By Rachel Bolton, PhD Candidate: UTS Law
Marianne Constable, Professor of Rhetoric at Berkeley, gave a keynote lecture at the 2017 Conference of the Law Literature and Humanities Association of Australasia held in Melbourne 12-14 December. Titled “Subversive Legacies: Law, Literature and Repetition”, Constable’s keynote aimed to bring attention to the work of repetition. Her argument was that rhetoric can provide insights into the work of repetition as it occurs in legal history.
Constable introduced the theme of repetition with reference to early writings on semantic satiation, whereby a word or phrase repeated over and over loses its meaning and becomes incomprehensible. This (almost unbearable!) YouTube clip is illustrative. Constable’s point was that “repetition has its own effects”. Repetition can change meaning; it can emphasise and foreground and if continued it can produce a deadening effect, or an automated sense of going through the motions, whereby the thing repeated falls into the background.
Constable was less concerned, however, with extreme instances of semantic satiation than with repetition’s relationship to interruption. Drawing on her archival research on women in early 20th Century Chicago who “killed their husbands and got away with it”, Constable explored how a defendant’s history of being repeatedly beaten by her husband came to form part of a legitimate background against which the interruption of those acts, the wife killing her husband, were adjudicated. In practice, many such women were repeatedly exonerated or acquitted in Chicago at this time, a phenomenon then described as the “new unwritten law”. Elsewhere, Constable described the broader aims of the Chicago Husband Killer project as being to understand how:
…the unwritten becomes written, that background practices become legal acts or events- and, conversely, how acts and events of law may become routine or fade into a taken-for-granted background of legal knowledge and practices.1
Constable’s keynote offered a compelling account of how a particular practice (rather than a concept or discourse) shapes the form and conduct of law. One thing I was left thinking about was the relationship between repetition and authority: who decides which repetitions are to be recognised as legitimately bound to law? If the exoneration of women husband-killers was the result of a repeated practice of juries, rather than a written down doctrinal principle, how might this inform our understanding of the relationship between the authority of the unwritten acts of a jury and of written precedent?