11th April 2021
On a superficial level, the disciplines of law and history have a good deal in common.
Both subjects deal primarily with words.
The stuff of history (as opposed to prehistory or archaeology) tends to be written documents – though supplemented with the evidence of other materials.
And the stuff of law also tends to be written instruments and, in litigation, the words of witnesses and lawyers – though supplemented by other forms of evidence.
Neither of these two observations are universal, of course – one can have historical accounts and evidence without any words, and one can have law and litigation without words.
But in the main: words are the thing.
Both subjects also deal with evidence.
For history, this is (ahem) self-evident – and for law, the application of laws and legal instruments will always come down to a given fact situation: did [x] breach the contract or did [y] damage that artefact.
And both subjects tend to deal with the construction of narratives derived from assessments of evidence.
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But there lies the crucial difference.
While in putting together a historical account, there are no rules of evidence – if a piece of evidence is relevant then it can and should be used.
In contrast, in law and litigation there are rules of evidence – some evidence may be highly relevant, but it cannot be put before a court because it is inadmissible.
And the questions of the evidence which are asked by a historian will be different to that of a lawyer.
A historian may well ask ‘what happened’ – but a judge may ask only for that evidence that is relevant to the elements of the criminal offence or civil wrong that is being tried.
In concrete terms, a judge will not be interested in all sorts of circumstantial and contextual information about, say, a theft or a trespass but may look only at that evidence which goes to whether there was permission by a property owner.
And this is why legal records such as judgments or transcripts from trials are sometimes unexpectedly complicated sources to interrogate and analyse for a historian.
The questions being asked or the problems being solved by a judge or a lawyer are not that of someone committed to free historical inquiry – but instead have an immediate purpose in respect of the elements of the case that need to be proved or otherwise.
Judgments in particular can be misleading to the student of history – especially those that are framed as showing that, of course, one party had a more compelling case than the other.
The truth is that if a case was indeed that one-sided then the claim or action would normally not have needed to go to trial.
But a good historian knows that every document – including a legal document – has its own context, and that it was created (and survived) for a reason – and that reason is usually not for the personal benefit of a historian.
And in that respect, law and history are both good as ways of promoting critical engagement with words and evidence.
It is just that they are not the same, despite their superficial similarity.
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The reason for these reflections is my ongoing attempts to understand and explain practical law and policy by means of critical engagement of written sources.
For example: a good deal of the politics of the last five years in the United Kingdom has been shaped by the structure of Article 50, and by the European Union law on the internal market, and by the Good Friday Agreement.
Such texts have led to all sorts of policy and political contortions and distortions, with things being pushed and pulled in one direction or another just to accord with (perceived) legalities.
A lawyer, however, would never have predicted what happened after 2016 just by looking at the dry, black letter text of Article 50 and other European Union provisions, and by the Good Friday Agreement.
There is a limit to how much one would understand about, say, Brexit or Trump by just looking at legal instruments and transcripts.
But there is, I hope, a valid purpose in doing so.
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Many thanks for this post. I am a lawyer and a modest historian. Your ‘The reason for these reflections is my ongoing attempts to understand and explain practical law and policy by means of critical engagement of written sources’ stuck me: lawyers and historians have to engage also with the unwritten evidence to understand what probably happened. One of the truly impressive examples of this, from a historian, is EP Thompson’s ‘History of the English Working Class’ where he explains so much from largely unwritten sources; or the modern historian’s reading of history from landscape (eg WG Hoskins).
And ‘vs’ when you mean ‘v’: how long before we descend to Donohue vs Stevenson?
Godzilla vs Kong.
This in really interesting David.
I think law is akin to testing an hypothesis, because the parameters of the investigation, and what is to count as relevant, are fixed in advance.
History is more akin to match-making or perhaps writing a novel. Facts do come into it but there is so much – perhaps mostly – sympathetically imagined context.
I attended a seminar on the philosophy of my late prof, Peter Winch, in the 1980s. Talking at lunch, it was intesting how astray the specialist academics were on key points – because they were reliant on his published work and hadn’t known him personally.
None of them had any idea why Simone Weil was so central in his work (it was because she had independently come to the same ideas as Wittgenstein on concept formation); and one was convinced that Winch hated Wittgenstein’s student, Norman Malcolm, because they disagreed vigorously in published works. But actually Winch adored Malcolm – they were both teaching at King’s when I was there, and Winch used to go puppy-eyed when Malcom spoke and was clearly very fond of him.
This seminar was just 11 years after Winch’s death!
