[Editor’s Note: I-CONnect is pleased to feature a symposium on Constitutional Ethnography. This is the seventh entry of the symposium, which was kindly organized by Deepa Das Acevedo. The introduction is available here].
—Marianne Constable, University of Alabama.
Decades ago, U.S. political scientist and administrative law professor Martin Shapiro advised his students to study “any court but the Supreme Court; any law but con law.” He was responding to the privileging, by the U.S. legal professoriate, of written high court opinions in high-profile cases and to scholars’ relative neglect of what a range of legal officials beyond Supreme Court Justices actually do in a variety of legal and other areas.
Today, many have come to realize that what U.S. Justices – and many other legal officials here and elsewhere – do is precisely to write and decide cases, which doing itself has implications for everyday life. As this audience doesn’t need reminding, especially after earlier panels, officials engage in thinking and writing and reasoning about their laws in various ways with varying impacts and implications around the world. A seemingly obvious recognition now links those who fall under the broad umbrella that Kim Scheppele has dubbed “constitutional ethnography” (including non-constitutional scholars and non-anthropologists) to Martin Shapiro’s underlying appeal to study what is done in the name of law — even when, in studying supreme laws and constitutional courts, they don’t literally heed his words. The recognition is: that a doing is involved in judicial and other constitutional pronouncements of and about law and governance; that these doings involve language in particular ways; that they occur elsewhere than in the US; and that appeal to constitutional language holds implications for everyday life and governance.
In her earlier provisional understanding of constitutional ethnography as “the study of the central legal elements of polities using methods that are capable of recovering the lived detail of the politico-legal landscape,” Scheppele ultimately downplays the role of the “central legal elements of polities” in favor of methods that recover “the lived detail of the politico-legal landscape.” In my 15 minutes today, I will argue explicitly (as was acknowledged by all who engaged in this morning session, as they variously demonstrated, took for granted, elaborated, and interrogated the point) that language, whether spoken or written, constitutes the “central legal element of polities” and of the work of constitutional ethnographers. Scholarly understanding of the lived details of politico-legal landscapes requires using as well as studying language and discourse through methods of rhetoric. The contestations and claims that arise in constitutional ethnographies are matters of language through and through. Such linguistic acts do not simply involve the meanings of words; they occur through use and ritual and practice. They hold authority and implicate ethics. In attending to the speaking of law or the constitution of juris-dictions, so to speak, constitutional ethnography turns to the very stuff or ground of politico-legal landscapes.
Key here is understanding language not simply as static noun or even as collections of words whose definitions and meanings may change. Rather language is a medium with which or through which activities – of speaking and writing, but also of reasoning, justifying, adjudicating, negotiating, ratifying, appealing, protesting, forgiving, promising, threatening, explaining, consulting and other verbs used today – occur. Constitutional practices, written or unwritten, maintained or challenged, use languages. Many today have called for sensitivity and nuanced listening as to how constitutional arrangements differ and inform governance and politics. Not only do professional and everyday languages diverge, but the words in one legal language do not necessarily translate directly into the words of another. Constitutional ethnographers realize that different legal traditions use different terms to refer to their key institutions, ideas, and practices and that they may do so in ways considered “untranslatable” – or at least as requiring fuller interpretation than is sometimes offered.
The importance of language to law – and to actual constitutional practices – does not stop with translations or analyses of the meaning of words though. How one does what one does with words, as J.L. Austin puts it, depends in part on conventions, which grow up around what persons do. Scheppele’s original article offers a nice example – that of judicial dissent. To dissent is a verb; dissenting is an act done in words, hence a speech act or activity. Dissenting, like other speech acts, makes sense to us not simply as true or false, but as being done more or less appropriately and more or less skillfully. Because norms of dissenting – as for so many other legal-judicial speech acts – differ in different regimes, assessing dissent becomes tricky. The Hungarian situation in which dissents occur only in social welfare cases or by a particular judge holding a grudge that day against the chief justice does not only make the comparative use of dissents as proxies for high court disagreement inapt, as Scheppele argues. It also suggests that the act of dissenting is and does something different in different regimes or under different conditions. Dissenting may underscore that a particular issue-area of law (social welfare) is particularly visible or divisive or of particular concern. It may also be an act of snubbing of one’s colleague. Elsewhere dissents may do other things. Like their supposed opposite, concurrences, dissents may state, dismiss, maintain, define, bracket, render, disparage, open up, ground, deny. They can establish party loyalties, reinforce traditional views, undermine them, identify compromises, mark out limits or new ideas, transform and transfigure power, and even trigger political and emotional responses, including such affects as abjection and awe.
Knowing what is at stake in a particular dissent thus requires understanding the normal or conventional practices within the institutional and social world that make it a dissent. But one must be attuned not only to its performative or conventional aspects, but also to the ways in which it may be put to unconventional uses or deployed in passionate utterance. Passionate utterance, as Stanley Cavell explains in another context, engages the affects and desires of speakers and listeners. To persuade successfully, like snubbing in a Hungarian dissernt, for instance, not only depends on fulfilling the conventions or conditions of dissent in Hungarian terms, but also requires a speaker’s knowledge of listeners (and a scholar’s knowledge of their relations) that goes beyond conventions and rules.
Hence the attention paid by rhetoricians and ethnographers alike to seemingly repetitive invocations or appeals (both speech acts) that some might call ritualistic. Calling an oft-repeated phrase ritualistic or incantatory is not necessarily to say that it is empty or meaningless. It opens up questions about how the phrase has become conventional and how it manifests – and betrays – perhaps in innovative fashion, aspects of earlier legal, political, linguistic traditions (such as the Hungarian Crown) and potential counter-constitutions.
If to understand a politico-legal regime, one must listen for the untranslatability of words, notice how ostensibly similar speech acts do different things or are done differently in different regimes and contexts, and explore inheritances and innovations that lie in particular formulations or utterances, then one must also attend to the structures and institutions of claiming. In the contemporary world, at least within states and in interstate law and its systems of legal pluralism, language forms the arrangements that mediate and enable the possibilities and limitations of claims.
To claim is to assert or demand something, while also calling for recognition of one’s authority to do so. As the multiplicity of procedures and laws surrounding constitutional arrangements recognize, who is entitled to speak in what capacity, when and where, and about what to whom and for whom, circumscribes (or some would say “frames”) the speaking that occurs in legal and political registers. A legal-political institution’s speaking of law constitutes its juris-diction. Claims that establish or restrict entitlements to speak regulate – however incompletely – transformations and reconfigurations of those very institutions, their juris-dictions, and their authority (the rules of the game, as we have heard, may become the game).
Finally, one must note that words are actually both more and less than the written word. I have mentioned the (in)commensurability of meanings within and across languages, the ways utterances act conventionally and affectively, how legal formulae may carry on or betray traditions, and how claiming – by and to officials and others – shapes possibilities and limits of governance and of association. One cannot conclude a text revised from a speech that was presented on zoom at a hybrid meeting without noting the varying materialities and technologies of words. Constitutional and legal language and practices also circulate as sounds and static, through papers and placards, on and offline, in folders and files, copied and shredded, amended and amendable figures and grounds.
Suggested citation: Marianne Constable, Rhetoric and “Constitutional ethnography”. Interdisciplinary perspectives panel, Int’l J. Const. L. Blog, May. 31, 2023, at: iconnectblog.com/i-connect-symposium-peopling-constitutional-law-revisiting-constitutional-ethnography-in-the-twenty-first-century-part-vii-rhetoric-and-constitutional/
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