Our Word is Our Bond begins and ends with a lofty question, one that has occupied legal anthropologists from the inception of the field: what is law? Constable argues that this question can be most accurately addressed by seeing law as language, or at least as a phenomenon that acts like language. As a rhetorician, Constable probes this question through close linguistic analysis of legal language informed by philosophical perspectives from thinkers such as Austin, Nietzsche, Cavell, Heidegger, and Derrida. Her central thesis is, as I read it, an ethical one: by defining the world in particular ways and entangling people in particular communities, both law and language (and law as language) bind people to particular others.
Constable articulates law as something other than merely a system of rules or a set of calculable impacts through her meticulous analyses of writing legal opinions, taking presidential oaths, implementing criminal codes, and other legal speech acts. She censures, unfairly in my opinion, much sociolegal scholarship for taking law to be rules or calculable impacts. Constable posits law as making claims on certain realities, just as a grammar does, thereby constituting particular sorts of “practical knowledge” (p. 14). In doing so, law entails judgments about actions and responsibility, “dividing facts and findings about the ‘real’ world into deeds and doers in control of their doing” (p. 49). This stance is not a new one, at least not within legal and linguistic anthropology. Sally Merry, for instance, posits a now-pervasive conception of law as “not simply a set of rules exercising coercive power, but a system of thought by which certain forms of relations come to seem natural and taken for granted” (1988: p. 889). This perspective drove early legal anthropologists to treat law as yet another sense-making system in everyday life, asking, how does law order the world in ways that language, or kinship, or religion also do?
One of Constable’s unique contributions to this perspective lies in her discussion of law as claiming. Legal speech acts do not simply constitute, but take claim to versions of reality. Law attempts to “master speech acts and events,” though its “own speech escapes its control” (p. 11). In its claim to reality, therefore, law falls short. In her attempt to eschew power as a definitional component of law, Constable fails to connect her own claim to an argument that appears inherent in it. She writes that both law and language “use words to assert truths and to demand recognition of those truths as ‘their own’” (p. 43). It is precisely within this assertion of truth, I would argue, that law and language are established as powerful sense-making systems. And though she recognizes that there are multiple communities to which people belong that provide varying models of practical knowledge, and that law does not succeed in circumscribing all of these communities, her consistent use of law in the singular throughout the book belies this point. She does not account for how law establishes itself as a dominant language of reality among these multiple alternatives, although her examples attest to this point.
For instance, Constable closely analyzes Justice Cardozo’s majority opinion and Justice Andrews’ dissent in Palsgraf v. Long Island Railroad. In that case, a woman was boarding a train and was injured when a railroad employee dropped a passenger’s bag, which then exploded. Constable’s attention to the linguistic details of the opinions, such as constructions of agency and nominalization of verbs, provides brilliant insight into legal writing’s ability to “[treat] otherwise undifferentiated happenings as events and as acts of willing or intending subjects who…can thereby be held responsible for what they do” (p. 49). Constable does not attend, however, to the question of why the woman would have considered suing the railroad company in the first place for the consequences of a seemingly unintentional explosion. How does someone come to think of a series of events in terms of personal fault? How does legal sense-making become so pervasive in a community’s practical knowledge as to guide one’s reaction to different types of events?
A potential explanation comes in Constable’s discussion of Cavell’s passionate utterances in which she argues that law requires uptake to be successful. Its acts must be intelligible in order to be effective in the world. A speech act therefore requires not just an “I” and a “you,” but also a “we” in order for it to be socially meaningful and to take hold. Legal claims, Constable writes, “express their desires as the assertions and demands of claims made in the name of an ostensible third party ‘our’ law” (p. 81). The existence of, or at least belief in, this third party, is what gives law its force and its ability to shape relationships and reality. Constable’s reluctance to consider power within this discussion, however, again keeps her from recognizing this implication. Not every speaker or listener can participate equally in acts of speech, and thus are not all included in the “we.” An account is needed of how we’s are built, whom they consist of, and how multiple we’s in a given community shape people’s actions and attempts to make sense of their actions in the world.
Despite these potential limitations of Our Word is Our Bond, Constable gives readers an innovative take on law and social action that could prove useful to anthropologists. In conceptualizing law as claiming, Constable gerunds the concept, thus modeling law as something that both is and does. Law and language both act in the world, and simultaneously constitute – incompletely – that very same world. This is an astute interpretation of not just law, but culture as well. Any social act is an incomplete reflection of a cultural system, while at the same time it recreates this system by its acting. Its meaning is not determined until its uptake; who or what provides this uptake is yet to be known at the time of the act. Constable’s approach to law thus offers a sophisticated picture of culture as well as an “incomplete, sometimes interrupted, nevertheless ongoing…dialogic dance” (p. 104).
Robin Conley, Marshall University
Constable, Marianne. Our Word is Our Bond: How Legal Speech Acts. Stanford University Press, 2014. Read more at Stanford University Press.