Reopening the Archive: From Hypomnesis to Legal Ontology For some time now, there has been a quietly flourishing literature on the theoretical question of ‘law and the archive’; and yet it is lamented 1 See Mawani “Law’s Archive”, 349. There is also an oblique reference to the work in Van der Walt, “Interrupting the Myth of Partage”, 290 that perhaps the most important homage to the archive by a ‘juridical thinker’ In “The Archive and the Beginning of Law” (41), Cornelia Vismann opens with the following: “In any attempt to describe Jacques Derrida’s mode of thinking, the word juridical comes to mind.” has been underused to date in legal circles. Archive Fever, Derrida’s 1994 address to the Freud Society, finds itself consigned, or at least subject to the threat of consignment, to an encompassing legal forgetfulness. And perhaps there is good reason – even an injunction? – not to forget that address, even while it is apparently being dispensed with. It will be the unfulfilled objective of this essay to furnish such an injunction with some justification, by asking two ancillary questions: how might the relationship between law and archive be rethought following a particular reading of Archive Fever – one in which the deconstruction of the Freudian archive is excavated for its legal potential? And, secondly, might this particular approach allow some form of engagement with – which is not the same thing as a ‘deconstruction of’ (there is plenty of this) – the project of modern law? Not only insofar as the latter must, I think, be defined by its unceasing effort to establish a legal ontology; but also because any differentiation of precisely these entities (‘law’ and ‘the archive’) must necessarily beg the same question. Recalling Law and the Archive In Files, the late Cornelia Vismann’s beautiful genealogy of the law, there emerges a history of the archive, in its various manifestations, as a supplement to the law. Investigating “how files control the formalization and differentiation of the law,” how they “process the separation of the law into authority and administration,” Vismann, Files, xii Vismann posits a theory of the archive as the constant and constitutive barrier that is always situated “before the law” in the Kafkian sense: prohibiting access to, and yet compelling us towards, the hollow, often cavernous recesses which contain, disguise and suggest the ambiguous power of the law. As Thanos Zartaloudis explains, this investigation places the archive not only before the law, but also beside it, to the extent that the ‘para-legal’ archive invites an analogy with Giorgio Agamben’s development of theological oikonomia Zartaloudis, “The Archival Work of the Law”, 138. The latter envisions a vacancy at the centre of sovereign power, which is nevertheless exercised through governmental apparatus in a bipolar system in which the being and praxis of sovereign power are separated but functionally articulated in an economy See Agamben, The Kingdom and the Glory. Likewise, Vismann’s archive performs the ministerial function through which, despite its intangible and inaccessible nature, the law is be glimpsed, or suggested: files “lay the groundwork for the validity of law, they work toward the law, they establish an order that they themselves do not keep” Vismann, Files, 13. This ministerial function – which takes its form in the preamble, the barrier and the chancery – is possessed of a powerful ambiguity: it is a “legal twilight zone” in which the violence of the law is carried out, and in which “the law encounters writing and decides about the distinctions that are performed in the symbolic” Ibid., 29. Importantly, this placing of the law beside the archive contemplates (while, of course, problematising) a distinction between law on one hand and archive on the other: “[the law] works with them [files] and creates itself from them…it operates in a mode of difference that separates it from the varying formats of files” Ibid., 13 (emphasis mine) This ‘difference’, however, flies in the face of Derridean différance; and Vismann’s genealogy of law and files sits uneasily beside Derrida’s ‘juridical’ archive. While Vismann is aware of Archive Fever, she makes only sparse reference to the latter in Files. In a later piece Vismann, “The Archive and the Beginning of Law”, however, she will address the essay more directly, making the observation that Derrida’s grammatological account of the archive is “indifferent to the history of archives” Ibid., 44 and, by extension, her own earlier genealogy. Vismann’s point of departure here is Derrida’s reliance, early in the essay, upon the Greek word arkhé (commencement), in light of which he explores the