AustLII Home | Databases | WorldLII | Search | Feedback

University of Technology Sydney Law Research Series

You are here:  AustLII >> Databases >> University of Technology Sydney Law Research Series >> 2014 >> [2014] UTSLRS 3

Database Search | Name Search | Recent Articles | Noteup | LawCite | Author Info | Download | Help

Biber, Katherine; Luker, Trish --- "Evidence and the Archive: Ethics, Aesthetics, and Emotion" [2014] UTSLRS 3; (2014) 40(1) Australian Feminist Law Journal 1

Last Updated: 16 February 2017

EVIDENCE AND THE ARCHIVE: ETHICS, AESTHETICS AND EMOTION

Katherine Biber and Trish Luker[*]

During her lifetime, Susan Sontag sent 17,198 emails. Today they are kept in the Department of Special Collections at the Charles E. Young Research Library at University of California Los Angeles (UCLA), where researchers can read them on a special laptop. The emails reveal the minutiae of her friendships, her appointments, and the small, forgotten details of everyday life. Sontag’s official biographer, Benjamin Moser, has written about the ‘queasiness’ he felt as he read them, ‘unease, sometimes verging on nausea’, as he was drawn into his subject’s sex life, her finances, medical records, failures, disappointments and difficulties.[1] Sontag’s email archive is stored on two small hard drives, each labelled with a Post-it note.

Sontag was born in 1933, so most of the Susan Sontag archive is on paper. The Sontag papers run across 132 linear feet, filling 264 boxes, 67 oversize boxes and one oversize map folder. They include letters sent to and from Sontag, arranged alphabetically, including correspondence with artists and writers, personal correspondence and love letters. Her opera programs, political activism, teaching materials, notes and manuscripts relating to her published and unpublished works are there, and also juvenilia—crayon drawings on newsprint made when she was aged around six, and writing practice in pencil from around the same time[2]—her spelling and school workbooks, junior high school projects, exam papers and course notes from her undergraduate and graduate studies.[3] The collection is augmented by her library of 20,000 books, many of them annotated or inscribed.[4]

The collection is probative of Sontag’s auto-archiving practices, evident since her early childhood, and it was purchased directly from her in two tranches, with archivists aspiring to maintain Sontag’s own systems for organising and arranging her records.[5] Whilst all archivists are familiar with the effects of time and climate upon paper records, Moser writes about the challenges faced by UCLA archivists in protecting Sontag’s digital files against the ravages of ‘bit rot’, the instability of computer storage drives, and the threats of technological obsolescence; documents she created around 1995 on a PowerBook 5300 need to be preserved using new software and equipment enabling researchers to view these materials as Sontag would have seen them.[6] UCLA archivists have used techniques developed by law enforcement to ensure that the documents are preserved in their original format, with subsequent viewers leaving no digital traces upon them.[7]

Although Moser knows he is consulting records that Sontag deliberately intended for public access, he nevertheless describes ‘the feeling of creepiness and voyeurism that overcame me’ as he read Sontag’s e-mails, imagining her ‘thinking and talking in real time’.[8] Despite the accessibility of this vast archive, and the intimate insights it provides into her life and affairs, there are two boxes of Sontag’s journals which are restricted until 2029, 25 years after her death.[9]

Researchers who use archival sources form various ethical, aesthetic and emotional relations with their sources. These arise regardless of how they may conceive of the ‘archive’. Contributions to this special issue of The Australian Feminist Law Journal investigate the material and conceptual traces of law, and explore how scholars from different disciplines imagine themselves as working ‘archivally’. This may involve engagement with the archive as a site, a repository of sources; it may also be a research subject in itself, invoking distinct methods, discourses and aesthetics.

Working with archives

Questions and concerns about working with archives often turn upon matters of access, use and interpretation. When accessing an archive, one might be visiting an official state record-keeping institution, perusing a private collection, searching online, or doing something else entirely. Some access is obtained legitimately, sometimes it is serendipitous, and at times it is illicit. For instance, the historian and folklorist Bruce Jackson includes in his book Pictures from a Drawer photographs taken of prisoners at Cummins Prison Farm in Arkansas which were taken at the time of their admission.[10] Jackson discovered a drawer full of extra photographs whilst conducting fieldwork in the prison and describes how he furtively stole 98 photographs, and then stored them in a cigar box for years until he came to produce the book.[11]

Does the mode of his acquisition constitute an unethical research practice? Does the book’s publication by a prestigious academic press recuperate his crime, and somehow transform it into legitimate scholarship?[12] Does the acknowledgment that the photographs are haunting and compelling outweigh the methods by which they were obtained? Conversely, the photographer and psychoanalytic scholar Henry Bond acquired archival photographs through a legitimate process, during his research into criminal case files in the British National Archive. However, his use of these images, in a project wherein he attempts to ‘diagnose’ perpetrators of sexual homicide according to a Lacanian schema by looking for ‘clues’ in crime scene photographs, has been subjected to criticism as an instance of mis-use of archival sources. His book Lacan at the Scene[13] has been described as ‘a depraved and degrading celebration of sexualized homicide’,[14] with Bond ‘revel[ling] in the provocative and scandalous nature of his project’.[15] Are there ethical limits upon what might be done with archival sources, and what kind of ethical precepts or responsibilities are engaged by archival access?

