People Archive


Marianne Constable

Former LAPA Visitor, 2005-2006
Fellow at the Institute for Advanced Studies, Princeton
University of California at Berkeley

University of California at Berkeley, 7409 Dwinelle, Berkeley, CA 94720
phone: 510-642-2176

Marianne Constable is Professor of Rhetoric at the University of California, Berkeley. She is working on a history of the "new unwritten law," which ostensibly exonerated women who killed their husbands in Chicago. She is the author of Just Silences: The Limits and Possibilities of Modern Law (2005). Her earlier book, The Law of the Other: The Mixed Jury and Changes in Conceptions of Citizenship, Law and Knowledge, won the Law and Society Association's J. Willard Hurst Prize in Legal History. She has published on a wide range of topics in legal rhetoric and philosophy: Foucault and immigration law, Nietzsche and jurisprudence, the rhetoric of "community," the role of law in the liberal arts, Frederick Schauer on rules, Robert Cover on violence, and Montsquieu on systems. She has co-edited two books on law and society and currently serves as Book Review Editor for the journal, Law, Culture, and the Humanities. She was awarded a Distinguished Undergraduate Research Mentoring Award in 2002-03.
Just Silences: The Limits and Possibilities of Modern Law by Marianne Constable
(Princeton University Press, 2005)

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.