The Historian And The Lawyer Should Be Friends

[Note: The title of this blog entry is adapted from the song title “The Farmer And The Cowman Should Be Friends,” from the Rodgers & Hammerstein musical “Oklahoma.” The resaons why this title was chosen should be plain upon reading the entry below.]

The historian and the lawyer should be friends. After all, the two professions are experts in what is a nearly uniquely human tendency. We call ourselves Homo Sapiens sapiens as a scientific name, which means “the wise” or “the rational” human, but to be more accurate we should call ourselves “the rationalizing” beings. As far as all of the beings in existence in the universe, only two of them to my knowledge are rationalizing, and human beings leave the most record of their rationalizing. And, it should not come as any surprise that lawyers and historians are two of the most notable when it comes to “casemaking” and rationalizing as far as human professions go. Let us examine why this is so.

At first glance, the historian and the lawyer would not appear to many to have a lot in common. Historians, by and large, are a professorial lot, given either to writing obscure (and learned) books and journal articles. Lawyers are an argumentative lot, very well paid and very charismatic (at least in their own eyes), with precise and ferociously tactical reasoning skills. Despite the large differences in paygrade, though, the two professions share far more than they differ in. This is largely due to the fact that historians and lawyers engage in the same behaviors, just in slightly different lines of the same business.

History books are often (falsely) assumed to be dull and boring, largely because the popular and mistaken picture of history books are the milquetoast and often highly selective textbooks that are chosen for classes. Often history students have the idea that history is dead and over with, is of no importance to the here and now, and that everything has been decided. Nothing is further from the truth. Instead, historians are an extremely argumentative sort of people, not usually in ferocious arguments (though some of us are that way) but especially in the pages of books, articles, and book reviews. Likewise, far from being resolved, history is full of fascinating and unanswered, and even a lot of unanswerable, questions. The fact that history is often used to justify the status quo politically and culturally, or to challenge it, means that history becomes a battleground of those wishing to return to a previous age, conserve what we presently have, or engage in often radical changes to the way things are so that we may enjoy a better future. Some historians even manage to show all three tendencies at once, depending on the subject.

Because historians are largely misunderstood as a profession by the ordinary person, the similarities between their profession and the legal profession are little known or appreciated. However, both professions engage heavily in casemaking tendencies. Just as lawyers examine law records and court transcripts (a historian would call these: primary documents) to determine legal tactics and strategy, so to military historians (especially those of practical bent) examine old primary documents like diaries and orders and memoirs to engage in tactical and strategic arguments about wars and generals. Just as a lawyer is looking to either defend or convict someone in a court of law, historians also adopt either defensive or prosecutorial attitudes towards the historical figures under dispute.

What this means, and what every reader of history ought to be well aware of, is that historians (like lawyers) use their research to build a case, to support a particular line of argument, and that this means their use of evidence is selective. For one, like a legal case under dispute, all the evidence is simply not available. For another, facts must be interpreted in a story in order to make sense. They are like pieces of a puzzle that must be put together without knowing what the picture on the outside of the box really looks like. Depending on our own perspective, our own bias, our own backgrounds, our own agendas (hidden or open—I prefer to engage in open agendas myself), we will build a case and put the puzzle together differently. Then we pit our puzzle against someone else’s puzzle (often there are two sides, sometimes more) in a debate where fierce rhetoric often overcomes a balanced and complete picture. Nuance gets lost as views get labeled and turn into cardboard representations of real views and the real people behind them. The result is an adversarial relationship between two sides that can scarcely agree on any fact. If this sounds like a court of law, it also sounds like a debate between historians over the causes of the American Civil War, or a host of other similarly controversial subjects.

And why is this so? Why do both lawyers and historians fight so hard? Because the stakes are high. The view we have of our past, the histories we choose to believe, are immensely important in framing our own expectations of what a society should be like, or whether we (or our neighbors) are good or bad people, or who the enemies of our culture and civilization are. Sometimes, as in law, the historian’s arguments can be crucial in very expensive results—like a lawsuit that can cost hundreds of millions or even billions of dollars. Let us provide an example. Howard Zinn is a pretty transparently Maoist historian, whose People’s History of the United States is an exemplar of a narrow, biased, and politically motivated work of history. Adopting his view of American history would involve adopting and supporting a massive expansion of government to a socialist utopia, itself a horribly expensive act. It may involve massive reparations to descendents of slaves and labor terrorists of the late 1800’s and early 1900’s who suffered repression from pro-business governments. Those kind of reparations are not likely to be cheap.

Likewise, let us assume a historian of a nearly entirely opposite ideological bias, a neo-Confederate historian who believes that the Civil War was entirely unjust and immoral. Such a person would argue that the Union effort against secession was unconstitutional, and may even argue for the restitution of lost slaves, and civilian property destroyed by Sherman’s march through Georgia or other military operations. Here we would have two very different cases about the past, neither case that I personally would agree with, but constructed out of the same past. That alone ought to tell us that historians, far from being unbiased, are usually interested in defending and supporting a particular view. This does not mean that historians are liars, but it does mean that they are advocates and not merely recorders of history. They have a stake—like a lawyer who needs to win a case to make any money—and so they argue accordingly.

This should not mean that we consider all historians (or all lawyers, for that matter) as the worst kind of scoundrels and liars. Indeed, some members of those professions are, but by no means all or even most. We may even, if we are savvy enough as readers, be able to weed out the good lawyers and the good historians from the bad, by examining the nature of their approach. Do they behave tentatively about conclusions—making inferences and judgments but not pretending to know the whole story? Better that than someone who pretends to know it all. Are they willing to give the benefit of the doubt to even those people they do not like or agree with? Are they evenhanded and consistent in their apportioning of credit or blame? The more fair-minded they are, the more their judgments may be trusted, and the more fair their picture is likely to be. For just as in a Scottish court, the verdict of history is a tripartite one: guilty, not guilty, or not proven. A lot of cases in history are interesting, even fascinating, but cannot be proven beyond preponderance of evidence (which would win a civil case). Some cases can be made clear and convincing, some of them beyond a reasonable doubt, and a few ones even beyond the shadow of a doubt. But history is a lot like law in requiring that one leave the realms of certainty and enter the realms of weighing and sifting the evidence. Being a historian is a lot like being a judge. So is being an informed reader of history.

Once we understand that both lawyers and historians make cases, either for or against certain arguments, certain theories, certain people, and certain interpretations, we can treat them fairly. We need not disregard what they say, but we need to be at least somewhat critical, both of them and of ourselves. For we too do not come into either a legal or a historical debate with clean hands. We too have biases, we too have perspectives, we too have agendas. By the same standard we judge others we will also be judged. The same demands we make on others we are bound to. If we judge others without mercy, so will we be judged without mercy. In fact, come to think of it, the theologian should be friends with both the lawyer and the historian too, but that is another story, for another time, perhaps.

About nathanalbright

I'm a person with diverse interests who loves to read. If you want to know something about me, just ask.
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13 Responses to The Historian And The Lawyer Should Be Friends

  1. Ted Saunders says:

    I was going to say the theologian should be friends too but you scooped that right at the end.

    I did notice an error in the ohms law formula you wrote on a month ago. It should have X not /…..

  2. David Lewis says:

    Well said …I’ve said similar things in class.

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