In another example, the artist William E. Jones retrieved criminal evidence — a surveillance film made by Ohio police in a 1962 operation investigating homosexual public sex — from a retired detective’s garage. He kept a copy for himself and sent the original 16mm film to the Kinsey Institute, thereby ‘archiving’ the found object.[16] Whereas the original film was used to prove criminality in legal proceedings, Jones uses it as evidence of another kind: in his artwork Tearoom (1962/2007), the film is screened in silence, mostly unaltered, and the footage becomes evidence of gay intimacy, gay sexual practices, cruising and policing. Jones, simply by re-presenting archival footage in an art space, transforms it from probative evidence into an aesthetic and a political artefact.[17] Must archival sources be interpreted according to their original contexts, or can significance or meaning change over time, or wherever the archival visitor is motivated to advance new interpretations?

Whilst archives might be collections of facts, processes or events, archives can also be emotional repositories. When Lindy Chamberlain was in Berrimah Prison following her conviction for the murder of her baby Azaria, thousands of people sent her letters and cards. After her acquittal and release from prison, thousands more wrote to her. In total, Lindy received 20 000 letters from strangers, some of them addressed to her as ‘Lindy at Ayers Rock’, ‘the Darwin courthouse’, or simply ‘Darwin’.[18] With the assistance of her parents and her then-husband Michael Chamberlain, she collected and arranged the letters according to her own system. For instance, hostile letters, which were usually anonymous, might be classified as ‘nasty’ or ‘nut’.[19] Later, Lindy sold all of the letters, together with her personal papers relating to her miscarriage of justice, to the National Library of Australia, which sought to retain the letters and also her distinctive classifications.[20] The Chamberlain papers fill seventy boxes, and their archivist, Adrian Cunningham, asserts that they ‘reveal the depth of emotional involvement in the Chamberlain case experienced by countless thousands of ordinary Australians’;[21] the Chamberlain papers are a literal archive of feelings.

The Chamberlain papers also provide evidence of Lindy’s personal relationship with her archive. Cunningham explains that prior to Azaria’s death, Lindy was ‘only a marginally more retentive recordkeeper than the average person’ but her experiences ‘transform[ed] her into an obsessive recordkeeper’.[22] Michael Chamberlain, however, was a professional member of the Australian Society of Archivists, and Cunningham speculates on the role he may have played in instigating Lindy’s auto-archiving practices.[23] One of the collection’s independent valuers wrote: ‘The style and spirit of its ordering are such that it offers an unusual degree of completeness. It has been assembled in a fashion so rigorous that it is almost impossible to imagine an instance of conscious or willing exclusion’.[24]

While, of course, Lindy’s ongoing accumulation of papers relating to Azaria, a discipline she continues today, is motivated by her desire to remember and honour her daughter, Cunningham writes that her persistent collecting, and the decision of the Chamberlain family to sell their papers to a public institution, responds to their knowledge of the ‘symbolic significance’ of their litigation in Australian collective memory.[25] As a collection, it demonstrates many of the themes we have invited contributors to explore in this special issue.

What is an archive?

An archive might be an official repository of state records, it might be a private collection of papers, or it may be a means of bringing together materials related to a specific group or agency. It might be easily accessible, for instance, freely available online, or it might require that visitors make some effort, or travel some distance, to view its contents. It might be restricted to certain people, or it might be closed altogether, whether permanently or for a defined period. Visitors might require permission or documentation to access, they might be obliged to conform to certain protocols, or they might use an online search facility.

The archivist John Ridener writes that ‘archives hold singular information not duplicated elsewhere’.[26] Alternatively, the historian Antoinette Burton defines an archive as ‘traces of the past collected either intentionally or haphazardly as “evidence”’.[27] For the curator Charles Merewether, what distinguishes an archive from a library or a collection is that the archive ‘constitutes a repository or ordered system of documents and records, both verbal and visual, that is the foundation from which history is written’.[28] As art theorist Sven Spieker explains, since the late twentieth century, ‘there seems to be little consensus as to what an archive is, [and] how it might be distinguished from other types of collections’.[29] He argues against the conception of the archive as ‘a giant filing cabinet at the center of a reality founded on ordered rationality.’[30]

Historically, the notion of an archive has repeatedly reformed itself around new administrative, technological or ideological demands. Early efforts to consolidate processes for state record-keeping were driven by the desire of Dutch colonial administrators to preserve evidence of their endeavours. Later, new techniques were demanded to collect documentation relating to the First and Second World Wars, where records needed to be drawn together from many different sources, each with their own record-keeping protocols and technologies. With the gradual emergence of discourses of transparency and accountability, citizens issued new demands upon archives. Rather than recording the workings of government, the rationale for archives shifted to recording the nature and incidence of governance, from a power-based institution to a memory-based structure, reflecting a shift from the subject of administration to its substance.[31]

