Marianne Constable Research Articles

Discursive Silence as a Global Response to Sexual Violence: From Title IX to Truth Commissions

A pattern of personal and political silence in response to sexual violence is evident across societies, despite significant cultural, political, and social differences. Drawing on Foucault’s concept of discourse as a tool that can shed light on the hidden workings of historically contingent social systems that produce forms of knowledge and meaning, we argue that the logics that are built into laws governing national responses to sexual violence draw attention to the ways that these logics structure social relations between sexual violence survivors and society, masking some experiences and bringing others to light. Following Marianne Constable’s analysis of silence and the limits and possibilities of modern law, the manuscript explores the ways in which strategies of silence in the face of sexual violence might lead to novel approaches for pursuing justice for survivors outside of positivist legal frameworks. We also draw on critical feminist perspectives directing legal scholars to pay careful attention to non-legal discourses in developing analyses and responses to sexual violence. The manuscript develops its central arguments through an examination of two dramatically different cases: (a) Title IX as a mechanism for responding to sexual violence on college campuses in the United States; and (b) the South African Truth and Reconciliation Commission’s efforts to pursue transitional justice vis-à-vis gender and sexual violence in post-apartheid South Africa.There is, in other words, a silence about who suffers this affliction that further silences women. Silences build atop silences, a city of silence that wars against stories. A host of citizens silencing themselves to be accepted by the silenced. People meeting as caricatures of human beings, offering their silence to each other, their ability to avoid connection. Dams and seawalls built against the stories, which sometimes break through and flood the city. Rebecca Solnit, “A Short History of Silence,” in The Mother of All Questions (Chicago: Haymarket Books, 2017), p. 38.So much injustice is reproduced by silence not because people do not recognize injustice, but because they do recognize it. Sara Ahmed, Living a Feminist Life (Durham and London: Duke University Press, 2017).

Our Word is Our Bond: How Legal Speech Acts.Marianne Constable (Stanford: Stanford University Press, 2014)

PoLAR: Political and Legal Anthropology ReviewVolume 44, Issue 1 p. e17-e19 BOOK REVIEW Our Word is Our Bond: How Legal Speech Acts. Marianne Constable ( Stanford: Stanford University Press, 2014) Robin Conley, Robin ConleySearch for more papers by this author Robin Conley, Robin ConleySearch for more papers by this author First published: 22 January 2018 https://doi.org/10.1111/plar.12162Citations: 1Read the full textAboutPDF ToolsRequest permissionExport citationAdd to favoritesTrack citation ShareShare Give accessShare full text accessShare full-text accessPlease review our Terms and Conditions of Use and check box below to share full-text version of article.I have read and accept the Wiley Online Library Terms and Conditions of UseShareable LinkUse the link below to share a full-text version of this article with your friends and colleagues. Learn more.Copy URL Share a linkShare onFacebookTwitterLinkedInRedditWechat No abstract is available for this article.Citing Literature Volume44, Issue1May 2021Pages e17-e19 RelatedInformation

The Time of My Life

The Time of My Life

Marianne Constable: Our word is our bond: How legal speech acts

Marianne Constable: Our word is our bond: How legal speech acts

Law, Psychoanalysis, Society: Taking the Unconscious Seriously. By Maria Aristodemou. Oxon, UK and New York: Routledge, 2014. 189 pp. $125 cloth, $48.95 paper.

Law & Society ReviewVolume 49, Issue 4 p. 1028-1030 Book Review Law, Psychoanalysis, Society: Taking the Unconscious Seriously. By Maria Aristodemou. Oxon, UK and New York: Routledge, 2014. 189 pp. $125 cloth, $48.95 paper. Marianne Constable, Marianne Constable Department of Rhetoric, University of California, BerkeleySearch for more papers by this author Marianne Constable, Marianne Constable Department of Rhetoric, University of California, BerkeleySearch for more papers by this author First published: 28 October 2015 https://doi.org/10.1111/lasr.12172Read the full textAboutPDF ToolsRequest permissionExport citationAdd to favoritesTrack citation ShareShare Give accessShare full text accessShare full-text accessPlease review our Terms and Conditions of Use and check box below to share full-text version of article.I have read and accept the Wiley Online Library Terms and Conditions of UseShareable LinkUse the link below to share a full-text version of this article with your friends and colleagues. Learn more.Copy URL Share a linkShare onFacebookTwitterLinked InRedditWechat Volume49, Issue4December 2015Pages 1028-1030 RelatedInformation

