As part of Opinio Juris’ insta-symposium on the Boumediene Case, University of Virigina Professor of History Paul Halliday has submitted an intriguing essay on the uses of history and analogy. Halliday, who researches "how law accommodates new political ideas and social practices," critiques some of the analytical logic in the case:
Chief Justice Roberts is right: Guantanamo is “unique.” [p2] But can that which is unique be analogized? If not, why work by analogy? Yet this is what the justices have generally sought in the past. They ask, what case can I find that looks like today’s? Simple answer? None. To ask this question of the past is to seek what is not there: the present. Approaching the past this way means missing the chance to develop the kind of historical analysis that might help us think our way into the problems we confront today.
In the past, I’ve had to work against my own outsider’s prejudice that legal research and analysis is rigid and mechanical, less open to conceptual innovation than are other fields and disciplines of inquiry. That’s not entirely fair, but as Halliday points out, there are law-relevant issues that can be fruitfully dealt with through alternative scholarly lenses and approaches. Conversely, historians and historical practice have also been unfairly criticized – for being deficient in theoretical grounding, unable or unwilling to extract generalizeables from historical narrative, and getting hung up on the contingency of facts as they’re presently understood. Problems of "uniqueness" are endemic in historical practice (it’s a huge theme in Holocaust and genocide historiography), which isn’t to say they’re overplayed or irrelevant – as Halliday rightfully suggests.
Halliday’s essay is particularly interesting for some of the historical data he’s excavated on jurisdictional exceptionalism:
Even with over 11,000 people using habeas corpus in the 300 years before 1789, no case can provide the strict analogy the justices seek. That said, many come close: “prisoners at war” in the 1690s; Frenchmen and Indians in Bengal; writs used across centuries in a host of “jurisdictionally quirky” [Roberts, p28] settings from Berwick to both Bostons, and in Barbados and beyond. So what? Looking for a case is to overlook how serious historical explanation might better inform contemporary legal thinking.
This is what really got my attention. With everyone thinking of insurgent sanctuaries as territorially contiguous rear bases and terrorist havens as inaccessible mountain warrens or training camps in Waziristan, legal scholars have been exploring the broader problem set of refuge, safety, and sovereignty – from political questions of jus ad bellum to strategic and tactical application of jus in bello. This is a rich field of current thought, and it far outstrips anything available in other disciplinary literatures. The guerrilla model has primacy right now, as it should; the immediacy of security threats requires that it be so. But for holistic treatments of the problem, the sort that attempt to understand the history of the concept and they way it informs contemporary thought and practice, legal and law-oriented research is leading edge.
Historical practice as pattern recognition:
What we find in thousands of cases across thousands of miles are patterns revealing principles about habeas corpus. Recovering such principles through historical analysis provides us with ways of thinking not only about the past, but about our present, ways that may surprise and help us—regardless of our partisan or jurisprudential commitments—because they bring us into our questions from unanticipated points of entry.
Consider three principles Justice Kennedy identifies out of the past:
1) habeas corpus rests on a theory of power, not a theory of liberty [p10],
2) it was “an adaptable remedy” [p50],
3) by which “liberty and security can be reconciled.” [p70]That habeas rests on monarchical power, not proto-liberal ideas, may sound disturbing. But ideas about the prerogative, taken up by royal justices around 1600, built the legal refuge to which later ideas about liberty could resort for safety. A prerogative writ made a legal unity of otherwise quirky places. Place was not the point in habeas litigation. People were: the king, his officers, and their accountability to the king, through his justices, for their detention of his subjects, both “natural” and “local.”
There’s more, and I don’t do justice to Halliday’s specific work on habeus corpus or the full essence of his piece, which gets into important points on the adaptability of law and reconciliation of liberty and security. I thought it was important to point out Halliday’s distinction between place and person, especially after this week in the news.
In practice, we’ve seen the problems that come up when trying to decipher militant network architectures absent sufficient geolocational data. Places can exist in the absence of people. But people don’t exist in the absence of place. Everyone’s located somewhere, and that somewhere is always, always a physical space. The wrong people can, all too often, find themselves in the wrong place at the wrong time. Our challenge is pinning the right people, the one’s we’re looking for – whether it’s bin Laden himself or fugitive Balkans war crimes suspects – to the right location at an exploitable moment in time.
MICHAEL A. INNES 