Whether accumulated for posterity and history or responding to ideologies of open government and accountability, the creation of archives suggests that somebody will one day seek access. For archivists, the smallest unit of archival organisation is the ‘record’.[32] It is through the process of archival appraisal and organisation that information becomes a ‘record’; records are valuable not only for the information they contain, but simply because of their retention in the archive. Records anticipate a future archival user, somebody who might be interested in the information they contain, and the context from which they emerged. What counts as a ‘record’, however, has been subject to ongoing disciplinary wrangling, much of which may be cancelled by radical technological change.

However, even without a future visitor, an archive might come into being, thereby fulfilling Burton’s ‘archive logics’, wherein the past is brought into contact with the present, and perhaps the future.[33] Indeed, the creation of an archive may be the fulfilment of a desire — the desire to accumulate, to arrange or to store. An archive which is accumulated for its own sake is not stored in anticipation of future access. In this way, gathering, collecting, gleaning, hoarding, sorting, ordering, arranging and re-arranging might all be labelled archival practices.

But can any accumulation of materials be regarded as an ‘archive’? Burton describes the anxieties of some scholars that ‘everything’ might be an archive, ‘everywhere and hence nowhere’,[34] and which might be a consequence of democratisation, where individuals and non-government groups now also frequently inaugurate archival projects. Spieker, writing in the context of art production, explains that, to some extent, the term has to be surrendered: ‘artists will call “archives” whatever they want. ... The term has its own history already in the discourse of art, and I suppose one simply has to accept that. ... [But] one has to be very careful not to void it of any specific meaning’.[35]

As these theorists demonstrate, the notion of the ‘archive’ has been claimed and contested within cultural and critical discourse in the humanities. However, in calling for contributions to this special issue, we were motivated by a specific interest in exploring how scholars have deployed the term within legal inquiry. In particular, we were interested in whether legal evidence could be imagined archivally. We invited contributors to explore the types of uses to which evidence is put after the conclusion of court proceedings, and also to examine the ethical, aesthetic and affective implications of drawing upon this material. Given the interest in contemporary cultural theories to invoke the notion of the archive discursively, we were also motivated to explore the mode of ‘archival thinking’ in relation to legal discourse.

Evidence — the material adduced by parties to support their claims in litigation — might include documents, witness testimony or real evidence, including objects, places, experiments or demonstrations. Increasingly, evidence also includes photographic or digital visual materials. During the legal process, evidence is governed by strict rules and processes limiting the ways it might be tendered, used and interpreted. However, after the conclusion of proceedings, these rules no longer apply, and evidentiary material returns to a notional archive, where it may or may not be subject to archival regulations.

Does an evidentiary afterlife continue in the archive? Indeed, evidence continues to live, being accessed and reanimated for an ever-growing range of purposes and projects. Some of the contributors to this special issue explore the evidentiary archive by testing the limits of archival thinking, with creative works enabling scholars to investigate some of the claims made upon archives, conceptually, for the advancement of their own projects.

In ‘Rotten Prettiness? The Forensic Aesthetic and Crime as Art’, Rebecca Scott Bray describes the art practice of four contemporary artists who rely upon the aesthetics of the criminal archive. She explains how art photography might appropriate legal evidence and documentation for its aesthetic effects, and its indexicality — that it might refer to something outside of itself. In some of the work discussed, the artists construct their own crime ‘archives’, accumulating traces of past events and re-presenting them as evidence of something beyond crime. These contemporary artists are engaged in abstractions and translations of the concept of an archive, drawing upon the aesthetic qualities of legality and forensics, and making new demands upon discourses of crime as spectacle.

Whereas Scott Bray writes about wilful accumulation as an archival practice, it is accidental accumulation which is the subject of the contribution by Prudence Black and Peta Allen Shera, ‘Out, Damned Spot! The Stained Cloth of Kennedy, Lewinsky and Margiela’. The authors investigate accidental stains on garments, and the probative and affective nature of these inadvertent ‘archives’. By identifying specific instances of contamination and fascination, their article draws our attention to the notion of accumulation itself, as a site of anxiety and abjection. In this way, they test the limits of the concept of an archive by associating it with the notion of the evidentiary trace.

Archives as official records

Legal historians have long recognised that legal archives, such as court records, contain valuable information which may not be available elsewhere. Records of court proceedings, including transcripts and other evidentiary materials, are unique archival sources because they are the official record of a legal system. Such documents have distinctive characteristics, including their potential sensitivity and confidentiality, which must be considered when transferring them into archival records so that they can be used for research purposes. Certain principles, policies and practices govern public access to court records which are intended to balance the sometimes competing interests of open courts and individual rights to privacy.[36] Furthermore, while certain court records must be preserved as a record of court proceedings, others have research value, which may not be recognised at the time of preservation. When engaging in archival research involving government records, researchers have reported that valuable files have been destroyed under the authority of archives legislation.[37] While an archivist’s role is to facilitate access to records, there may be conflicting interests in attempting to balance preservation, access and ethical concerns of privacy, as well as the increasing pressures to cut costs.

