Legal Archaeology

• Author: Julie Novkov
• Date: 01 June 2011
• DOI: 10.1177/1065912909355714
• Published date: 01 June 2011
• Subject Matter: Articles

Political Research Quarterly
64(2) 348 –361
Legal Archaeology
© 2011 University of Utah
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DOI: 10.1177/1065912909355714
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Julie Novkov1
Abstract
This article proposes a mode of analysis drawing from historical institutionalism and American political development
but that is generated more organically from within the study of law. This approach, legal archaeology, focuses on the
production of legal discourse while attending to the institutional boundaries and conditions around this production.
Legal archaeology is particularly useful for understanding the role of law in constructing subordinated identities.
Illuminating legal struggles over the boundaries of subordinated identities facilitates consideration of how subordination
is institutionalized, though archaeology maintains legal institutions at the center of the analysis. The article concludes
with examples of the analysis.
Keywords
qualitative methods, interpretive methods, law and courts, law and American political development, law and identity
This article describes a mode of analysis that recognizes
their significance. Robert Cover’s theory that legal
the value of historical institutionalism and of substan-
discourse is inherently imbued with state-based power
tive work done under the banner of American political
through its connection to violence provides a concrete
development (APD), but that comes more organically
means for implementing Foucault’s advice to study
from within the study of law. This approach, termed
power itself through the study of the production and
legal archaeology, begins by analyzing the production
development of legal discourse. This focus, achieved
of legal discourse while attending carefully to the insti-
through legal archaeology, relies upon and builds
tutional boundaries and conditions that contribute to
explanatory theories about the porous nature of legal
this production. While influenced by Michel Foucault’s
institutions, critical theories about discourse, and a
archaeological approach to the study of history, it incor-
developmental theory that focuses on power but does
porates criticisms of Foucault’s theories, some branches
not ignore agency as both an individual and institu-
of law and society, and recent work in interpretive polit-
tional phenomenon.
ical science. By focusing on legal discourse understood
This reflection on method is prompted by the matura-
broadly as the formal language of argumentation pro-
tion of historical institutional approaches and the
duced in and through legally structured conflict, the
development of a significant tradition of nonquantita-
approach reworks some of the orienting questions of
tive, institutionally based scholarship in the study of law
APD. In contrast to other Foucauldian and postmodern
and politics. Beginning with Rogers Smith’s (1988) call
approaches, archaeology emphasizes the state rather
to revitalize normative institutional analysis of the
than the disciplinary power of law at the margins. In
courts, the law and courts field transformed through the
sum, legal archaeology melds insights from critical
growth of historical scholarship. Several prominent
studies of law and society with the institutional focus of
scholars identify themselves either as practitioners of
APD to understand legal institutions as fluid entities
American political development or at least as fellow
through which ideologies, cultural values, and state pol-
travelers (see e.g., Kahn and Kersch 2006). In 1990,
icies interact.
the APSA established a separate group of panels at the
Legal archaeology empirically explains how the
Annual Meeting under the banner of Constitutional Law
relationship among culture, legal institutions, and ide-
ologies produce state policies. These insights can then
1University at Albany, Albany, NY, USA
inform how we understand political development by
bringing culture in at the ground level and can inform
Corresponding Author:
Julie Novkov, Department of Political Science, University at Albany,
how we understand law and society by contributing a
SUNY, 135 Western Avenue, Albany, NY 12222, USA
thicker conception of legal institutions and
Email: jnovkov@albany.edu

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Novkov
349
and Jurisprudence (Law and Courts, n.d.). While attitu-
that structure political orders and provide the openness
dinal scholars and formal theorists have continued to
within these orders that can presage change.
dominate the article awards in the section,1 recent book
As a method, legal archaeology draws from poststruc-
awards have gone more to law and society scholars and
turalist insights, considering moments of fracture,
historical institutionalists (Law and Courts, n.d.).2 These
discontinuity, and instability as particularly useful places
new approaches, however, are themselves varied in what
to observe the organization of power as it reveals itself
they bring to the table.
dynamically (Foucault 1968). A move toward Foucault
Recent scholarship has moved beyond demonstrating
may seem troubling in an approach consciously designed
how historical institutionalism asks and answers distinct
to address formal state institutions, given Foucault’s
questions that depart from the attitudinal and strategic
insistence in his later work that power can only be under-
models. Instead, scholars are considering how the courts
stood when studied at the margins and through its flow as
function institutionally with other national institutions
a disciplinary mechanism through the rhythms of every-
over time and across regimes (see e.g., Gillman 2006;
day life. Nevertheless, the critical history that Foucault
Kersch 2006b; Tushnet 2006; Whittington 2007) and
sketches in methodological terms provides a guide for
how historical institutional scholarship addressing the
constructing better understandings of legal discourse,
courts may require revision or refinement of tools bor-
how it relates to power, and how its development over
rowed from American political development (Kahn 2006;
time reflects and shapes cultural change. Skowronek and
Kahn and Kersch 2006). These questions resonate with
Orren and their followers understand change as a durable
broader APD questions about order, change, and the sig-
shift in governing authority, which is a helpful marker in
nificance of time in institutions, but core APD questions
identifying large-scale developmental phenomena as
and the approaches developed for addressing them do not
they connect to political regimes (Orren and Skowronek
always capture what is interesting and significant about
2004). The roots of change, however, may lie outside of
legal change. This article advances questions about the
formal political institutions; these institutions may in the
relationship between legal discourse and institutional
end merely confirm or seal change rather than making it.
change through a consideration of both epistemology and
As a contested discursive system, the law provides a plat-
method. It will first describe the theoretical roots of legal
form (albeit not the only one) for testing and legitimating
archaeology, explain the approach itself, and then dem-
state actors’ capacity for imposing solutions to conflict.3
onstrate the approach briefly with reference to two
Archaeology should be understood metaphorically,
previously published studies.
but relies on Michel Foucault’s use of the concept rather
than being a directly metaphorical analogy to the work
Theoretical and Epistemological
of archaeologists. Foucault, in The Archaeology of
Knowledge, describes his approach as follows:
Underpinnings
Both the Pierson/Skocpol approaches to APD, which
What, in short, we wish to do is to dispense with
focus on questions about time and path dependence, and
“things.” To “depresentify” them. To conjure up
the Skowronek/Orren approaches, which focus more on
their rich, heavy, immediate plenitude . . . To sub-
questions concerning order and change and the uneven
stitute for the enigmatic treasure of “things”
developments and relationships among multiple institu-
anterior to discourse, the regular formation of
tions, can structure analysis of legal institutions. For the
objects that emerge only in discourse. To define
legal archaeologist, however, the work of Skowronek and
these objects without reference to the ground, the
Orren and other APD scholars who address culture (e.g.,
foundation of things, but by relating them to the
Victoria Hattam) and rhetoric (e.g., Jeffrey Tulis 1988
body of rules that enable them to form as objects
and the essays collected by Richard Ellis 1998) are more
of a discourse and thus constitute the conditions of
useful, though the specific limitations of these approaches
their historical appearance. To write a history of
regarding legal institutions will be addressed in the fol-
discursive objects that does not plunge them into
lowing. While the idea of path dependence is highly
the common depth of a primal soil, but deploys the
useful for understanding some institutional phenomena
nexus of regularities that govern their dispersion.
in American politics, the process of tracing path depen-
(Foucault 1968, 47-8)
dence, as discussed in the following, conflicts with the
approach and goals of archaeology, which focuses on
Foucault’s approach to history focuses on the contextual
the...