In 1995 Peter Tiersma published a 99-page article in the Rutgers Law Review entitled “The Language of Silence,” excerpted in this volume (Tiersma 1995). A creative blend of legal and linguistic scholarship, the article starts by asking under what circumstances silence can actually communicate meaning.1 In the second part of the article, Tiersma goes on to examine a wide variety of areas of law in which silence is salient to legal communication. This impressive survey covers laws pertaining to contract, agency, perjury, defamation, fraud, consent, evidence (excerpted here), waiver, and legislative silence. He concludes that “[n]ot surprisingly, there seems to be no ironclad test for determining when a failure to speak can communicate” within legal settings (1995: 96). Nonetheless, as he notes, there are many situations in which silence can turn out to be legally meaningful. In this commentary, I will examine some of those situations in light of the recent attention in linguistic anthropology to what is called “linguistic ideology.” Intriguingly, one of the many things Tiersma has done in his article is to demonstrate how law encodes tacit linguistic ideologies, projecting them as somehow given or natural and then using them as grounding for formal legal rules.
Let’s begin (appropriately!) with Tiersma and his article on silence. There he argues that silence, which he defines as an “absence of speech” (1995: 11), can take on meaning in a number of different ways. In particular, he distinguishes between silence with “propositional content” and silence that is the basis of inferences, and he specifies how silence can become meaningful by convention, by agreement, by declaration, or by implication (1995: 12–23). Tacking between legal language and everyday speech, Tiersma charts the way ordinary linguistic patterns sometimes overlap with formal rules of law pertaining to silence. Here I will focus on his examples drawn from conversation and contract law, on the one hand, and his analysis of how the US law of agency infers acquiescence from silence, on the other hand.
Some background on the anthropological linguistic perspective that I’ll be applying to these examples is in order. An important strand of thought in linguistic anthropology has been the exploration of the crucial role of contextual and metalinguistic levels in shaping how we understand each other (Silverstein 1976, 1993; Lucy 1993; Mertz 1985). Linguists speak of the contextual aspect of meaning as the “pragmatic” level; it is that aspect which relies upon the actual context of speech or writing. Thus, words like “here” and “there” or “you” and “I” generally require some information about the contexts in which they are being used in order for us to pinpoint their meaning. If we take the “meta-” level of language to be the way that language points to itself as it is used, then the “metapragmatic” level is the way that language points to its own contextual character as it is used. An example of this is what anthropological linguists have called “linguistic ideologies”—that is, reflexive ideas about how language operates in social contexts (Silverstein 1979; Woolard and Schieffelin 1994; Schieffelin, Woolard, and Kroskrity 1998; Woolard 1998