In complex ways, archives mark the passage of time. The time of the administrative or judicial process is separated from the time at which its records enter the archive. The archival institution marks time by ensuring that these documents serve the prescribed term of closure before they are opened, or the necessary period of storage before they are destroyed. Thinking temporally about archives, Don Brenneis proposes we see documents as having ‘careers’, which are marked by moments of commencement and completion, reading, citing, evaluation, meetings with others, and their role in achieving certain outcomes.[38] It is a seductive analytical proposal, that a document might be considered in light of its successes and failures, as leading a starring role or consigned to obscurity, and that its career survives in the archive, subject to the ongoing vicissitudes of scholarly interest.

The legal scholar and anthropologist Annelise Riles draws attention to these temporal shifts in the archive. The moment of document creation might anticipate some future instance of retrieval, but she argues that there is a need for scholars to think deeply about what else has happened in-between, and to recognise that those moments are thought differently by bureaucracies and by everyday people.[39] Riles is engaged in an ethnographic project, and so she proposes the term ‘artifact’ to describe the document in the moment of its retrieval. Documents thus become artefacts of knowledge, events, ideas and practices, demanding ethnographic methods for their analysis and description. These methods bring with them a distinctive epistemology, ethics and aesthetics, demanding that scholars reflect on knowledge-making practices — including, and especially, their own.[40]

As these accounts indicate, the meaning and value of archival sources reflects distinctive disciplinary and intellectual paradigms. For example, in the ethnographic approach adopted by Ann Laura Stoler in her work in postcolonial studies, less attention is given to the content of the archival sources such as government commissions and reports, than to their form and placement.[41] Rather than accounts of what people thought happened, she argues that close attention to the ‘surplus production’ of official state archives — such as marginalia, transgressions between official and unofficial records, rumour, the unexpected, unwritten and the unsaid — reveals colonial archives as records of uncertainty and doubt about ‘the rubrics of rule’ and how to make it correspond to the changing imperial world.[42] In this way, Stoler argues that colonial archives reveal anxieties about subject formation and the psychic space of empire.[43]

However, Rebecca Monson points out in her contribution, ‘Unsettled Explorations of Law’s Archives: The Allure and Anxiety of Solomon Islands’ Court Records’, that legal scholars have had little to say about their own approach to archival materials or the ethical implications of their work. Monson draws on her own engagement with the records of land commissions and courts in Solomon Islands to consider not only the content and form of the archive, but also to the allure and anxiety it induced in her while conducting research. By identifying her own discomfort, anxiety and fear while conducting research, Monson adeptly casts light on some of the ethical aspects of scholarly archival research.

Legal proceedings in relation to historical injustices have played a major role in increasing attention to colonial archives as contested sites, including debates about the evidentiary weight that should be attributed to documentary sources. In Australia, archival institutions contain extensive holdings of documents relating to the governance, dispossession and surveillance of Aboriginal people, which have been used as evidence in native title claims, and for compensation by members of stolen generations, as well as stolen wages, heritage claims and royal commissions. Uncertain about their connections to family and community as a result of state practices of removal and displacement, Aboriginal people often resort to accessing archival records in attempts to establish their identity and connections to family and country. State collecting institutions have recognised the important role they can play in facilitating access to this information, but the experience may be fraught by mistrust of government institutions.[44] Further, research inquiries may result in surprising, embarrassing or shocking discoveries, or raise questions about the accuracy of the record.[45]

In another contribution, ‘Archiving the Northern Territory Intervention in Law, and in the Literary Counter-Imaginary’, Honni van Rijswijk engages with the notion of law as an archive. She focusses on the figure of the ‘abused Aboriginal child’, arguing that this figure has been significant to the production of myths of the Australian nation-state and to the rule of law. It is being used, she suggests, to justify the continued administration of Aboriginal communities. Examining the policies relating to the Northern Territory Intervention and subsequent Stronger Futures legislation, van Rijswijk explores how reading law as an archive opens up the possibility of a counter-archival practice that disorients law’s claim to violent jurisdiction over Aboriginal people. She takes Alexis Wright’s most recent novel, The Swan Book (2013), as an exemplary counter-archival text that interrupts law’s archival practices and claims.

