Iconic, Archaeologic and Analytic Uses of History - Reading Goodman's Origins*

Author:	Archie Zariski BA, LLB, LLM, Grad Dip Higher Ed Senior Lecturer in Law, School of Law, Murdoch University
Subjects:	Jurisprudence (Other articles) Law -- History (Other articles)
Issue:	Volume 4, Number 2 (June 1997)
Category:	Current Developments

1. I found this volume to be useful and stimulating but probably not in the ways expected or intended by the author or publisher. And so this review must tread carefully lest it wrongly prescribe for others. For that reason I will start by situating my reading of this book in my experience which surrounds it.

2. Law for me was first a profession then a scholarly study. My post-vocational reading has in a way circled about the law - economics, psychology, sociology, history, in a "triangulating" approach to understanding legal phenomena. All this has perhaps contributed to a certain degree of reflective distance on the experience of being in the "middle of law" as lawyer or law teacher. Perhaps you might say I sought an inoculating dose of scepticism towards the high claims of law. Reading Goodman's Origins recently thus served as a clinical trial of the strength of my immunity, since this book embodies all the infectious enthusiasm for the modern English legal system one could want.

3. The evolutionary thesis of Origins represents a subtle predilection for the present legal regime which seems to me to qualify as ideology. For those without a built up immunity to such claims, however, this volume might be very persuasive and thus incapacitating. My advice therefore is not to read this book until after a course of treatment in the shape of absorbing other perspectives on modern law or at least to follow it directly with such medicine.

4. What Goodman has done is to make use of history in a way I will call iconic as distinguished from two other approaches which I describe - the archaeologic and analytic. The intent in the iconic approach is to embody the past of present knowledge and value through selective choice of historical incident. For Goodman the assumed valued knowledge is something ill-defined called the "western legal tradition" (which given the contents of the book should be called the "English legal tradition"). This cultural concept is implicitly treated as the culmination of progress toward an enlightened modern legal order. According to Goodman's Preface such a tradition "inherited, absorbed and transformed" Graeco-Roman culture, continued ("albeit changed") in medieval Christendom, and finally ("transformed again") spawned the modern rule of law epitomised by "constitutionalism". What Goodman has chosen to include in this volume are events and materials which she believes "trace the thread, tenuous at times" of this progress. The product is an assembly of factual and literary icons which serve to endow the modern Anglo-Australian legal system with an honourable ancestry and the legitimacy of a synthesis of historical competing forces.

5. Some insight into this process of iconisation of the past may be gained from another work which is a valuable antidote to the theses of Goodman's Origins. I am thinking of Kerruish's Jurisprudence as Ideology[1] in which the term "fetishism" is used to refer to the elevation of contingent practices into the realm of the sacred. Here is her description of the process:

   "A Constitution, for example, a document drawn up at some time in the past by a group of empowered men which, in more or less convoluted prose, sets out their ground rules for human association, becomes invested with genius after no more than the passage of time. Superior courts go through their business in a ritualised manner, in fancy dress, with people playing out various roles in a distinctive language and by use of an elaborate and highly mannered set of conventions, and this drama is seen as homage to the majesty of the law. ... Somewhere, between an event that might happen to anyone in the ordinary course of his or her life and these sacred rituals, there is a form of human activity which manufactures these mysteries."[2]

6. For Kerruish, this manufacturing activity involves the production of an ideology. This is paralleled by the iconisation of selected elements of history as in Goodman's text.

7. Further insight into the process of mythification of history encountered in Origins may be gained by contrasting it with Michel Foucault's archaeologic approach to delving into the past. For him the past is a treasure trove of "positivities", discursive formations which empowered particular practices and constituted certain knowledges but which were not steps on an idealised path of progress to the enlightened present. Such historical formations are not necessary developmental stages of modern individualised Western society operating on the basis of instrumental rationality. The past is not used by Foucault to reinforce the present. As he described it, archaeological method differs substantially from a history of ideas - what I call here the iconic approach to the past:

