General Introduction
(1)
FWO Fellow at Ghent University, Ghent, Belgium
Abstract
In this general introduction to the book I lay out the three-part structure of my research of historians serving as expert judicial witnesses in tobacco litigation. The first part introduces the concept of Clio’s Modern Paradox and the issues it implies for historians in court. The second part gives a general introduction to forensic history. By discussing several European and American examples I revaluate the term forensic history as conceived by Alain Wijffels. In the third part of the book I present the results of my research on the involvement of historians in tobacco litigation in the United States of America.
We are like dwarves standing on the shoulders of giants. We see more and farther than our predecessors, not because of the acuteness of our sight or the stature of our body, but because we are carried aloft and elevated by the magnitude of giants.
Bernard de Chartres
The title of this book indicates an ambitious project: I will make a historical inquiry into the controversial legal practice wherein historians testify as expert witnesses in court. The book has been constructed in three parts in order to deliver respectively a theoretical framework, a comparative overview of European and American litigation, and a systematical analysis of the historian as an expert witness in tobacco-related court cases in the United States of America. The first part constructs a theoretical framework of the relationship between history and law as a basic background for the other two parts of this book. The second part discusses the European and American experience of expert witnessing. The third and final part aims to give an overview of the involvement of historians in tobacco-related litigation, through a systematic analysis based on a qualitative as well as a quantitative approach. My research also aims to discuss and present the courtroom as a performative and fact-making theatre. As a conclusion, I redefine the forensification of history.
History and law go back a long way. While on the one hand, the disciplines of history and law are considered similar, they are on the other hand also considered distinctly different. Furthermore, although the connection between the two exists; it is considered an illicit one by legal scholars as well as historians.1 Despite the fact that both history and law are bound by the past, the practitioners of both professions have their doubts on the similarity and compatibility of the legal and historical disciplines. In fact, the arguments between both disciplines have generally focused on their irreconcilability. This belief in the incompatibility of history and law has come under a lot of pressure in recent decades. Since World War II, historians have increasingly been called into the courtroom to testify.2 During the second half of the twentieth century, historians have served in court as expert witnesses in five main categories of forensic historical practice. (1) Historians have been active in the transnational justice movement, which is based on the legal models by which the tribunals of Nuremberg and Tokyo were organized. (2) Furthermore, historians have appeared as expert witnesses in post-World War II and post-Holocaust trials. (3) The third category in which historians have testified is comprised of Holocaust denial trials. (4) In Commonwealth countries, historians have been called upon to testify in indigenous peoples-related litigation. (5) In addition, historians have testified at an exponential rate in US civil litigation.
Although historians testify in court at an increasing rate, the legal profession has its doubt on their involvement. There are plenty of theories on this incompatibility.3 Legal scholars stress the idea that history is unable to prove and present reliable historical facts. The historical discipline often lacks the ability to defend itself in court against such charges. Furthermore, lawyers succeed at portraying the historical profession as a useless and untrustworthy profession. The ease by which the judge or the jury members often accept these accusations to be true is troublesome. It indicates that the discipline of history has a problem with her public image. The historical profession tends to be viewed as an esoteric activity in an ivory tower or dusty archive, instead of being perceived as an important intellectual study which offers critical reflection on society. This is curious since theoretical historians François Hartog, Reinhart Koselleck, and Berber Bevernage argue that our society is very much concerned with the past; and with amending the historical wrongs of haunting pasts.4 Not only is our society concerned with the past in order to remediate historical wrongs, but our society is also orientated towards the past in a lot of cultural events, such as remembrance initiatives, in the construction of national identities, in heritage related issues, through a rising number and increasing popularity of historical museums, and much more.5