Legal archaeology : towards an historical grounding of law without origin

• Main Author: Gibson, Hayley
• Other Authors: Kletzer, Christoph ; Green, Penelope Jane ; Malik, Maleiha
• Published: King's College London (University of London) 2018
• Online Access: https://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.754969

This thesis aims to reinstate Foucault’s archaeological method for the purposes of legal theory. In defiance of its nearly universal criticism, I argue that the archaeological method maintains an overlooked capacity to provide a peculiar, historical, model of the “foundations” of law. In critical legal circles, it is held that the law is radically without foundation: in deconstruction, law is the violent imposition of a decision that infinitely defers the coming of its own foundation; while the modern exercise of governmental power increasingly refuses association with a sovereign centre of authority as we shift into a “permanent state of exception”. This thesis questions both the truth and desirability of these conclusions by drawing upon a theme that links the unfounded law of deconstruction to the absent law of governance; namely, their shared understanding of “law” as a function of history. A study of the critical theory suggests that the unity and intelligibility of an order, the foundation and conservation of authority, inheres in a paradoxical relationship between past and future. In these theses, order may maintain itself by constantly pushing its fictitious origin into the past; or it may forcefully declare its future applicability. Each nomological moment therein takes the grammatical form of an ‘historical a priori’: a paradoxical motif which can, I argue, and in light of the fact that it subsists even in the most wholesale disavowal of a “Law of law”, have a legal life of its own. The ‘historical a priori’ in Foucault’s archaeology exemplifies precisely this autonomous character. In defending it, and drawing upon it, I aim to show that conceptualising legal ‘foundations’ in this historical manner, without origin, can reinstate the strategic momentum that has been lost in the wholesale destruction of origins; all the while retaining fundamental critical-legal, anti-Platonic and post-Sovereign principles.