   "Instead of exploring the consciousness/knowledge (connaissance)/science axis (which cannot escape subjectivity), archaeology explores the discursive practice/knowledge (savoir)/science axis. And whereas the history of ideas find the point of balance of its analysis in the element of connaissance (and is thus forced, against its will, to encounter the transcendental interrogation), archaeology finds the point of balance of its analysis in savoir - that is, in a domain in which the subject is necessarily situated and dependent, and can never figure as titular (either as a transcendental activity, or as empirical consciousness)."[3]

8. Foucault's archaeology thus preserves the strata of surrounding and supporting rubble while excavating the past rather than lifting out, cleaning and polishing only those fragments which seem the most worthy precursors to modernity. I must note that by including translations of some of the original sources referred to in her text Goodman has allowed the positivities of past knowledges to be glimpsed in a tantalising way. But they are not pursued by her, with one exception. At various points she describes the anomalous or subordinated position of women in the march of history towards the modern rule of law. One wishes that she had taken such investigation further.

9. Another aspect of Foucault's approach to history should be mentioned in contrast to Goodman's and that is the method of genealogy. Where Goodman seeks the blue-blooded pedigree of modern English law Foucault did not hesitate to dust off the skeletons in the closet. As Kendall and Wickham put it, genealogy is "a methodological device with the same effect as a precocious child at a dinner party: genealogy makes the older guests at the table of intellectual analysis feel decidedly uncomfortable by pointing out things about their origins and functions that they would rather remain hidden."[4] Icons are meant to reassure and to comfort the present, not to disturb its self-satisfaction and this is what Origins offers, rather than a challenge to reflect on inherited inadequacies and corrupted legacies in our present legal system.

10. Finally I would like to contrast Goodman's iconicism with another competing approach to history which I call the analytic, exemplified in the method employed by Max Weber. Weber saw human society as organised by a limited number of principles which it was the task of sociology to elucidate. Although from a certain standpoint rationality as defined by Weber was a touchstone of human development, nevertheless it was not the exclusive possession of the present nor an eternal good. Analytical method as practiced by Weber was open to discovering the anomalous and the ambiguous in the past whatever light it shed on the present. He described his approach in these terms:

    "In all cases, rational or irrational, sociological analysis both abstracts from reality and at the same time helps us to understand it, in that it shows with what degree of approximation a concrete historical phenomenon can be subsumed under one or more of these concepts. For example, the same historical phenomenon may be in one aspect feudal, in another patrimonial, in another bureaucratic, and in still another charismatic. In order to give a precise meaning to these terms, it is necessary for the sociologist to formulate pure ideal types of the corresponding forms of action which in each case involve the highest possible degree of logical integration by virtue of their complete adequacy on the level of meaning. But precisely because this is true, it is probably seldom if ever that a real phenomenon can be found which corresponds exactly to one of these ideally constructed pure types."[5]

11. The analytic use of history therefore is dedicated to providing a logical structure within which the past can be appreciated in itself. This can be contrasted with a practice of reconstructing history with the result of justifying present practices which is the hallmark of the iconic approach. It is precisely in Goodman's statement that a tradition "inherited", "absorbed", "transformed" and "changed" has endured and ultimately flourished that the iconic approach is enunciated.

12. This then is the tissue of texts and web of experiences within which I have appreciated reading Goodman's Origins. To put it that way is to reveal my predilection for the archaeologic approach. Here I have attempted to excavate the surrounding strata of meaning and experience which were associated with this reading. And it leads me to conclude that this book, like any single text, is a dangerous thing, not to be prescribed alone but only in company with its antidotes.

Notes

[*] Ellen Goodman, The Origins of the Western Legal Tradition: From Thales to the Tudors, Sydney: The Federation Press, 1995.

[1] Valerie Kerruish, Jurisprudence as Ideology , London: Routledge, 1991.

[2] Ibid, 4.

[3] Michel Foucault, The Archaeology of Knowledge , A M Sheridan Smith, trans, London: Tavistock, 1972, 183.

[4] G Kendall and G Wickham, Using Foucault's Methods, London: Sage, forthcoming 1998.

[5] Max Weber, Economy and Society: An Outline of Interpretive Sociology, Vol 1, Ephraim Fischoff et al, trans, Guenther Roth and Claus Wittich eds, New York: Bedminster, 1968, 20.