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Download Just Silences: The Limits and Possibilities of Modern Law by Marianne Constable PDF

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By Marianne Constable

Is the Miranda caution, which we could an accused understand of the precise to stay silent, extra approximately procedural equity or concerning the conventions of speech acts and silences? Do U.S. legislation approximately local american citizens violate the popular or conventional "silence" of the peoples whose religions and languages they target to "protect" and "preserve"? in precisely Silences, Marianne Constable attracts on such examples to discover what's at stake in glossy legislation: a almost certainly new silence as to justice.Grounding her claims approximately glossy legislations in rhetorical analyses of U.S. legislation and criminal texts and finding these claims in the culture of Nietzsche, Heidegger, and Foucault, Constable asks what we're to make of silences in glossy legislation and justice. She exhibits how what she calls "sociolegal positivism" is extra very important than the common law/positive legislation contrast for knowing glossy legislation. smooth legislations is a social and sociological phenomenon, whose instrumental, power-oriented, occasionally violent nature increases critical doubts concerning the persisted chance of justice. She exhibits how specific perspectives of language and speech are implicated in such law.But law--like language--has no longer continuously been positivist, empirical, or sociological, nor desire or not it's. Constable examines probabilities of silence and proposes an alternate knowing of law--one that emerges within the calling, notwithstanding silently, of phrases to justice. Profoundly insightful and fluently written, simply Silences means that justice at the present time lies precariously within the silences of contemporary confident legislation.

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Additional resources for Just Silences: The Limits and Possibilities of Modern Law

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1 . R H E T O R I C O F M O D E R N L AW 21 law constitutes imperfect participation in a divine (law of) justice. For some, justice is that which temporal law needs or secular law lacks; for others, it may be that to which human law aspires or fails to aspire. According to some, law is doomed to try and to fail to achieve justice; according to others, justice itself is illusion, ideology, or even outright lie. Some even formulate law’s association with justice (the psychoanalytic rhetorician notes) in a denial that there is any necessary connection between the two!

The inaccessibility of a singular determinate moment of either “acknowledgment of authority” or of complete conquest in both the future of Tanganyika and in the past of the English common law suggests an 40 See also Joseph Raz, Practical Reason and Norms (Princeton: Princeton University Press, 1975, 1990), 49–58. Raz argues in a quite different context that rules are not practices. 41 Constable, Law of the Other, chap. 4, 67–95; Peter Fitzpatrick, The Mythology of Modern Law (New York: Routledge, 1992).

36 See Rosemary J. Erickson and Rita J. Simon, The Use of Social Science Data in Supreme Court Decisions (Urbana: University of Illinois Press, 1998) and studies cited therein; Jonathan Yovel and Elizabeth Mertz, “The Role of Social Science in Legal Decisions,” in Sarat, Blackwell Companion, 410–31; Marianne Constable, The Law of the Other: The Mixed 1 . 37 She looks at what the document states “is the main function of a court—to dispense justice” (18). A. Hart’s positivist model of a legal system (22).

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