FWO Fellow at Ghent University, Ghent, Belgium
In this second part of the book, I examine the interactions between history and law that have spurred Belgian legal historian Alain Wijffels to coin the term forensic history. Wijffels concentrated the conclusions of his work History in Court on post-Holocaust trials and Holocaust denial trials (Wijffels, Alain. 2001. History in Court: Historical Expertise and Methods in a Forensic Context. Leiden: Ius Deco). These brought him to a rather negative conclusion on the involvement of historians in the courtroom. In order to reassess Wijffels’ term, I will compare the examples he discussed with examples from American litigation-driven history.
There is a higher court than courts of justice, and that is the court of conscience. It supersedes all other courts.
The first chapter of this second part of the book gives an overview of examples of interactions between law and history which are often considered to be examples of expert witnessing. Yet, as we shall see, not every time historians are involved in legal proceedings are they functioning as expert witnesses. For example, historians who work as legal consultants have a different role from expert witnesses. Historians who are involved in judicial procedures because of their skills in paleography represent another separate distinction. The unique element that defines expert witnessing is that the expert is allowed to give an opinion based on his factual historical research. The Dreyfus affair, the Nuremberg and Tokyo tribunals, and Amicus Curiae briefs are all important examples of interactions between law and history that are often wrongfully categorized as expert witnessing. These interactions are different but they are certainly related to expert witnessing. Many problems that come up when historians testify in court are also perceived in other interdisciplinary engagements between both disciplines. Due to the influence those similar problems and previous interactions have had on the reception of expert witnessing by the legal and historical profession, I have chosen to examine them here in the first chapter. By doing so, I am able to present clearer boundaries of what the expert witness does in court.