Criminal archives

For the historian Stephen Robertson, police records are sources ‘polluted with authority’.[46] Illicit lives and events elude official documentation which, once created, drains these episodes of their transgressive vibrancy. Police records, like those of many other public agencies, attempt to impose order, classification and structure upon unruly eruptions of human behaviour and affect. Criminal records are nevertheless powerful for the fact of their creation in an atmosphere of trauma and disruption. Writing about eighteenth-century French police records, Arlette Farge reflects upon the status of the criminal informant in the moment of documentation: ‘Their words were recorded right after the events transpired, and even if they were strategic at the time, they did not follow from the same mental premeditation as the printed word. People spoke of things that would have remained unsaid if a destabilizing social event had not occurred’.[47] Farge suggests that the criminal archive transforms people into witnesses, and also into authors.[48]

As the rules of evidence persistently remind us, representations are made by ‘makers’; evidence transforms people who experience events into ‘makers’ of representations about those events; indeed, the status of the ‘maker’ is unique in the law of evidence. The maker is the person with personal knowledge, they are the source, first-hand to a fact in issue, theirs is the best evidence. The documents they produce, or the people who witness their representations, become second-hand, or remote, sources of evidence. People who know something and then say something about what they know, become — usually inadvertently or reluctantly — the makers of archival records.

In a contribution entitled ‘Plots and Artefacts: Courts and Criminal Evidence on the Production of True Crime Writing’, Kate Rossmanith narrates her own encounters with criminal evidence and crime archives. As both a cultural scholar and a creative writer, Rossmanith explores the possibilities and limits of writing creatively from legal evidentiary sources. This is her account of being given access to courtrooms, criminal case files and court transcripts, and having to think carefully about the ethics and aesthetics of working with these materials. Recognising the sensitivity of much of this data, she also understands that crime’s cruelty and trauma is the basis for its literary power, demanding careful thought and judgment for a creative non-fiction writer. In her article, Rossmanith describes some of the decisions she made, in which she disclosed or withheld certain information from her readers, and works through the process of balancing literary and dramatic opportunities against the acute pain felt by crime’s participants and victims.

Juliet Darling, in her contribution ‘On Viewing Crime Photographs: The Sleep of Reason’, narrates her own raw encounter with criminal evidence. Following the death of her partner, Nick Waterlow, killed by his adult son, Darling describes the process of preparing to view the crime scene photographs at the morgue. She examines her own feelings about the killing, and about her desire to see the photographic evidence, as well as the efforts of friends and professionals who offer advice and support. Recoiling from the experience of seeing images of violence deployed by artists in their work Darling, on viewing photographs from Nick’s death, discovers the importance of love and empathy in approaching crime’s archive. As an artist, writer and film maker, Darling is well aware of the aesthetic effects of criminal evidence, and of the power of genre and spectacle upon its viewers. Her article argues forcefully for the need for context; for there to be a connection between the image, what it represents, and why it was made and demands that we don’t treat lightly the privilege of accessing the archive.

Thinking archivally

The photographer and theorist Allan Sekula understood archives as both ‘an abstract paradigmatic entity and a concrete institution’; in either instance, he claimed that archives are responsible for the pervading sense of ‘equivalence’ between the stored record and the context from which it emerged. Sven Spieker distinguishes the eighteenth-century archive –such as ‘classificatory tables, empty grids, and abstract schemes for the organization of knowledge’ — from a nineteenth-century institution containing ‘discrete traces (records)’, in which time is ‘contingent’. Spieker claims that scholars visit these institutions because they are interested in ‘time itself. Not history, I hasten to add, but time in flux and ongoing’.[49] These descriptions demonstrate the transition from history to historicity and time to temporality that characterise a contemporary orientation towards the archive.

Critical theorists including Jacques Derrida, Michel Foucault and Jean-François Lyotard turned their attention to the archive and archiving as subjects of inquiry, and as metaphors for memory and forgetting. Detecting this ‘archival impulse’, art theorist Hal Foster identifies artists who have shifted away from a memorialising approach to the past, in favour of a more fragmented and ephemeral past, in which Foster sees ‘new orders of affective association’ , in practices known as ‘counter-memory’, ‘counter monument’ or ‘counter-archive’.[50]

Whilst postmodern scholarship has contributed to changing how archivists have imagined their role, John Ridener detects a far more significant impact from social movements of the 1960s and 1970s.[51] He points to demands for visibility and recognition which emerged from the margins, from groups under-represented in the archive and therefore from history. These histories demanded new kinds of research, but also inaugurated new forms of record-keeping. As well as broadening the categories of records that are retained, archivists face new challenges in the nature of ‘records’ themselves. Whilst digital files, emails and Tweets need new forms of storage and description, so too do skateboards, zines, performances and stickers.[52] These forms have prompted the archivist Brien Brothman to call for a ‘poetics’ of archiving, reflecting the growing difficulty of distinguishing information, administration and cultural production.[53]