Our word is our bond: how legal speech acts

Words can be misspoken, misheard, misunderstood, or misappropriated; they can be inappropriate, inaccurate, dangerous, or wrong. When speech goes wrong, law often steps in as itself a speech act or series of speech acts. Our Word Is Our Bond offers a nuanced approach to language and its interaction and relations with modern law. Marianne Constable argues that, as language, modern law makes claims and hears claims of justice and injustice, which can admittedly go wrong. Constable proposes an alternative to understanding law as a system of rules, or as fundamentally a policy-making and problem-solving tool. Constable introduces and develops insights from Austin, Cavell, Reinach, Nietzsche, Derrida and Heidegger to show how claims of law are performative and passionate utterances or social acts that appeal implicitly to justice. Our Word Is Our Bond explains that neither law nor justice are what lawyers and judges say, nor what officials and scholars claim they are. However inadequate our law and language may be to the world, Constable argues that we know our world and name our ways of living and being in it through law and language. Justice today, however impossible to define and difficult to determine, depends on relations we have with one another through language and on the ways in which legal speech-the claims and responses that we make to one another in the name of the law-acts.

Response: The Politeness of History

In my response to the reviews of my book by Marianne Constable, Shai Lavi, and Renisa Mawani, I situate the argument of Common Law, History, and Democracy in America, 1790–1900: Legal Thought Before Modernism within a concern with contemporary forms of historical knowledge. Where contemporary historical knowledge practices subsume their objects of investigation, I adopt the temporality of the object of investigation—namely, the common law—as the structure my book. In different registers, Constable, Lavi, and Mawani urge me to take up more explicitly the foundational questioning about which they care. I welcome their readings. However, given the distinct problematic from which I start, I argue, the book is not in the first instance an argument about the ontology of history or law.

‘We Exist, but Who Are We?’ Feminism and the Power of Sociological Law

In this article the author revisits Carol Smart’s 1989 publication Feminism and the power of law. She engages with Smart’s main claims by way of a number of other thinkers. Following Marianne Constable’s description of contemporary American legal thought as socio-legal, the author tentatively considers if it could be argued that some strains in contemporary legal feminism that adopted a sociological method resulted in a similar absence of justice that concerns Constable. Smart’s caution against the development of a feminist jurisprudence is critically analysed with the benefit of hindsight. Drawing on Deleuze and Guattari, Foucault and Goodrich, the author tentatively considers the becoming of a feminist jurisprudence as a minor jurisprudence. What we most lack is a belief in the world, we’ve quite lost the world, it’s been taken from us. (Deleuze , 176) Sociology takes social creation to be the whole of what is and will be. (Constable , 589)

Response

PoLAR: Political and Legal Anthropology ReviewVolume 33, Issue s1 p. 148-151 Response Marianne Constable, Marianne Constable University of California-BerkeleySearch for more papers by this author Marianne Constable, Marianne Constable University of California-BerkeleySearch for more papers by this author First published: 07 May 2010 https://doi.org/10.1111/j.1555-2934.2010.01073.xRead the full textAboutPDF ToolsExport citationAdd to favoritesTrack citation ShareShare Give accessShare full text accessShare full-text accessPlease review our Terms and Conditions of Use and check box below to share full-text version of article.I have read and accept the Wiley Online Library Terms and Conditions of UseShareable LinkUse the link below to share a full-text version of this article with your friends and colleagues. Learn more.Copy URL Share a linkShare onFacebookTwitterLinked InRedditWechat Volume33, Issues1May 2010Pages 148-151 RelatedInformation

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

PoLAR: Political and Legal Anthropology ReviewVolume 33, Issue s1 p. 143-148 Just Silences: The Limits and Possibilities of Modern Law by Marianne Constable John M. Conley, John M. Conley University of North CarolinaSearch for more papers by this author John M. Conley, John M. Conley University of North CarolinaSearch for more papers by this author First published: 07 May 2010 https://doi.org/10.1111/j.1555-2934.2010.01072.xRead the full textAboutPDF ToolsExport citationAdd to favoritesTrack citation ShareShare Give accessShare full text accessShare full-text accessPlease review our Terms and Conditions of Use and check box below to share full-text version of article.I have read and accept the Wiley Online Library Terms and Conditions of UseShareable LinkUse the link below to share a full-text version of this article with your friends and colleagues. Learn more.Copy URL Share a linkShare onFacebookTwitterLinked InRedditWechat Volume33, Issues1May 2010Pages 143-148 RelatedInformation

Law Like Love?

.This review essay responds to Marianne Constable’s book, Just Silences: The Limits and Possibilities of Modern Law. The essay and book explore how difficult it is for modern legal discourse to speak of law as something more than social power. Yet, as Constable points out, in the “silences” surrounding legal speech, the lawfulness or justice of law is always called for or presupposed. In this way, justice is inarticulable—like love, it goes between Reason and Power.

