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

[5] Ibid, 321

I have recently finished reading and annotating the substantially interwoven literature for this course, Law and the Humanities 2. Without an overarching conceptual infrastructure in which I can encapsulate these particular reflections and critiques of the law and its role in society, I find that there are many areas of intersection between the three stipulated categories – the imaginary, the fictitious, and performativity. I aim to sketch one of these here. While Lon Fuller explains architectonically how the fictitious is elemental to the law, Robert Cover displays the violence inherent in judicial interpretation. Taken together, they highlight how the violence of law consists precisely in its architectural build, in its institutionalization of fiction, and its necessity for categorization. Both the violence and the fiction in law are perhaps a reflection of not only our imperfect intellectual structures, but also our imperfect world.

In the first chapter of Fuller’s Legal Fictions, the centrality of the fiction to the law is laid bare, not only through the distinction between the fictitious and other categories (lies, erroneous conclusions, and the like), but also through the instantiation of the fiction in common legal tools, such as the legal presumption. One clear example of the fictitiousness of the legal presumption is the conclusive presumption, which is not in fact a fiction because the assumed fact is false, but rather because of the nature of its presumed truth. As Fuller argues, take the statement ‘Fact A is present,’ which would no longer be fictitious if Fact A is, in fact, present, but the conclusive presumption says, ‘The presence of Fact X is conclusive proof of Fact A.’ Therefore the fiction of the conclusive presumption does not rest on whether Fact X is present, but rather on Fact X not being conclusive proof of Fact A.[1] The law relies on distinct categories, and requires sharpness in its lines, but these lines do not always produce the desired results – and so we need fictions, to smooth out the lines. As Fuller notes, “fiction is the cement that is always at hand to plaster together the weak spots in our intellectual structure.”[2] While there is no immediate and necessary normative conclusion to be brought out here (i.e. fictions do not, in themselves, cause harm), one quickly follows from Cover’s article on the violence of legal interpretation.

By arguing that legal interpretation cannot be complete without violence, Cover is not merely saying that legal interpretation produces violence, but rather that legal interpretation is predicated on violence.[3] This implicates legal interpretation beyond the mere understanding of a text or word: “bound at once to practical application (to the deeds it implies) and to the ecology of jurisdictional roles (the conditions of effective domination).”[4] In this way, Cover reads violence into legal interpretation by tying it both to the act of carrying out a judge’s orders, as well the conditions for a legal system, those that ensure that defendants walk into a courtroom, and if necessary, into a jail cell. Putting this in conversation with Fuller, normative conclusions begin to manifest. The fiction that binds together our legal framework has normative character if we accept that all legal interpretation is predicated on violence.

Although I do not yet know how to reconcile these aspects of the law, they seem to me deeply intertwined and illuminating. As we begin the course tomorrow, I look forward to better understanding how these various threads are woven together within the law, ensuring the law’s dynamism and notable limitations.

[1] Lon Fuller, Legal Fictions (Stanford: Stanford University Press, 1967), 41-42

[2] Ibid, 52

[3] Robert Cover, “Violence and the Word” (1986) 95 Yale Law Journal, 1612-1614

[4] Ibid, 1617