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.
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.
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.
Thank you for reading this post on this daily law and policy blog.
If you value this free-to-read post, and the independent legal and policy commentary this blog and my Twitter feed provides for both you and others – please do support through the Paypal box above, or become a Patreon subscriber.
You can also subscribe for each post to be sent by email at the subscription box above (on an internet browser) or on a pulldown list (on mobile).
This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.
Comments are welcome, but they are pre-moderated.
Comments will not be published if irksome.