Law's Archive

Abstract

The archival turn has followed a long, protracted, and spiraled trajectory through the fields of history, historical anthropology, philosophy, and literary studies. Animated by the cultural turn and shaped by the challenges of poststructuralism, subaltern, and postcolonial studies, critics have formulated history's archive not solely as a repository of sources through which to retrieve and/or assemble the past but as an uneven effect of power and a set of contested truth claims through which history itself has been a site of struggle. Law and legal studies, by contrast, have had curiously little to say on the subject. That the archive has been the topic of such vibrant debate and disagreement outside of law but not within it is a problematic that informs this review. This article revisits the spirited and now familiar debates in history and these other fields and asks how these critical engagements — which have yet to fully dislodge the archive as truth or radically change how we write history — might productively inform conceptualizations of law's archive. Given law's significance to historical, contemporary, and future struggles over sovereignty, authority, violence, and nonviolence, its archive, I argue, cannot be broached as a compendium of sources or as a regime of power/knowledge alone. Rather, law is the archive. It is an expansive and expanding locus of juridico-political command, one that is operative through what I term a double logic of violence: a mutual and reciprocal violence of law as symbolic and material force and law as document and documentation. Law's archive is a site from which law derives its meanings, authority, and legitimacy, a proliferation of documents that obscures its originary violence and its ongoing force, and a trace that holds the potential to reveal its foundations as (il)legitimate.