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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 the value of historical institutionalism and of substantive work done under the banner of American political development (APD), but that comes more organically from within the study of law. This approach, termed legal archaeology, begins by analyzing the production of legal discourse while attending carefully to the institutional boundaries and conditions that contribute to this production. While influenced by Michel Foucault's archaeological approach to the study of history, it incorporates criticisms of Foucault's theories, some branches of law and society, and recent work in interpretive political science. By focusing on legal discourse understood broadly as the formal language of argumentation produced in and through legally structured conflict, the approach reworks some of the orienting questions of APD. In contrast to other Foucauldian and postmodern approaches, archaeology emphasizes the state rather than the disciplinary power of law at the margins. In sum, legal archaeology melds insights from critical studies of law and society with the institutional focus of APD to understand legal institutions as fluid entities through which ideologies, cultural values, and state policies interact.
Legal archaeology empirically explains how the relationship among culture, legal institutions, and ideologies produce state policies. These insights can then inform how we understand political development by bringing culture in at the ground level and can inform how we understand law and society by contributing a thicker conception of legal institutions and their significance. Robert Cover's theory that legal discourse is inherently imbued with state-based power through its connection to violence provides a concrete means...