Over our first two days, we probed the concepts of the imaginary and the fictitious, and their deep centrality to the law, normatively and critically. As we turn to the final set of readings tomorrow, we will begin to explore what – in my view – may be the most interesting concept: performativity. As Loxley’s “From the Performative to the Speech Act” makes manifest, relying heavily on J. L. Austin’s How to Do Things with Words, the things that we say can in fact do things in the world. Our utterances are therefore not ‘just’ words, but actions too. In the shadows of this impactful analysis of language is silence, a theme lying dormant in the imaginary and the fictitious as well.
A seminal reading for the legal imaginary seminar was Goodrich’s “Specula Laws,” which he ends by discussing a 1990 case when a journalist refused to pass documents to the Court, in order to protect his source, and was therefore held in contempt of court; his counsel was not even allowed to speak. Goodrich writes, “Within that silence resides an entire iconography of the territory of the law for it is in that silence that law may properly be said to speak and in speaking to erase all claims to any other destiny, any other fate or reason but its own.”[1] In a likewise pivotal reading on legal fictions, Alison Young ends her 1998 article on rape trials with a reference to the story of Tereus and Philomela in Ovid’s Metamorphoses: “Closing its dirty ears, law is deaf to the accusations of rape, and silences woman, replacing her tongue with the pathos of wordless song, inarticulate sound, non-language, the pain of alterity.”[2] Both Goodrich and Young chose to end their articles by noting how law speaks loudest through its power to silence, and yet they do not investigate[3] this encompassing power of law, the power to silence.
In Rae Langton’s “Speech Acts and Unspeakable Acts,” we find a theoretical framework for analyzing the power to silence. Her two central claims are that pornography subordinates women and that pornography silences women. Although her first argument is critical to understanding the normative power of pornography, it is her second claim that offers much to thinking about law’s power to silence. Building on J. L. Austin’s tri-partite notion of how utterances do things in the world, Langton explores a threefold distinction for how speech acts can be silenced. It is the third of these that is most interesting, which is termed illocutionary disablement, and denotes how “the appropriate words can be uttered, with the appropriate intention,” and yet the speech act can still fail.[4] Her example for this is breathtakingly powerful, as she explores how a woman can say ‘no’ to a sex act, while the hearer can fail to recognize what this means: “She says ‘no.’ She performs the appropriate locutionary act. She means what she says. She intends to refuse. She tries to refuse. But what she says misfires. Something about her, something about the role she occupies, prevents her from voicing refusal. Refusal—in that context—has become unspeakable for her.”[5] In her analysis of the reprehensible and nearly incomprehensible, Langton displays how silence does not merely mean restricting what one can say or preventing one from saying anything at all, but also stripping one’s words of their meaning. Furthermore, she highlights the relationship between the positionality of the speaker to both her words and their reception by the hearer. In thinking about the law, this conception of silence seems particularly poignant: the power to enable or disable the meaning of words, to enable one’s voice or to strip it of any meaning. The question that then arises is how this power is weaponized and operated through and in the law. How does the law perform illocutionary disablement? When does it exercise its power of silencing?
Although Langton offers much for thinking about the power to silence, and what it means to be silenced, it remains disconnected from a discourse of law’s power to silence. Moving into the second half of the course, I am particularly interested in how this power of the law operates, what its normative implications are, the ways in which it exasperates existing inequities, and what it means for better understanding the law.
[1] Peter Goodrich, “Specula Laws: Image, Aesthetic and Common Law” (1991) 2 Law and Critique 2, 254
[2] Alison Young, “The Waste Land of the Law, the Wordless Song of the Rape Victim” (1998) 22 Melbourne University Law Review, 465
[3] Young, in some respects, can be seen to be investigating this power at times in her article, notably when she discusses the restrictions on the victim’s voice during the trial. However, the focus here is on the disenfranchisement of the victim through the trial, rather than the power of law to silence.
[4] Rae Langton, “Speech Acts and Unspeakable Acts” (1993) 22 Philosophy and Public Affairs 4, 315
Thank you very much for your post. I have found in it much food for thought! I would like to pay attention to the following quote of your piece regarding the power of law to silence or disable the meaning of words: ‘In thinking about the law, this conception of silence seems particularly poignant: the power to enable or disable the meaning of words, to enable one’s voice or to strip it of any meaning.’
I think that it is necessary, as I believe you did in your piece, to make a distinction between the act of silencing made by the person who ‘fails’ to recognise the utterance of ‘no’ as a valid speech act, and therefore act as if the speech act had misfired; from the disablement that the law does, even when it recognises the utterance as a felicity one. It can be argued that this distinction shows the difference between a particular or private disablement (between individuals) and an institutional one. Butler points this, even within law’s operation, when claiming that ‘It will be necessary to distinguish between those kinds of violence that are the necessary conditions of the binding character of legal language, and those kinds which exploit that very necessity in order to redouble that injury in the service of injustice.’ (Butler, 1997: 62)
If we make this distinction, it is possible to problematise different claims made by social movements nowadays. Maybe, if the law is structured in a way that silence or disable specific speech acts, some claims will be disabled or reconfigured into the categories that law has to grasp them. If we think, for example, in the claims for equal rights between women and men, or nationals and immigrants, can the law deliver a different outcome than formal equality? Alternatively, if we think in social security systems (as in Chile, nowadays) as guaranteeing a social right, can the law thematise this without transforming it into a matter of individuals against the state, instead of thinking of it as a matter of solidarity or political community? Maybe (at least in Chile the experience shows that is more likely rather than not) the law neutralises and ‘strips one’s words of their meaning’ when it appropriate concepts that require a full account of the community or the political. I think it does so, precisely, because all these claims have to be translated into the juridical language, which is, naturally, limited and biased.
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