The archive is a place populated by historians, anthropologists, and legal scholars. Yet, unlike their colleagues, legal scholars have adopted an oddly uncritical attitude to the question of law’s own disciplinary archive (Mawani 2012). As Foucault observed, the archive is ‘first the law of what can be said, the system that governs the appearance of statements as unique events’ (Foucault 1972, 128 – 129). The archive represents the material and ideological outcome of a series of human decisions and accidents about what to record, what to keep, and what to discard. Given its constructed and iterative birth, the archive therefore cannot stand in for a truthful or accurate account of ‘how things were’ (were such truth or accuracy to be desired).
Like the historian, the judge and the lawyer go about their work by organising words and objects to represent rules and events. Law generates documents, selects from them and other domains of knowledge, and decides on the relevance of its selection. Thus, the law is not in, alongside, or drawn from the archive — it is the archive (Mawani 2012). Approaching international law as an archive offers a perspective from which to view the topography that has resulted from the seismic relationship between law, time and fantasies of the ‘global’. The contents of the archive exist by their nature both in the past and in the present. They ‘come from’ the past, but they are noticed because of their (perceived) relevance to and significance for the present. This is only the ordinary metaphysics of history. But it is even more perplexing in the case of international law, which has spent its brief (disciplinary) life announcing that the past is behind us once and for all.
Declarations of ‘never again’, assertions that human rights inaugurated a new dawn for humanity, models of development that propel the human race along a path to ‘maturity’, again and again, international law relentlessly declares its novelty. So, with this in mind, we ask: how can we reimagine international law’s archive?
As one supremely tragic bookend to the ‘long’ nineteenth century, the ‘Great War’ is offered to international lawyers as a turning point — as a hinge between the imperial and the modern (see Berman 1999). The extended moment of memorialisation in which we find ourselves today presents, in our view, a critical opportunity for interrupting the sensibility of this bounded past.
‘Progress’ is the lens through which, conventionally, this imperial past comes to be known as past, and our present becomes modern. Yet, we know that in making sense of the past this conventional account of the forwards march of modernity — and international law — appropriates and organises particular materials, deploying an assemblage of sources that evidence the meaning of ‘then’.
A particular archive of international law is thus constructed, mobilised and sedimented, setting in place — as with all assemblages of knowledge – a particular order of things (Foucault 1973). How might we then disrupt that process of sense- making which, confronted with the radical inaccessibility of the past, seeks to make real a particular ‘then’ through the memorialisation and remembrance of some things, and, of course, the silencing and obliviation of others. Most importantly, perhaps, what are the stakes in questioning this conventional archive of international law?
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