As Ridener identifies, during the 1970-80s, feminists and gay and lesbian activists concerned to ensure documentation of their political struggles generally excluded from official histories, established private and community-based archival collections. Kate Eichhorn argues that feminist interest in archives has a direct relationship to perceptions of the temporality of its own political movements and that it undergoes resurgence at times when feminist activism appears to have been in decline.[54] She points out that archival activism, that is, interest in previous generations’ political activities, has served as a spurn for political mobilisation in the present and for the future.[55] Eichhorn suggests that archival work opens up possibilities of being in time and history differently, serving to legitimise new forms of knowledge and cultural production, thereby resisting notions of teleological progressive history. The notion of queer time, she suggests, can work to undermine the constraints of temporal logics.[56]

Similarly, in her work on the development of lesbian public cultures in the United States, Ann Cvetkovich uses queer theory as a methodology for analysis of the importance of affect, specifically trauma, to understanding the place of the archive in the formation of public cultures.[57] Rather than inert collections of documents, she argues that cultural texts are repositories of feelings and emotions, coded not just in their content but also in the practices that are employed in their production, reception and ultimately in their archival collection. In this way, cultural texts are viewed as ‘archives of feelings’ where the traces of marginalised communities are materialised, often in unconventional forms such as ephemera, experimental literary and performance genres and low-budget audio and video recordings.[58] Cvetkovich argues that lesbian and gay history demands ‘a radical archive of emotion in order to document intimacy, sexuality, love, and activism — all areas of experience that are difficult to chronicle through the materials of a traditional archive’.[59]

However, concerns about the fragile impermanence of archival sources held in private collections is also giving rise to ethical questions about what is considered private and what should be kept for public record.[60] As Margaret Henderson points out, when dealing with the personal papers of feminist activists, the distinction between public and private is difficult to establish.[61] As she asks: ‘who controls the narrative of self enabled by the archive?’[62] This negotiation is more difficult if the research is conducted posthumously. The private papers of public figures, such as writers, may include records of friendship, love, romance and sexuality, and therefore may raise ethical questions about the boundary between private life and public scrutiny. These distinctions are not easily established, because they are subject to constant recalibration, particularly as sensibilities of privacy are increasingly eroded by new technologies and means of communication.[63]

In the contribution by Rosanne Kennedy, ‘Affecting Evidence: Edith Thompson’s Epistolary Archive’, a series of love letters acquired legally probative force when their author and the recipient were both charged with murder. Edith Thompson and Freddy Bywaters were private individuals until they fell under the public glare of infamy, and their personal correspondence was tendered into evidence in a notorious trial conducted in 1922 in London. Using an approach which draws on Cvetkovich’s notion of an archive of feelings to an analysis of the evidence from the trial, Kennedy examines the letters as melodrama and intimacy. She argues that the ‘epistolary’ form functions as a way of archiving emotion, with desire, fantasy and uncertainty simultaneously heightening the effect of the letters for a reading public, whilst also undermining their reliability in law. Kennedy aims to contribute to feminist critical legal scholarship, and to do so in a manner that situates emotions at the centre, driving the legal processes and media reportage that respond to crimes of passion. That law provokes emotions is well known; Kennedy’s contribution advances the idea that we might conceive of these collections of feelings archivally.

Legal archives, including court transcripts, are also being used by feminists to create verbatim theatre, motivated by a desire for authenticity and truth-telling, such as in transitional justice contexts. By using authentic testimony as a source for artistic work, verbatim theatre draws attention to the passage of time and the way history is constructed from narratives. In her contribution ‘But I want to speak out: Making Art from Women’s Testimonies’, Olivera Simic provides an account of a new wave of documentary theatre in the Balkans which uses authentic testimonies from archival sources collected in private hearings and courts. She discusses plays created by feminist theatre directors from Bosnia-Herzegovina, Kosovo and Serbia which use women’s testimonies about war and violence that cross regional and ethnic lines. Here, the performances act as local strategies for intervention and truth-seeking, while at the same time, facilitating audiences to bear witness as part of a process of symbolic reconciliation and reparation.

Legal archives might also produce other performative effects. Heather Roberts, in her contribution, ‘Telling a History of Australian Women Judges through Courts’ Ceremonial Archives’, draws on courts’ public records to demonstrate the value of this archive for (re)telling the history of Australian women lawyers. Drawing on the archives of the High Court, Federal Court and Family Court between 1993 and 2013, she employs a performative notion of law to read the judicial swearing-in ceremonies as a vital component in the construction of judicial identity and authority. Roberts highlights the way legal convention usually excludes from the record evidence of judicial subjectivity; judicial swearing-in ceremonies are an exception to this norm. Her contribution suggests that the increasing presence of women on the bench has signalled a shift in the performance of the event and in the content of the court archive.

The contributions to the special issue of The Australian Feminist Law Journal demonstrate the rich scholarship, and potential, in thinking about evidence and the archive. By treating legal sources as a literal archive, contributors have engaged with questions about access, use and interpretation of archival materials. They have focused closely on aspects of evidence, sources, records, documents and data, to investigate legal materials in all of their complexity and diversity. In doing so, contributors have brought into legal scholarship some of the contemporary theoretical approaches to thinking archivally, in which processes of questioning, abstracting, and counter-archival imaginings are evident. Contributors have also turned their inquiry towards the ethical, aesthetic and emotional aspects of archives, and the demands that law’s materials make upon scholars to exercise care and judgment. Our aspiration for this special issue is that it inaugurates ongoing inquiry into the stakes, risks and opportunities in exploring law’s archive and re-examining law’s evidence.


