Introductory Theoretical Remarks on the Alleged Problematic Nature of the Interaction of History and Law

In the first part of this book I discuss the theoretical issues that have burdened historians and history in the courtroom. Litigation often encompasses more than only the historical facts and events relevant to the case addressed in the courtroom. Social credibility and legitimacy of the historical craft influences how the testimony of the expert historian is valued in court and determines the impact it has on the judge or the jury. As American historian Richard Golsan points out during his discussion of two French Vichy-related trials wherein historians were involved as expert witnesses; “History itself, with a capital “H”, was, effectively, put on trial.”¹ Why is it that historians serving as expert witnesses in court, not only have to defend their own research and credentials, but also the validity of their discipline? Why have lawyers often succeeded in convincing the judge or the jury that history and historians are not bringing anything valuable to the courtroom to aid the trier of fact?

I begin this first part of the book with an inquiry into the reasons why history is vulnerable to theoretical and epistemological attacks on its constitution as an autonomous field of knowledge. In order to research this, I present a minor overview of theoretical history² since the nineteenth century in which I discuss three major developments which have contributed to the theoretical weakness of historians and their research in court: (1) The first reason is the unattainable but still influential traditional interpretation of Ranke’s adage on objectivity.³ (2) Secondly, I argue that theoretical history has failed to rebut postmodern relativism.⁴ (3) The third and final reason is my claim that the historical profession suffers from a lack of theoretical conceptualization.⁵ When historians are questioned about the epistemological basis of their profession in court, lawyers are merely repeating the general sentiment in society towards the historical craft, namely that there is little social appreciation for the historical discipline.⁶ I claim that this is rather paradoxical, since our society is very concerned with the past.⁷ Intriguingly, the past itself is very popular, whereas the historical discipline and historians themselves are not popular. This negative relation between the past and the historical discipline is what I call Clio’s Modern Paradox.

Law and all legal institutions have an increasingly important role to play in our democratic and litigious society as well as in our daily lives.⁸ Judge Posner wrote in his introduction of Law and Literature that: “Law so permeates American life that all of us should take an interest in it.”⁹ Social norms and other non-legal regulation have been gradually displaced by legal regulation.¹⁰ Laws are based on the social norms they replace, most of which are of a historical nature.¹¹ How has the study of law convinced the general public that law can generate truthful knowledge and therefore is at liberty to judge them? Which developments have contributed to the fact that law has become so important in society, while the historical discipline has slowly disappeared into a peripheral social role? This dichotomy is very interesting, since history and law fundamentally share the same object of study: human conduct and the irregularity bound to it.¹² The relationship between law and history has, moreover, always been a close one. The Italian historian Carlo Ginzburg called the relationship of history and law intricate and yet ambiguous.¹³ American historian Richard Wilson wrote that “[l]aw and history are inextricably linked and share similar methods and aims.”¹⁴ If both studies are so alike, why are expert historians treated with such hostility in the courtroom by the legal profession. In order to find the answer(s) to this question, I retrace the developments that shaped Clio’s Modern Paradox.

Theory has not been central to studies of historians as expert witnesses in court. Most literature on the subject does not offer a theoretical frame on the issues that arise with historians serving as experts. Ignorance has been the foremost reason for the opposition with which history is met by the legal profession in court. In order to diminish these prejudices amongst historians and lawyers alike, I draw from an interdisciplinary body of works from noted historians and legal scholars to offer a heterogeneous overview on the topic. In general, I use the works written by the famous Italian historian Carlo Ginzburg, who has published on the relationship between law and history in: History, Rhetoric, and Proof