data in light of existing theories and approaches to produce a “best fit” explanation of an unexplained or undertheorized phenomenon.29 One of the most important aspects and major contributions in both Johansen’s and Nääv’s respective construction of an “archive” is, I argue, that they provide an effective and fruitful way to study change over time in a legal context. In Nääv’s work, this change is clearly political in nature. She uses the archive specifically to show how political ideas about equality – demands for broader, substantive justice – were translated, reshaped, and neutralized as they entered into the Swedish legal system. Her method is effective because it enables her to focus on the “transformational moment” (the moment political claims turn into law, via preparatory works),30 borrowed from Mauro Zamboni.31 This is a fruitful combination because it lets her capture political tension before it is smoothed out into stable legal categories. By structuring the archive around discursive themes (universalism, legalism, majoritarianism, etc.32), she can trace patterns across decades, showing both continuities and breaks, and how and why the language of equality in law shifted – from substantive equality toward formal non-discrimination – over time. This approach resists the temptation to treat the law either as the simple product of political will or as a purely tech112 constructing the past: legal archives and critique 29 Uwe Flick, An Introduction to Qualitative Research, New York 2014. Abduction involves interpreting individual cases based on a hypothetical overarching pattern, which, if true, explains the case in question. The interpretation is then corroborated through new observations in the form of new cases. During the process, the empirical application area is gradually developed, and the theory (i.e., the proposed overarching pattern) is also adjusted and refined. Through its focus on underlying patterns, abduction differs from induction and deduction because it involves understanding. Abduction starts from empirical cases but does not reject theoretical assumptions. 30 Nääv, (O)likabehandling. Likabehandling och jämlikhetsförbättrande åtgärder i den svenska diskrimineringslagstiftningens genealogi (above, note 10), p. 47 ff. In her thesis, Nääv describes this moment as follows: it is “[t]he point in the legislative process when specific legal categories and concepts are introduced as the most appropriate for transforming the values expressed in the political sphere into law” (ibid, p. 47–8); “[t]he legislative moment is thus the sequence or operation in or during which a policy is transformed into legislation”(ibid, p. 49, my translation). 31 Mauro Zamboni, The Policy of Law: A Legal Theorethical Framework, Bloomsbury 2007, p. 61 ff. 32 Nääv, (O)likabehandling. Likabehandling och jämlikhetsförbättrande åtgärder i den svenska diskrimineringslagstiftningens genealogi (above, note 10), p. 73 ff. The archive as a way to understand change in law
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