[*] Katherine Biber, Associate Professor, Faculty of Law, University of Technology Sydney. Email: katherine.biber@uts.edu.au; Trish Luker, UTS Chancellor’s Postdoctoral Research Fellow, Faculty of Law, University of Technology Sydney. Email: trish.luker@uts.edu.au. Thanks to Judith Grbich, Karen Crawley, Joanne Stagg-Taylor, Isabel Karpin, David Ellison, Ondine Karpinellison, Zach Karpinellison, the anonymous referees and contributors to this special issue.
[1] Moser Benjamin ‘In the Sontag Archives’ (2014) The New Yorker blog 30 January 2014 available at http://www.newyorker.com/online/blogs/books/2014/01/in-the-sontag-archives.html?printable=true&currentPage=all
[2] Susan Sontag papers (Collection Number 612) Department of Special Collections: Charles E Young Research Library: University of California Los Angeles. Juvenalia (ca 1939) Box 295 Folders 1 and 2.
[3] As above Junior High School (ca 1943-45) Box 146 Folders 10 and 11; High School (1947-49) Box 117 Folder 4 and Box 146 Folder 12; Undergraduate (1949-51) Box 146 Folders 13, 14, 15 and Box 147 Folders 1-5; Graduate (1953-57) Box 147 Folders 6-11 and Box 148 Folders 1-8 and Box 149 Folders 1- 8 and Box 150 Folders1-8 and Box 151 Folders 1-9 and Box 152 Folders 1-8.
[4] Books from the Library of Susan Sontag (Collection Number 892) Department of Special Collections: Charles E Young Research Library: University of California Los Angeles.
[5] See ‘Processing History’ in Finding Aid for the Susan Sontag papers (ca 1939-2004) available at http://www.oac.cdlib.org/findaid/ark:/13030/kt2489n7qw/admin/#did-1.2.1
[6] Moser above n 1.
[7] As above.
[8] As above.
[9] Above n 2 at Boxes 136 and 137.
[10] Jackson Bruce Pictures from a Drawer: Prison and the Art of Portraiture Temple University Press Philadelphia 2009.
[11] As above at 19.
[12] Biber Katherine ‘Review Essay: Wanted: The Outlaw in American Visual Culture; Capturing the Criminal Image: From Mug Shot to Surveillance Society; Pictures from a Drawer: Prison and the Art of Portraiture’ (2011) 35(4) History of Photography 439 at 441.
[13] Bond Henry Lacan at the Scene The MIT Press Cambridge MA & London 2009
[14] Biber Katherine ‘In Crime’s Archive: The Cultural Afterlife of Criminal Evidence’ (2013) 53(6) British Journal of Criminology 1033 at 1036.
[15] Carrabine Eamonn ‘Seeing Things: Violence, voyeurism and the camera’ (2014) 18(2) Theoretical Criminology 134 at 152.
[16] Jones William E Tearoom 2nd Cannons Publications Los Angeles 2008.
[17] See Biber Katherine & Dalton Derek ‘Making Art from Evidence: Secret sex and police surveillance in the Tearoom’ (2009) 5(3) Crime Media Culture 243.
[18] Howe Adrian ‘Writing to Lindy – “May I call you Lindy?”’ in Staines Deborah, Arrow Michelle and Biber Katherine (eds) The Chamberlain Case: Nation, Law, Memory Australian Scholarly Publishing North Melbourne 2009 p 221 at 223; Staines Deborah ‘Textual Traumata: Letters to Lindy Chamberlain’ (2008) 5(1) Life Writing 97.
[19] As above at 223.
[20] See Papers of Lindy Chamberlain (1944-2010) National Library of Australia catalogue record at http://catalogue.nla.gov.au/Record/1475359?lookfor=lindy%20chamberlain&offset=6&max=74. Note that a large portion of the Lindy Chamberlain papers are not available for research.
[21] Cunningham Adrian ‘Icons, Symbolism and Recordkeeping: The Lindy Chamberlain and Eddie Mabo Papers in the National Library of Australia’ in Staines et al above n 18 at 263.
[22] As above at 264.
[23] As above.
[24] Cited in above at 264.
[25] As above at 265.
[26] Ridener John From Polders to Postmodernism: A Concise History of Archival Theory Litwin Books Duluth MN 2008 at 4.
[27] Burton Antoinette ‘Introduction: Archive Fever, Archive Stories’ in Burton Antoinette (ed) Archive Stories: Facts, Fictions and the Writing of History Duke University Press Durham & London 2005 p 1 at 3.
[28] Merewether Charles ‘Introduction: Art and the Archive’ in Merewether Charles (ed) The Archive Whitechapel Gallery London & The MIT Press Cambridge MA 2006 p 10 at 10.
[29] Spieker Sven The Big Archive: Art from Bureaucracy The MIT Press Cambridge MA & London 2008 at 4-5.
