda warning….

BLVR: Right. And, since it is probably the piece of legal speech most familiar to the Law & Order–watching generation, let’s talk about that. You argue that, rather than simply protecting a suspect from police abuse, the “right to remain silent” warning helps to preserve the legal trial as a space where a certain kind of proper speech transpires. What do you mean?

MC: In extending the right to remain silent to someone, U.S. law recognizes its own limitations for understanding the language of an accused and for hearing what the accused says in his or her own terms, rather than in those of the legal system.

BLVR: Wait. So the Miranda warning is not just a right someone has not to incriminate herself, but is also a way for a legal institution to mark the limits of what it can understand in the arrest or interrogation setting?

MC: Right. Thus, police officers who, at the outset of in-custody interrogation, warn an accused that any statement may be used against the accused in a court of law are acknowledging that the terms of in-custody interrogation may not be those that the accused finds proper for the exchange of speech between him- or herself as legal subject and his or her law.

BLVR: Speaking to “law” is different from speaking to someone you know and trust, or even from speaking to some stranger who doesn’t happen to have the power of a forceful institution behind him.

MC: Yes, you could say that the right to remain silent accords to the accused the opportunity to take up or accept the law’s acknowledgement of its own limitations. It seems to me that when the Miranda court ruled on the warning, it opened up possibilities of doing justice. Of course, it also opened up possibilities of injustice, which is why all the ins and outs of the timing and conditions of the warning (and the waiver) are still contested.

BLVR: Like this year’s ruling that one must invoke one’s right to remain silent by saying explicitly that one does not wish to speak to the police—anything said before having said that is admissible in court.

MC: Right. But the warning, like other warnings, is about a danger. The danger here is that one will be misheard: that the “words” with which one is used to speaking for and from oneself will instead be used against oneself in ways that don’t fit one’s own understanding or use of one’s language. The legal system here acknowledges that it may not do justice to the language of the accused—and insofar as the legal process culminates in or actually constitutes a hearing, this is a pretty damning acknowledgement on its part. So it reminds the accused of the opportunity to step into the danger more carefully, with a lawyer, or to not step into it at all….

BLVR: It says: “Hey, you who may or may not have given any thought to how speech works in law—give it some thought before speaking. You are on different ground now!”

MC: Exactly.

III. “What would it be like to think about this in terms other than power?”

BLVR: Here’s a question about the relation of silence, speech, and law. When the Native American Graves Protection and Repatriation Act (NAGPRA) was passed, in 1990, it was taken by most observers as a long-overdue piece of legislation reflecting the justice of allowing Native American communities to do as they saw fit with the remains of their ancestors and with sacred objects belonging to their traditions. But many Native Americans refused to say much about their rites and rituals, as if speaking of some kinds of practices was either not possible or perhaps even destructive to those practices. Do those silences tell us something about law?

MC: Yes, I think they tell us that “our” law privileges particular understandings of persons and communities and practices and that many of us take those understandings for granted. I call them “sociological” understandings.

BLVR: What is a sociological understanding?

MC: It’s a worldview that takes everything human—including language and law—to be the object of a particular sort of empirical knowledge that ends up reinforcing the terms of “society.” It’s what you get in the newspapers: the idea nowadays that “social construction” explains everything—even the variations in what we say, think, believe, and do—usually in terms of various sorts of “social power,” whether that’s interests, force, domination, money, connections, mind-sets, etc. When the “social policy” that is today’s law is made on the basis of “social research” about “social values,” there’s an insularity of thought that precludes the possibility that law or language could be anything other than social and empirical and real and understandable in terms of power and powerlessness. But our law has not always been social and sociological….

One could imagine—and for many of us we cannot know, we can only imagine—what a non-sociological understanding of self, of law, of world, of how they belong together, might be. Thinking about what isn’t said in Repatriation Act cases, and about approaches from outside “the Western tradition,” may help us here.

BLVR: I’m mindful here of how strange it seemed to some when the Lakota Sioux refused $122 million in compensation for land claims when the prospect of ever having the Black Hills returned to them is so unlikely. But it was a way of saying (among other things) something about what can’t be compensated. Can you offer an example of how NAGPRA or U.S. law in general has failed to recognize what counts as law or value for Native Americans, or how Native American silence might constitute a kind of powerful resistance rather than a weakness? I mean, normally we think that being silent about something does that thing a disservice, especially when it comes to law.

MC: Partly I’m saying that strong oppositions like resistance/oppression and powerful/powerless might not be apt. U.S. law consistently treats Native American affairs in terms of power and interests: religion, education, language, land, you name it. But maybe this isn’t exclusively about power or best thought of in terms of power. What would it be like to think about this in terms other than power? That’s what this particular silence may suggest….

BLVR: Well, what would it be like? Can you offer your own imagining of how to think of law beyond power? Myself, I think of human relationships—law can be called one of these—and they can’t be only about power and still be successful. We all decide (perhaps without explicitly recognizing it, as you point out) that we will follow laws so we can get along with others and contribute to a less-uncertain world—rules do this for us—just as we give up some naive idea of freedom as being able to do whatever we want if we wish to have real love or friendship.

Or the Lakota Sioux. Part of their point is that the Black Hills have “cultural” or “religious” significance (and I put those terms in quotation marks because neither quite translates what is at stake here, I am told) that cannot be relocated or otherwise paid for. We tend to think everything has its price and, in thinking that way, we make it “true” for us. But I think most of us also know that some things can’t be bought.

MC: Yes, not just bought, but also said completely or definitively. I used poems in the book to gesture toward a non-sociological, non-positivist possibility of language. Poetry shows us something of the world through words. Saying is showing, writes Heidegger. Not only poetry is poetic in this way. When you come to understand what’s being said, when something dawns on you, something is shown. That’s what I’m interested in, that opening or showing that language offers, makes possible, into the world and also already of the world and of others—it can’t be only about power!

BLVR: What part of law lies beyond power and rules?

MC: Initiative. Judgment. Action. Whatever it is in those that legal speech appeals and responds to or with. In the past, we gave those appeals and responses names like “equity” and “justice.” I like the idea that there is no ultimate rule for the application of rules. I think that’s true, not just in law but in life.

Jill Stauffer is assistant professor of philosophy and director of the program in Peace, Justice and Human Rights at Haverford College, just outside of Philadelphia. Watch her goof off at culpa.diaryland.com.

Illustration by Tony Millionaire

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