Book Review: MARIANNE CONSTABLE, Just Silences: The Limits and Possibilities of Modern Law. Princeton, NJ: Princeton University Press, 2005, 224 pp., ISBN 97806911227869, £14.95 (pbk)
| Published date | 01 June 2008 |
| DOI | 10.1177/09646639080170020704 |
| Date | 01 June 2008 |
| Author | Andrew Schaap |
| Subject Matter | Articles |
MARIANNE CONSTABLE, Just Silences: The Limits and Possibilities of Modern Law.
Princeton, NJ: Princeton University Press, 2005, 224 pp., ISBN 97806911227869,
£14.95 (pbk).
This book makes two broad claims, one negative and one positive. First, modern law
is silent about justice. This is due to the dominance of what Marianne Constable refers
to as ‘sociolegal positivism’, the convergence of legal postivism and the sociological
study of law. Rather than understanding positive law as the imperfect instantiation of
justice in the world, law is today understood entirely as a product of social power
with no necessary connection to justice. While accepting that socio-legal positivism
accurately depicts the operation of modern law, Constable wants to resist this reduct-
ive approach in which social power becomes the ‘sole or unlimited frame of reference
for knowing the law – or determining what to do’ (p. 34). For, in this modern world-
view, law is divested of intrinsic value, appearing only as an instrument of social power.
To the extent that justice remains pertinent to law it is reduced to ‘an empirical question
of social regularities’ (p. 177).
While it is not possible to return to a theory of natural law, Constable suggests that
some reference to a notion of justice that, in a certain sense, transcends the social is
required for a proper understanding of the lawfulness of law: ‘Justice lies in stillness,
awaiting the silent call to it that comes out of the human need to act and judge in a
world that is not of one’s own making’ (p. 177). In this context, Constable also argues
that modern law’s silence about justice does not mean that justice is simply absent from
law. Rather, she says, legal silences about justice may constitute the possibility of
justice in particular contexts. In terms of the title’s play on words (which exemplifies
Constable’s rhetorical approach), law’s silences about justice are rarely ‘just’ silences
in the sense of unremarkable omissions. Rather, they have a potentially deeper signifi-
cance as ‘rightful’ silences, which signal what it would mean to be just. In her more
rapturous moments, Constable is led to formulate this idea in statements such as:
The call to justice today takes place in silence. Voices call out of and to an un-
sayable silence. Law issues from silence as the necessity of claims and responses
and as a calling that both binds earthbound persons to a world and frees them
to be and to act in the world. (p. 177)
Constable seeks to substantiate her two claims through separate chapter studies of
several American legal texts: the Native American Languages Acts (1990 and 1992) and
the Native American Graves Protection and Repatriation Act (1993); the representa-
tion of flag-burning as an issue of free speech in Texas v. Johnson (1989); Frederick
Schauer’s (1991) Playing by the Rules; Robert Cover’s (1993) ‘Violence and the Word’;
and the articulation of the right to remain silent in Miranda v Arizona (1966).
The premise of Constable’s book is intriguing and her project is ambitious and,
while there is much that is rich and suggestive here, I consider both claims to be
deeply problematic and the rhetorical analyses of texts that she offers in support of
these unpersuasive. As to the latter, the various chapters share little in common except
for the motif of silence, which recurs throughout the book but is barely treated as a
serious conceptual problem. Indeed, completely lacking is any rigorous analysis of
either of the two concepts that Constable sets out to understand in relation to law:
its silence or its justice.
Indeed, by the end of the book, I still had no idea what Constable meant by justice.
She appears not to be particularly concerned with distributive or reparative justice
but rather with the meta-question of the condition of possibility of justice itself. But
some definitional work is still required at this level of abstraction, particularly when
it is brought to bear on such concrete issues as flag-burning (and waving, for that
290 SOCIAL & LEGAL STUDIES 17(2)
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