Month: September 2019

A Mixture Containing More Snares Than Rewards

~ Michael A. Innes

In 1994, the legal scholar John Phillip Reid published a somewhat cynical article on forensic history in the Loyola of Los Angeles Law Review.  It contains some real zingers on the intersection between law and history, how practitioners of each perpetrate mutually abusive disciplinary transgressions, and the meaning (and substance) of forensic history. Here are some bits and pieces, for flavour. These are by no means representative of Reid’s entire argument – you’ll have to read the article yourself for that.

From the introduction (p. 193):

A venture into cross-disciplinary legal studies may be a mark of scholarly sophistication for the law academic, but it does not do to assume the benefits without understanding the risks. Serious problems result from the crossing of disciplines. Take the crossing of history with law: It is a mixture containing more snares than rewards, as it risks confusing rules of evidence basic to one profession with canons of proof sacrosanct to another.

On implied similarities of method:  (p. 193-194):

The implication – one that is shared by lawyers perhaps even more than by historians – is that there is a similarity between the methodology of law and the methodology of history…  the argument goes much further than process. It is not just techniques or procedure that the two disciplines have in common; they share substance as well. Certainly there have been times when first-year law students thought so.

On the difference between what lawyers and historians do (p. 196):

The lawyer and the historian have in common the fact that they go to the past for evidence, but there the similarity largely ends. Some historians, such as Kelly, believe that common-law methodology requires the lawyer to play “the role of historian” and to go “to the ‘primary sources.’ For such historians, Maitland warned there is a temptation “to mix up two different logics, the logic of authority, and the logic of evidence.” The differences in the logics are the differences that Kelly missed. They are so basic that they make the ways that the two professions interpret the past almost incompatible. In discovering the past, the historian weighs every bit of evidence that comes to hand. The lawyer, by contrast, is after the single authority that will settle the case at bar.

On “lawyer’s law office history” (p. 197):

The way that lawyers think about history is an eccentricity foisted on them by their professional training and, although it may amuse historians who stumble over lawyering anachronisms,  it is not a matter of controversy among lawyers. What has been controversial is the way that lawyers argue and use history. Critics of their methodology have coined terms to describe it. They call it lawyer’s history or law office history. Lawyer’s history and law office history are really the same despite the variety of definitions they have been given. Lawyer’s history has been called “a stark, crabbed, oversimplified picture of the past, developed largely to plead a case,” and law office history has been described as “the selection of data favorable to the position being advanced without regard to or concern for contradictory data or proper evaluation of the relevance of the data proffered.” 18 “The ‘law office historian,'” one critic has argued, “imbued with the adversary ethic, selectively recounts facts, emphasizing data that supports the recorder’s own prepossessions and minimizing significant facts that complicate or conflict with that bias.”

On “forensic history” (p. 203):

Historians understand that criticism of law office history is criticism of forensic advocacy; that lawyers practicing lawyer’s history use it as advocates; that the complaint is that they are too much the lawyer and not enough the historian. Historians know lawyers are beyond reformation, but wish judges would adopt a more acceptable standard.

On judicial abuse of history (p. 204):

Although their opinions may often be confused, the judges generally are not. When they tell their law clerks  to find them some “history” supporting a point of law they plan to promulgate, their interest lies in authority, not in evidence. This use of history is not to learn about the past, but merely to support an outcome. Law office history does not lead the judge to a decision. In almost every instance when history is employed, the decision has already been formulated. Unprofessional history is used to explain the decision, to make the decision more palatable, or, in most cases, to justify the decision.

Again, on “forensic history” (p. 205):

According to the academic canons of the historical method, there is no need to consider instances of the proper use of history either to prove a fact” or to establish a point of law – if such instances can be found. Instead, attention should be given to a species of history that does not meet the canons of historians’ history, but for centuries has made legitimate contributions to Anglo-American law, especially to Anglo-American constitutional law. It is forensic history.

A way forward? (p. 220):

The legitimacy of forensic history cannot be left to the professional standards of academic historians. A different measure is needed, one turning on the restraint historical adjudication clamps on judicial discretion. Our problem is to separate history used to screen a judge’s activism from history that fixes the limits of decision. Perhaps the distinction cannot be tested, but at this stage of our knowledge we cannot be sure.

From John Phillip Reid, “Law and History,” Loyola of Los Angeles Law Review 27 (1993-1994): 193-223. URL: https://heinonline.org/HOL/P?h=hein.journals/lla27&i=229.

If you can keep your head when all about you are losing theirs and blaming it on you

~ Michael A. Innes

Context is everything. As Maya Jasanoff, the Harvard historian, asks, in lyrical terms: “If a writer harbored bias, shall we never speak his name? Or when he wrote with insight, might we read him all the same?” The questions appear in her review in The New Republic, of Christopher Benfey‘s If:  The Untold Story of Kipling’s American Years. Benfey, a literary scholar, has sought to explain Kipling and “If” in the context of his decade-long American sojourn between 1889 and 1899.  Kipling’s famous poem is worth this kind of study because of its contemporary prominence. As Benfey’s back cover blurb frames it, in slightly limp terms:

… in recent decades Kipling’s reputation has suffered a strange eclipse. Though his body of work still looms large, and his monumental poem “If—” is quoted and referenced by politicians, athletes, and ordinary readers alike, his unabashed imperialist views have come under increased scrutiny.

That’s putting it mildly.  Jasanoff’s review caught my eye because I happen to teach (and completed a PhD) at the School of Oriental and African Studies in London – a storied institution with its own colonial roots where today the intellectual activism surrounding Britain’s imperial past is a recurring and prominent (if not necessarily consistent or constant) feature of campus life. I also study the use of history and language in political decisions and processes, especially among foreign policy and national security elites, where the lessons of Munich, Korea and Vietnam are routinely invoked to help shape public discourse.

Jasanoff opens with a description of the University of Manchester’s tin-eared attempt in 2018 to publicly celebrate Kipling’s poem, and the student population’s delightfully creative rebuff of the move. Figures like Kipling, and their works, had their day; their contributions, even presented in context,  are now powerfully symbolic political devices, especially at a time when public discussion of decolonizing academia plays such an important part in debates around the content of higher education and equitable acccess to it.

For Benfey and Jasanoff, Kipling’s exposure to crass and brash American ways add a layer of meaning to how Kipling and his imperialism should be understood in their own context.  Benfey’s book, Jasanoff’s review of it, and my comments here, point to context as something that can be eliptically frustrating, a mobius strip of a tautology, endlessly looping back on itself to remind us of  historical details made newly relevant. Benfey, the literary scholar, stalking Kipling. Historian Jasanoff, stalking Benfey. Me, the student of politics, stalking all three.

It’s almost impossible to read any of this, today, without thinking in presentist terms of the unapologetic expressions of bloated (and possibly symbiotic) boorishness that have been emanating from Westminster and Washington.  Benfey’s book includes a listing of Vietnam-era references to “If”. Meanwhile, I’m reminded of the niche interest in Kipling that flared up only a decade ago, as policymakers and soldiers tried to make sense of what they were doing in Afghanistan and Iraq. In 2010, for example, one new war veteran framed his memoir of military life and deadly battles in terms of  “the unforgiving minute“, a phrase lifted straight out of “If“. Others talked and wrote about “arithmetic on the frontier” – another Kipling poem – as they tried to come up with “metrics of success” in Afghanistan – another shade of Vietnam. Maybe context isn’t everything. But it is everywhere.