I have a totally different view from yours. Surely the most significant difference between history (perhaps the word should be historiography, ie the study of history) and law (the study of which is jurisprudence) is that the former is, if not strictly scientific (although historians may use scientific techniques, as in palaeography or archaeology) then at least purely empirical, ie aiming to describe the universe as it is (or rather was). In contrast, study of the law surely has ultimately a practical objective, which is the determination of guilt or innocence, responsibility or otherwise, and punishment or other penalty, or alternatively the award of damages, if considered appropriate. History is descriptive, put simply, whereas law is prescriptive!
Whilst five of Kipling’s six honest serving men: clear evidence of “what, when, who, where and how” are important to both disciplines, it is the “why” that enervates the historian.
“Enervates”? Surely “animates”?
or “energises”
Indeed. Sunday, Sunday. Though an historian of Brexit is more likely to be enervated than animated…
enervate
verb
3rd person present: enervates
/ˈɛnəveɪt/
make (someone) feel drained of energy or vitality.
“the heat enervated us all”
Sometimes hard to separate the disciplines. For instance, much (most?) of the argument in defamation case brought by David Irving against Deborah Lipstadt and Penguin Books was about the history. And maybe this was not a good thing.
The logic of the European Union law on the internal market, with the Good Friday Agreement, seems to contradict the unity of the United Kingdom, unless one considers that, if there has to be an adjustment, customs and regulatory checks between the Irish Republic and the Continent of Europe would be more convenient for all three parties that attempting to check the very short passages from the island of Ireland to Great Britain. Also, smuggling on the longer passage would be far more difficult – and easier to police.
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Why should Ireland compromise its internal arrangements with the rest of the EU to facilitate a British decision? You do realise that other countries are entitled to sovereignty too?
I wouldn’t wish to embarrass sovereignty but the alternatives seem to be a smuggler’s free-for-all or tanks on both sides of a land border,
“the alternatives seem to be a smuggler’s free-for-all or tanks on both sides of a land border”
You appear to be ignoring the option of continuing with the current Protocol. As DAG has made clear, the GFA itself “contradicts the unity of the United Kingdom” (to use your earlier phrasing) or at least renders that unity impure. The NI protocol is merely the application of the GFA to Brexit.
Weary Old Man, your suggestion would amount to a partial re-annexation of the Irish republic, bringing it back into the United Kingdom’s Single Market and Customs Union.
But taking your idea to its logical conclusion, then – unless you are also proposing *disenfranchising* the Irish population as well as *subjugating* them – there would also have to be a poll of Irish voters to see whether they think that the newly-formed UK/Irish Single Market/Customs Union should leave, or remain within, the EU’s SM/CU.
And since the 5 million-strong Irish population are overwhelmingly pro-European, that would have the net effect – when the result is aggregated with the 2016 Brexit referendum – of reversing Brexit.
So yes, perhaps there is something in your idea!
The whole Island might become a Freeport perhaps?
I beg to differ. Law and Policy over the last 5 years has been about more than ‘words’, at least words as they are written down. Your recent post on the retainers losing the referendum largely came down to arrogance and not being alert to the mood of the country. The arguments over economics and Northern Ireland were largely dismissed in favour of a little englander insularity. The only words that might have had a bearing on the outcome were Corbyn’s 7 to 7 and a half – his inability to get behind remaining.
In time it will be the social scientists and psychologists who will have more to say about what happened, and crucially why. The historians will be feeding on their thoughts just as much as on the Barnier’s elegant tweets.
A vast difference perhaps is that the law will normally come to a definite conclusion, which is probably correct or close to it (albeit that there may be dissenting views in some cases). History on the other hand tends to be written by one or other party with a definitive view on the subject from their own perspective, particularly if the one party was the victor in the case of a war, e.g. was Bomber Harris’s firebombing of Hamburg, where some 20 000 died, or for that matter the American bombing of Hiroshima and Nagasaki and where civilians mostly died, war crimes or not? A difficult one!
Another example from the Anglo-Boer War of 1899-1902, where vast number of mainly Boer women and children died in British Concentration camps due to lack of lack of proper sanitation in the camps, malnutrition and disease. One perspective (as I was taught as a child) is that they were unclean people and hence they caught diseases and died, while from a Boer perspective the British were uncaring and looked after their own first and treated the inhabitants extremely poorly eventually leading to great bitterness after the war. To those in the UK unfamiliar with this now relatively ancient history reading up on Emily Hobhouse https://en.wikipedia.org/wiki/Emily_Hobhouse will give some idea.
Unfortunately the ‘law’ at least the judgement is often not correct hence miscarriages of justice and the threat a return of the death sentence would bring.
When the Supreme Court decided 11-0 on the unlawfulness of the prorogation of Parliament, the effect was for it to be irrelevant. Where did that get us?