Author's Response: Worship, Wilderness, and Cultural Coevolution

When I learned that Worship and Wilderness was to be featured at an Author Meets Reader panel at the 2003 Annual Meeting of the Law and Society Association, at first I felt grateful. I would be able to discuss in an open forum with knowledgeable colleagues the results of a research and writing project to which I had devoted much of the previous six years of my life. But I also felt just a little trepidation, and for the same reason: my work would be subject to some fairly strict public scrutiny by critics well versed in the fields constituting the subtitle of the book. Under the strict scrutiny standard of review, I could only hope the panelists would conclude that I had a compelling scholarly interest in bringing Worship and Wilderness into being, and that I had done so by means least intrusive on the traditional disciplinary boundaries separating the subtitle fields of culture, religion, and law as they pertain to the management of our commonly held public lands. As I learned at the panel presentation and as the written critiques in this forum generally reflect, my colleagues seem to have decided in the affirmative on the former question, and perhaps have cast a split vote on the second. Flirting With Theory Development One of the observations that panel chair Marianne Constable made in her introductory remarks at the 2003 LSA meeting was echoed there by Susan Gooding, to the effect that while in the introductory chapter I suggest a theoretical construct grounded in both the ethnographic fieldwork and the more extensive document review and analysis done for this project, it is a theoretical framework never fully developed either in the opening chapter or at later stages in the book. In her written comments herein, Gooding goes on to demonstrate how, had I adopted an alternative mode of inquiry based on a more theoretical and critical literature that is not centrally featured in Worship and Wilderness (hereinafter, W&W), I might have been able to make a more original contribution to our understanding of how indigenous and dominant cultures have sought and are seeking to influence each other's thought and behavior regarding the sacred in nature. In particular, both she and Constable note-and I agree-that I could have done a better job of explaining what I meant in concluding that what I had discovered during the course of my research was an example of coevolution (W&W, p. 6). In explanation if not in defense on this point, the four stated purposes for doing this research were 1. to develop a better understanding of the spiritual dimensions of the relationship that the indigenous and dominant culture groups have with their environment 2. to learn what role in these matters has been played by the public law of the dominant culture 3. to learn how managers of public lands have tried to achieve mutual accommodation and cultural reconciliation among various groups contesting the use of sacred sites 4. (based on this case study data) to suggest how we all might most constructively think about and deal with these issues in the future (W&W, pp. 13-4). I readily acknowledge probably having done a more thorough job of achieving the second and third goals than the first and fourth. For in doing this work I often felt pulled in two different directions. On the one hand, I wanted to suggest novel or substantially untried frames of reference for thinking about these issues, since I find conventional discourse on these matters to often be predictably and sometimes dangerously predeterminative of outcomes. But I also wanted to work with conceptual constructs already familiar to public land managers and federal judges, since the practical playing out of dispute resolution efforts over contested sacred sites on public lands does and will continue to depend in large part on how these two groups of public sector professionals understand the dynamics of these disputes and exercise their considerable discretion in resolving them. …

Pregnancy Envy and the Politics of Compensatory Masculinities

Dominant psychoanalytic paradigms locate the breast or penis/phallus as the touchstone for gender/sex/sexual development. This essay offers a critique of these accounts and an alternative theory of sexed forms of being: pregnancy envy and the kinship rules that result from this. The essay also provides an intellectual history of how previous efforts to theorize pregnancy envy, especially work by Ida Macalpine, were suppressed. This article has benefited from audiences at the Yale University Feminist Lesbian and Gay Workshop, the City University Lesbian and Gay Studies Workshop, and the University of Southern California Center on Feminist Research, as well as from comments by Marianne Constable, Lisa Ellis, Laura Green, James Martel, Hanna Pitkin, and Michael Rogin. Many thanks especially to the reviewers and editors for their extremely helpful suggestions, including the reference to Bruno Bettelheim ( 1962 ).