etymological similitude of archons (those with authority to interpret the law) and arkheia (archives). Such a similitude is suggestive of a nexus between the interpretive commencement of the law and the form of the archive. In line with Derrida’s Force of Law in which the moment of decision suspends and founds the law, the archive is presented as something which entails a dialectical movement of juridical precedent and authoritative decision: “Derrida presents [the archive] as a form of law” Ibid., 52 (emphasis mine). But this, Vismann argues, is to “disregard[…] something in the genesis of the rule of law from the archive which could be called the imperial factor” Ibid., 44. While Derrida, in Vismann’s reading, renders the interpretation of archives commensurate with ruling authority and thus invests ‘the archive’ with the source of the law in the sense of the ‘rule of law’; a more comprehensive history of ‘law and the archive’ will reveal that it is not until the Imperial Roman tradition that we witness an “ascertainable moment in time when the archive becomes the rule of law” Ibid.. To begin with, the Greek arkhé does not coincide with any habitual practice of consulting archives as sources of law; moreover, explains Vismann, there is a telling event, in the 6th century, when Justinian “ordered a complete review of the archives’ legal texts so that no lawyer after him would have to refer to the archives ever again” – in short, it is at this point that “[t]he archive had become text” and “[t]he archive texts summarized in codified form became the law” Ibid.. “From a legal historical perspective,” Vismann concludes, “the conjunction of rule and law begins after reference to archived texts has been abolished” Ibid.: as a result, the possibility of referring to a beginning that is endowed with law (the possibility, that is, of law being founded upon a legal rule as opposed to more the simple political authority that invests archons with the right of interpretation) depends precisely on the historical moment in which the archives are consolidated, transformed into the rule of law but losing in the process their ‘archival’ character. Derrida is in error, then, when he equates the archive with the law, and when he reads both ‘rule’ and ‘law’ into the concept arkhé. For Vismann, this equivalence of law and archive could only have taken its cue from the law of the archive, namely that “it precedes” Ibid., 43. From the observation that the archive and the law are similar in structure and function, we are led to the apparently contentious conclusion that “[t]he abstract law is nothing but a virtual archive; it precedes the individual case just as the archive texts precede current ones” Ibid., 44. It would appear, then, that the structure of “precedent” is not a sufficiently juridical motif with which to justify the “convergence of law and archive”, precisely where history indicates, to the contrary, their mutual exclusion in the Justinian event. This event notwithstanding, however; surely an epistemological, if not an ontological, anxiety must niggle at this thread of reasoning: for surely this history is only possible on the basis of an apparent distinction between “law” and “archive” in the first place; and (to further compound the issue) between “law” and something called “abstract law” in the second. What, one might ask, is the status of this “law” that is neither “abstract” nor commensurate with “archive”? We may contrast Vismann’s differential relationship of law and archive to a more recent article by Renisa Mawani, in which she queries the underdevelopment of the state of legal discussion of Archive Fever and asserts, moreover, that “the law is the archive” (Mawani, “Law’s Archive”, 351, emphasis mine) Any demand for a legal ontology is overshadowed by the more pressing matter of methodology in this later essay (if not in Files). Importantly: it is not that Archive Fever is without value, for Vismann; but that it is one of at least two available methods. To the science of arkhé-logy, “the science of the commencement” which, seemingly more appropriately in Heideggerian fashion “reads a beginning (arkhé) back into the origins and thus arrives unmistakenly at the rule of law,” she opposes (and is a proponent of) “an archive archaeology” which “steps out of the symbolic order” referring to “that which does not speak, the space of the archive…” Vismann, “The Archive and the Beginning of Law”, 51. Putting aside for the moment the fact that Derrida had, long before Archive Fever, addressed the problems inhering in any archaeology of silence See Derrida, “Cogito and the History of Madness”; and Rob Boyne’s illuminating analysis of this issue