Common cause for lawyers and historians

What business do lawyers, legislators and the law have meddling with history? I ask the question because ‘practising’ and controlling history are activities that lawyers and law-makers fairly regularly get caught up in.

At the harmless, or at least useful, end of this are the lawyers who have turned their hand to writing history. Lord Sumption has a sideline writing at length about the Hundred Years War, and barrister Richard Dale’s Who Killed Sir Walter Ralegh? sits among good contributions to history made by lawyers.

I recently reviewed Geoffrey Robertson QC’s Stephen Ward was Innocent: OK? where his deep understanding of the legal system usefully added to our understanding of the ‘how’ and ‘why’ of an episode that had been well picked over by journalist and historian minds.

A job-lot of history was on show in the 2000 libel action brought by ‘independent historian’ and alleged ‘holocaust denier’ David Irving when he took academic Deborah Lipstadt and Penguin books to court for libel, over arguments made in the book Denying the Holocaust: The Growing Assault on Truth and Memory. It felt like ‘history was on trial’ as one commentator put it. Irving lost, and in 2006 was in court again in Austria – jailed for holocaust denial, a criminal offence there.

A US court was all over history again in 2012, ordering Boston College to hand over interviews conducted for an oral history project with a convicted IRA terrorist. The order pretty much ruined future attempts to achieve the preservation of evidence concerning politics, violence and power for future considered study (Law 1: History 0).

And in the Great War centenary year we have the spectacle of legislators squaring up across the dispatch boxes to argue over history – the teaching of which they are, to a degree, in a position to direct. Education secretary Michael Gove MP, a history graduate, versus shadow education secretary Tristam Hunt MP, a history academic.  

Should Gove use a legislator’s power to stop children growing up thinking the Field Marshal Haig was an unfeeling idiot? ‘The Richard Curtis Law’, we might dub it.

Viewed like this, the law/history crossover starts to feel pretty high stakes. And goodness knows, tempers run high enough in debate among historians without the fear of a sort of knock on the door. It is fairly transparent as to why – the past is a powerful agent for informing public policy and forming our laws.

Its importance, in fact, should put the dividing line between legislators on one side, and lawyers and historians firmly on the other.

The historian, though inevitably a subjective being, begins by trying to treat the past as ‘dead’ – isolating it from today’s agendas to ascertain ‘wie es eigentlich gewesen’ (Von Ranke’s phrase, roughly ‘how it really was’) – in so far as one can through partial evidence, witnesses of variable reliability and with the help of other experts.

A court, and lawyers as officers of the court, do the same. And the mindset of a lawyer working on a piece of due diligence, or even conveyancing an awkward property, should also be doing the same.

For lawyers and historians this is an approach that is fairly antipathetic to the sort of political point-scoring that needs the past to, alternately, vindicate or discredit the ruling classes, or give succour to champions of history’s downtrodden masses.

Our politicians will always use and abuse the past in this way, and take a similar approach to the ‘figures’ and ‘findings’ of current research in any number of areas.

No one’s going to stop that. But historians and lawyers should number among those who make it just a little harder for law-makers to do so.

Eduardo Reyes is Gazette features editor