Author: Michael A. Innes

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.

 

 

Streets Without Joy: A Political History of Sanctuary and War, 1959-2009

~ Michael A. Innes

Blending historical research with policy analysis, Innes investigates the concept of sanctuary in Washington’s understanding of how warfare should be conducted, against conventional and unconventional opponents alike.

Available August 2020. Pre-order:

Continue reading “Streets Without Joy: A Political History of Sanctuary and War, 1959-2009” →

Of which the essence thereafter remains unexamined

~ Michael A. Innes

I’ve been digging into the use of Pearl Harbor analogies in America’s response to the 9-11 attacks – and, because of a curious twist in the political landscape in 2001, I’ve been looking a little more closely at a well known study of the Pearl Harbor attack, Roberta Wohlstetter’s Pearl Harbor: Warning and Decision (Stanford University Press, 1962). Wohlstetter’s book is a classic examination of military intelligence (and its failures). It  also enjoyed a parallel life as a physical prop in certain defense circles, where invoking the lessons of this particular past – military preparedness and managing strategic surprise – was part of a ploy to justify budget increases. Among the reviews of Wohlstetter’s book that appeared after its release, one by Sir Michael Howard, published in 1963, caught my attention. Howard appreciated Wohlstetter’s attention to the historical minutiae of intelligence work, and her use of such detail to attempt an explanation of the American failure to anticipate Pearl Harbor. But he was also cynical about her use of historical method in the service of something other than a Rankean telling-it-like-it-really-was account of past events. It’s a sensitivity of long standing among historians, and goes to the heart of the discipline as a professional practice animated by principles of forensic inquiry. Howard’s opening paragraph gets right to it:

Few professional historians stray into the field of strategic studies, and those who do are not likely to find it congenial. They will be surrounded by men of great ability and quicksilver minds who link events into patterns, reduce the chaos of experience to predictable order, deduce principles, extrapolate trends, and in general toss around the stuff of history with an insouciance which the historian, knowing from his own laborious researches how delicate, complex, and intangible is every one of the historical “events” so cheerfully used as the basis for these theories and predictions, finds it hard to regard as academically reputable or even logically sound. Like the lawyer or the philosopher, he winces at the labels casually slapped onto historical phenomena or human behavior of which the essence thereafter remains unexamined. Faced by terribles simplificateurs whose confident analyses and predictions may easily become the bases for national attitudes and policies, he can only continue, quietly and insistently, to repeat his creed. Every event is for the historian unique, unforeseeable, and indescribable in its full complexity. In some respects it will resemble other events, and out of these resemblances useful patterns may be deduced as intellectual tools. But all these patterns are subjective and hypothetical. Like the psychiatrists’ ink-blobs, they teach us more about our own minds than they do about the ingredients which compose them. To suspend judgment, to refuse to make patterns at all, is not only sterile but destructive of all historical writing. But any patterns made or deductions drawn from events before the record is established as completely as human effort can do it will be worthless as foundations for any form of political, economic, or strategic thought.

Reference: Michael Howard, “Military Intelligence and Surprise Attack: The ‘Lessons’ of Pearl Harbor,” World Politics 15:4 (1963): 701-711.

[Ed.: “ploy” isn’t quite the right word for it – it was no more conspiratorial than any other political agenda.]

An area, call it what you will, of safety

~ Michael A. Innes

Colleagues at Arab Digest have just published an interesting commentary on “Boundaries in the Arab world and their remarkable durability.” It’s not publicly available, but I do hope they’ll release it as a sample for general readers. The piece, authored by Chatham House’s Greg Shapland, ex of the Foreign Office, alludes to one of those issue-areas that bridges the grounded, practical, concrete world of international law, and the often fuzzy realm of historical understanding, collective identity and memory, and  perception and misperception in international politics. My own research looks closely at the political uses of terminology in framing diplomatic disputes and armed conflicts around international and sub-state boundaries, so Greg’s piece resonates quite closely. I don’t have anything substantive to add to it, except to flag a related New York Times commentary, published in the immediate aftermath of the first Gulf War. Not long after the conclusion of US and Allied combat operations, White House spokesman Marlin Fitzwater commented on the plight of Kurdish refugees in Iraq, displaced as a direct consequence of the fighting and long-standing patterns of ethnic persecution. The Washington officialese surrounding territorial management of the issue was typical of such efforts. It was sufficiently surreal and vaporous to attract the attention of the late, inimitable William Safire. He had this to say on the official “dancetalk” surrounding “enclavery zones”, in the 21 April 1991 entry of On Language, his widely-read New York Times column:

FIRST OF ALL, IT’S pronounced EN-clave in English, not ON-clave; if you insist on pronouncing the first syllable in the French way, you should go with a French final syllable, CLAHV. I’d stick to ENclave, just as I lick an ENvelope; only when we use whole French words should we adopt ennui ‘s on-WEE or en route ‘s on ROUTE. The word, most often applied in diplomacy in recent years to suggestions for Palestinian Arab areas within the disputed territories of the West Bank, was thrust upon the world by the need to protect Kurdish refugees from the vengeance of Saddam Hussein. The British Prime Minister, John Major, was the first to call for enclaves within Iraq for the fearful Kurds. But the Bush spokesmen resisted the word: “The Administration backed away from the idea of setting up a Kurdish ‘enclave,’ ” wrote Patrick E. Tyler in The New York Times, “that might later be used as a claim to statehood by Iraq’s Kurdish minority.” Promptly, European leaders started talking more fuzzily about protection zone and safety zone. President Bush’s press secretary, Marlin Fitzwater, said, “The problem was that nobody wants a demarcation that says this is a permanent area or new country… We need an area, call it what you will, of safety.” With no official using a term to describe the place, reporters used “informal safe haven” in their stories; “safe haven” was part of the headline in The Times. Although safe haven is redundant, the words have been linked so long as to become an idiom. Subsequently, sanctuary was evoked, as well as buffer zone. Nobody used mandate, applied by John Maynard Keynes in 1919 to territory assigned to the League of Nations, because that would be too “official.” And nobody (except the Kurds, a distinct people with a thousand-year-old culture) would use Kurdistan because that would imply a separate state. What, then, was this area – inside Iraq, on the Turkish and Iranian borders above the 36th parallel – to be called? Not yet decided. For the time being, it’s “the area” or the “safe-haven territory,” the name kept fuzzy because the nations protecting the refugees do not want to clarify (or complicate) matters by giving an area an identity and national life of its own with a name. The synonymy: enclave is moving toward a meaning of “permanent, delimited area” from its origin in the French verb enclaver, “to enclose.” Sanctuary implies inviolability due to sacredness; when applied to a place rather than an idea, it now often pertains to wildlife, not human beings. Asylum is a state of shelter from persecution, but not a particular area. Haven, from the Old English “harbor,” with a connotation of “refuge” dating to 1200, has the advantage of meaning both a place and a status of protection, with a diplomatically useful overlay of impermanence. Refuge is a 14th-century noun from the Latin refugere, “to flee from,” and the 1908 buffer zone comes from buff, “to sound like a soft body when struck.” Zone is an area usually characterized as a band or a strip. Broadest of all: area, leading to “area, call it what you will, of safety.”

Reference: William Safire, “Dancetalk; Enclavery Zone,” New York Times (28 April 1991). URL: https://www.nytimes.com/1991/04/28/magazine/on-language-dancetalk.html