in Foucault and Derrida, the justification for this opposition for Vismann appears to lie in the grammatological incapacity to grapple with the “[m]aterial conditions, such as lack of space and fired clay” that dictate the relationship of archives to the law; but which are precisely conditions “fall[ing] outside the perception of a juridical thinking of the archive” Vismann, “The Archive and the Beginning of Law”, 52. Too much law, then; and too little materiality – this is the sacrifice undertaken by a grammatological account of the archive. By contrast, Vismann’s genealogy would reveal point of emergence of the ‘rule of law’, which is to say, the self-perpetuating, self-containing capacity of rules upon which the very existence of the modern law now relies and over which its postulates must agonise: the journey through archival materiality thus pre-emptively usurps the quest for legal ontology. In what remains of this essay, I will consider precisely these two, related, problems – legal ontology and ‘materiality’ – in contemplation of the juridical archive of Archive Fever. In the first place, the archival structure, I will argue, is necessary to, and prefigured in, the law, in its modern (and arguably only) incarnation There is not sufficient space here to discuss the idea that modern law alone is ‘law’ insofar as it claims to have freed itself from power, violence or politics – of course, this is an ideological lietmotif, rather than an actual achievement of the law, and I do not suggest that we take seriously any notions of a ‘primitive law’ or a ‘pre-legal state’ in contradistinction to modernity. Rather, and to be Foucaultian, I am of the view that it is with a practiced epoche that we must approach this fable, in order to grasp our subject at last. See, e.g., Dreyfus and Rabinow, Beyond Structuralism and Hermeneutics.: a self-generating and self-referential system of norms perpetuated in accordance with the rule of law, with the ever-present possibility of referring ‘back’ and writing anew Such are systemic positivist theories of law: see, e.g., Kelsen Pure Theory of Law; Luhmann Law as a Social System.. To establish this point is to turn Vismann’s critique on its head: we must determine the archival nature of “the law” first, if we are to use it at all – let alone to investigate its coexistence with media. Incidentally, to follow a path through deconstruction to the question of archival-legal ontology is all the more pressing since it stands in the shadow of the already-identified achievement of Files in providing an (Agambian) oikonomic model of the differentiated, yet economically coupled, law-and-archive, in which “the formal self-generativity of the so-called modern form of law … reproduces further the myth of self-emergence through the apparatuses of its recording devices” Zardaloudis, “The Archival Work of Law”, 136. Secondly, moreover, I am mindful that the very point of deconstruction’s ‘juridical thought’ is to distinguish law, the “programmable application or unfolding of a calculable process” which “might be legal” but “would not be just” Derrida, “Deconstruction and the Possibility of Justice”, 24 from justice: that which awaits us and commands us under pain of urgency to decide on the particular, and yet which is therefore only approximated in the (im)possible decision to “go through the ordeal of the undecidable”, something “foreign to the order of the calculable and the rule” Ibid.,. What avenue of inquiry could possibly remain in respect of this calculable order, which exists only as a generative antithesis to ‘deconstruction as justice’? Both of these points, I think, might find some comfort in the development in Archive Fever, and related Derridean texts, of something of a rejoinder to association of archival science and ‘materiality’. It is necessary to begin again, not with arkhé, but with another, similarly complex term – hypomnesis : “[l]et us never forget,” Derrida warns, “this Greek distinction between mneme or anamnesis on the one hand, and hypomnema on the other. The archive is hypomnesic” Derrida, Archive Fever, 11. In doing so, I will endeavour to revive a theme that has been forgotten in the extant discourse; and which shall have already ‘justified’ the re-opening of Derrida’s archival text I am drawing a parallel here with the Freud of Derrida’s text who ‘pretends to worry’ about the potentially wasteful expenditure of material in putting to the press his thesis on the death drive. It is precisely because of its destructive force that such expenditure finds its justification and, as I shall explain, the death drive has everything to do with forgetfulness and law. See Derrida, Archive Fever, 8-12.