A Response to Four Readings of A Theory of the Trial

My goal in A Theory of the Trial was a rational reconstruction of the American trial. I began with the conviction that the trial is, in some sense, a successful enterprise. The evidence for this proposition is spread throughout the book and is basically of three sorts-testimony of those who are experienced participant observers, social scientific findings, and the very account of the trial provided in the book. The latter contributes an argument that the trial's consciously structured hybrid of languages and practices is consistent with, indeed effectively realizes, intellectual and moral resources that interpret considered judgments of (Rawls 1971, 19-20). All of us, even social scientists, always already affirm most of those considered judgments of justice when we think practically, as we must. Not that they are beyond criticism, but we have no Archimedian point or principle from which to criticize them all at once. Since modem people know that we are responsible for our public institutions, we need a mode of practical discourse (at the metalevel) by which to understand and evaluate institutions and the practices that occur within them. My book is an attempt at such discourse, and more than one reader has noticed that the argument has a reflexive quality. The book's method itself parallels at a higher level of abstraction the intensely practical discourse that occurs at trial. First, a word about Marianne Constable's generous introduction. She notes that though my method is primarily interpretive, I sometimes invoke empirical findings even while suggesting their limits. This is consistent with a conviction I draw from Richard Bernstein, that an adequate, comprehen-

Modernity, Subjectivity, and Law: Reflections on Marianne Constable's The Law of the Other

Marianne Constable has written a fascinating and provocative book about what has been lost with the rise of legal positivism. It is a theme she explores ingeniously-not by approaching the subject of legal positivism head on, but by coming at it through the little known, and no longer used, practice of the mixed jury. In pre-modem England, a mixed jury was invoked in cases when two communities, and two senses of justice, were at issue. Constable uses this history to reveal a different way of thinking about law and justice. The demise of the mixed jury and the history of that demise offered by legal positivists further illustrates the nature of a positivist system of law. The Law of the Other asks that we think about our place within the modem social order.

Modernity, Subjectivity, and Law: Reflections on Marianne Constable's "The Law of the Other"

Modernity, Subjectivity, and Law: Reflections on Marianne Constable's "The Law of the Other"

Race and Representation: Affirmative Action

Part 1: introduction - after Bakke, Robert Post the racial rhetoric of colourblind constitutionalism - the case of Hopwood versus Texas, Reva B. Siegel the two declarations of American independence, Michael Rogin group preferences, cultural diversity, and social democracy -notes toward a theory of affirmative action, David A. Hollinger individual fairness, group preferences, and the California strategy, Troy Duster is affirmative action a Christian heresy? J. Jorge Kior de Alva an affirmative view, Judith Butler empowerment hazards -affirmative action, recovery psychology, and identity politics, Michel Feher the regents on race and diversity - representations and reflections, Marianne Constable Warhol paints history, or race in America, anne M. Wagner camouflaging race and gender, Barbara T. Christian diversity of what? Miranda Oshige McGowan unrepresented, Rachel F. Moran situating Asian Americans in the political discourse on affirmative action, Michael Omi and Dana Y. Takagi California's collision of race and class, Richard Walker casuistry, Cass R. Sunstein. Part 2: affirmative action and epistemology, James Robert Brown a liberal defense of affirmative action, George M. Fredrickson how affirmative action can (and cannot) work well, Amy Gutmann affirmative action as culture war, Jennifer Hochschild the strange career of affirmative action, David L. Kirp maintaining diversity at the University of Texas, David Montejano self-defeating identities, Daniel R. Ortiz affirmative action, Frances Fox Piven a personal perspective on affirmative action, Chang-Lin Tien humility and the curse of injustice, Jeremy Waldron affirmative action - psychology meets sociology, Alan Wolfe affirmative action - a long-range perspective, Howard Zinn SP-1 - resolution of the University of California board of regent adopting a policy ensuring equal treatment of admissions proposition 209 - text of proposed law AAUP commission on governance and affirmative action policy.

Review essay: Rhetoric in legal scholarship

The Law of the Other: The Mixed Jury and Changing Conceptions of Citizenship, Law, and Knowledge by Marianne Constable. New Practices of Inquiry. Chicago: U of Chicago P, 1994; 192 pp. Reinterpreting Property by Margaret Jane Radin. Chicago: U of Chicago P, 1993; 265 pp.

The Law of the Other: The Mixed Jury and Changing Conceptions of Citizenship, Law, and Knowledge, Marianne Constable, Chicago: University of Chicago Press, 1994, 184 pp.

The Law of the Other: The Mixed Jury and Changing Conceptions of Citizenship, Law, and Knowledge, Marianne Constable, Chicago: University of Chicago Press, 1994, 184 pp.

Marianne Constable, The Law of the Other: The Mixed Jury and Changing Concepts of Citizenship, Law, and Knowledge, Chicago: University of Chicago Press, 1994. Pp. xi, 192. $38.00 (ISBN 0-226-11496-1).

Marianne Constable, The Law of the Other: The Mixed Jury and Changing Concepts of Citizenship, Law, and Knowledge, Chicago: University of Chicago Press, 1994. Pp. xi, 192. $38.00 (ISBN 0-226-11496-1). - Volume 13 Issue 2