[30] As above at 1.
[31] In Ridener above n 26 at 111.
[32] As above at 124.
[33] Burton above n 27 at 11.
[34] As above at 5.
[35] Spieker Sven Un-knowing, Getting Lost, Linking Points in Space: The New Archival Practice paper presented at Artists & Archives: A Pacific Standard Time Symposium, Getty Research Institute 12 November 2011. Proceedings accessible at http://www.youtube.com/watch?v=NVKTtyr6dBk Part 1 of 3 at around 1.02.00 – 1.05.12.
[36] Shepard C J ‘Court Records as Archival Records’ (Summer 1984) 18 Archivaria 124; Bellis Judith ‘Public Access to Court Records in Australia: An International Comparative Perspective and Some Proposals for Reform’ (2010) 19 Journal of Judicial Administration 197.
[37] Rubenstein Kim ‘Erring on the Side of Destruction? Administrative Law Principles and Disposal Practices under the Archives Act 1983 (Cth)’ (1997) 4 Australian Journal of Administrative Law 78;
Thornton Margaret and Luker Trish ‘The New Racism in Employment Discrimination: Tales from the Global Economy’ (2010) 32: [1953] SydLawRw 1; 1 Sydney Law Review 1 at 5. The Commonwealth and all States and territories have archives or public records legislation which specifies standards and codes of practice for the sentencing and disposal of records for the public service and state instrumentalities.
[38] Brenneis Don ‘Reforming Promise’ in Riles Annelise (ed) Documents: Artifacts of Modern Knowledge The University of Michigan Press Ann Arbor 2006 p 41 at 56 and 65.
[39] Riles Annelise ‘Introduction: In Response’ in Riles as above at 18.
[40] As above at 23.
[41] Stoler Ann Laura ‘Colonial Archives and the Arts of Governance’ (2002) 2 Archival Science 87.
[42] Stoler Ann Laura Along the Archival Grain: Epistemic Anxieties and Colonial Common Sense Princeton University Press Princeton 2009 at 20.
[43] As above at 25.
[44] Russell Lynette ’Indigenous Records and Archives: Mutual Obligations and Building Trust’ (2006) 34:1 Archives and Manuscripts 32.
[45] Williams Loris, Thorpe Kirsten and Wilson Andrew ‘Identity and Access to Government Records: Empowering the Community’ (2006) 34:1 Archives and Manuscripts 9 at 12.
[46] Robertson Stephen ‘What’s Law Got to Do with It? Legal Records and Sexual Histories’ (2005) 14 Journal of the History of Sexuality 161 at 162.
[47] Farge Arlette The Allure of the Archives (Scott-Railton Thomas transl) Yale University Press New Haven & London 2013 at 6.
[48] As above at 7.
[49] Spieker above n 29 at 5-6.
[50] Foster Hal ‘An Archival Impulse’ (2004) 110 October 3.
[51] Ridener above n 26 at 101-142.
[52] For example see The Riot Grrrl Collection at the Fales Library & Special Collections New York University. Description and finding aids accessible at http://www.nyu.edu/library/bobst/research/fales/riotgrrrltest.html
[53] In Ridener above n 26 at 119.
[54] Eichhorn Kate The Archival Turn in Feminism: Outrage in Order Temple University Press Philadelphia 2013.
[55] See also Hildenbrand Suzanne ‘Introduction: Women’s Collections Today’ Women’s Collections: Libraries, Archives, and Consciousness, (1986) 3:3/4 Special Collections 2.
[56] Eichhorn above n 54.
[57] Cvetkovich Ann An Archive of Feeling: Trauma, Sexuality, and Lesbian Public Cultures Duke University Press Durham & London 2003.
[58] See, eg, Lymn Jessie ‘The Zine Anthology as Archive: Archival Genres and Practices’ (2013) 41:1 Archives and Manuscripts 44.
[59] Cvetkovich above n 57 at 241.
[60] Bartlett Alison Dever Maryanne and Henderson Margaret ‘Notes Towards an Archive of Australian Feminist Activism’ (May 2007) 16 Outskirts online journal, available at http://www.outskirts.arts.uwa.edu.au/volumes/volume-16/bartlett.
[61] Henderson Margaret ‘Archiving the Feminist Self: Reflections on the Personal Papers of Merle Thornton’ (2013) 41:2 Archives and Manuscripts 91.
[62] As above at 95.
[63] Dever Maryanne Newman Sally and Vickery Ann The Intimate Archive: Journeys through Private Papers National Library of Australia Canberra 2009 at 2.


AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.austlii.edu.au/au/journals/UTSLRS/2014/3.html