Applying a Usable Past: The Use of History in Law – Matthew J.

Festa

Introduction

- Officers of the law cite historical evidence and make historical arguments
 for sense of authority and legitimacy
 grounds arguments in continuity with tradition and precedent
 law is in large, part about the reconstruction of past events
- Richard Posner: “Law is the most historically oriented, or if you like the most backward-looking, the most ‘past
dependent,’ of the professions”
- Is it possible to make legitimate connections between past events and present controversies?
 history’s salient feature is the uniqueness of past in its own contexts—“pastness of the past”
- Historians and lawyers are engage in a search for the “truth”—an accurate interpretation of past events
 non-historically-trained officers of the law write “law office history”
 neglecting standards of how history is must be written (a neutral approach), to influence what
authors want their readers to empathize with
 write according to their advocacy
 historians (in theory) write objectively and in a neutral tone
- Overlap between law and history
 history is essential to understand the meaning of legal text in constitutions, statutes, and other
lawmaking materials
 common law traditions of legal practice are bound up with interpreting the legal past in the form of our
consideration of precedent
 adversarial litigation system is itself an exercise in historical construction of past events
- When lawyers “do” history, how can we make sure that they do it “right”—or, at least, with some degree of
legitimacy?
 counterproductive—while adherent to historiography, does not really help in the adversarial process
- How, then, do we evaluate historical claims and account for some degree of the professional norms of the
historical profession?
 law of evidence
 helpful way to assess the use of historical evidence in the actual litigation process and in legal
scholarship

History in Legal Interpretation: Its Uses and Its Critics

- History and law both appeal to an authoritative explanation of the past

 historians: authoritative interpretation of the past by properly canvassing and weighting the sources
 lawyers: invoke legal authority to support arguments about how legal issues must be resolved (see:
stare decisis)
- Historical evidence provides historical authority for legal interpretations
 Daniel Farber: “the linkage between past ad present is especially central in law
- General sense of fidelity to original meaning or text, or the inherent authority or influence of tradition
- To an extent, the past is authoritative in the legal system
 law: based on resolving issues presented by past conduct
 litigation: establishing a certain interpretation of past events
- Originalism v. Living Constitution: In the Context of US History
 legal liberalism centers on the concepts of “civic virtue” and “common good” to understand the
Constitution
 constitution + republican ideology = superiority of community-oriented values while invoking
the historical authority of the founding generation
 historians didn’t like this approach—it took historical findings out of historical context, to
“justify” an ideology
 Problem: PRESCRIPTIVISM and NORMATIVISM
 - “the use of history in deciding legal issues cannot be tied to or dismissed as the tactic of those of any one
particular political persuasion”
 arbitrariness of understanding: two people of opposing ideologies will read into the same historical
evidence but will interpret them differently
- Is historical evidence essentially indeterminate when used in legal analysis?
- Critiques of History in Law
 Martin Flaherty: when applying historical arguments to questions of constitutional theory, lawyers tend
to present a watered-down and meagrely-supported version of history
 poorly-supported generalization
 Suzanna Sherry: lawyers should be wary of consulting history to reveal authoritative determinations of
specific legal issues
 “professional historians do not attempt to answer the questions...because they recognize that
history is indeterminate”
 James Hutson: determination of original intent “may be an impossible hermeneutic assignment”
 Judge Posner: skeptical of the practicability of using historical evidence
 rhetorical use: problematic
 normative use: outright rejected
 informational: sceptical but more or less meritorious
 to fill informational gaps when deciding cases based on precedent
- Learning to Live with the Historical Turn
 there is a proper role for historical inquiry in constitutional analysis
 Rebecca Brown: “only by looking at our history...can we hope to gain a sense of what values must be
credited in striking the balance of ordered liberty for our own times”
 Larry Kramer: history is normatively important because constitutional law is essentially “the end product
of historically evolving understandings of the text”
 Jack Rakove: “skepticism about the limits of judicial reasoning does not require a blanknet dismissal of
the possibility that historically grounded approaches...might indeed yield fruitful results”
- Clio in the Courthouse
 Judges opine while using historical evidence as authority for a decision
 on the contrary, dissenting opinion is derived from a “wrongful” interpretation of historical facts
 Should we gatekeep the use of history in law to avoid misuse, or should we recognize the undeniable
appeal of the same and instead try to help lawyers apply history correctly?

Professional Standards, “Jurisdiction,” and Border Patrols

- Maintaining Professional Jurisdictions

 profession has “jurisdiction” over certain areas of skill or knowledge
 Eliot Freidson: a “profession” is characterized by certain traits that combine to allow its members to
“make a living while controlling their own work”
 it engages in specialized work in an established field that involves theoretical knowledge
 it requires a high degree of formal training
 the profession has exclusive jurisdiction over the type of work it performs and over its members
 it has a sheltered position that is protected by the specific credentials required for membership
and by the profession’s exclusive ability to provide both the training and the credentials
 each profession has its own professional “ideology” that involves a devotion to the process and
applications of specific professional standards to the area of expertise it governs
 historians have a “monopoly over providing historical interpretations”
 lawyers use of history is a direct challenge to historians’ control over the matter
 when a court interprets history, its version becomes “official” and (legally) authoritative
 court’s historical interpretation becomes fact
 control over professional jurisdiction is the key to maintaining professional autonomy
 Professor Abbott: academic knowledge is subject to interprofessional rivalry over “intellectual
jurisdiction”
  Sociological approach: the contest for the control over the jurisdiction of historical knowledge provides
a useful analogy for thinking about what may be at stake, or why members of the respective professions
should care
- Translating Standards Across the Disciplinary Divide
 legal scholars tend to assay into other fields without compunction
 applying the standards of one discipline to another
 lawyers consulting history might be required to adopt the historian’s standards of objectivity and
reliability for evaluating primary and secondary sources, weighing historical evidence, making
descriptive inferences, and for attempting to explain historical causation
 Goldsmith and Vermeule: the claim that legal scholarship must be “objectively” correct overlooks the
possibility that, when viewed systematically, the institution of legal scholarship is in fact well equipped
to sort out arguments and reach an approximation of truth
 In other words, while the standards of another discipline (such as history) toward objectivity would in
theory be nice to replicate, in practice legal analyses depend more on the adversarial process
 difference in history and law writing
 historical journals are peer-reviewed and ostensibly objective
 law reviews are famously student-edited, wide-ranging in subject matter and points of view
presented, and more given to debates, to response articles, and symposia to further the
exchange and debate of ideas
 in using history for law, a legal officer must look at different accounts of a certain event in history to
paint a better picture and provide well-rounded context
 We should not completely cede jurisdiction over the application of history to law

Conclusion

- The law of evidence allows us to account for differing professional standards an offers us a workable, if
imperfect, system for responsibly evaluating historical evidence offered by the parties or by expert witnesses
- Best practice of courts would be to use court-appointed historical experts in addition to—but not to the
exclusion of—those proffered by the parties
- lawyers and judges (as well as legal scholars) who give due attention to historians’ methods will have a
substantial advantage in offering, countering, analyzing, or evaluating historical evidence
- If we invite historians to “scold the law scholars for doing law-office history, for ‘getting it wrong,’ ironing out
context and discontinuity to muster the past into present service, we will end up with better and more accurate
history in the law