Abstract
This first part of the book is of a theoretical nature. The first chapters introduce the concept of Clio’s Modern Paradox. Clio’s Modern Paradox explains why history and historians, from a theoretical point of view, are conceived as controversial in the courtroom. By discussing certain issues from theoretical history in an interdisciplinary context of law and history, I lay the theoretical groundwork in which I will discuss forensic history.
He who loves practice without theory is like the sailor who boards ship without a rudder and compass and never knows where he may cast.
Leonardo Da Vinci
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Notes
- 1.
Golsan, Richard. 2000. Memory and justice on trial. The Papon affair, 13. New York: Routledge.
- 2.
Dutch historian Jan Romein described “theoretical history” as follows: “theoretical history aims at bridging the gap that divides the cautiously objective technique employed to ascertain the isolated facts of history, and the arbitrarily subjective method by which these facts are assembled into a picture of the past.” Romein, Jan. 1948. Theoretical History. Journal of the History of Ideas 9, 54. I will define “theoretical history” following Romein, adding that “theoretical history” also discusses how historians should conduct their research. Another source for my definition of historical theory is the Dutch theoretical historian Chris Lorenz who defined “theory of history” as follows: “Theory of history consists of ‘the philosophical examination of all aspects of our descriptions, beliefs, and knowledge of the past’ and is both descriptive and normative.” See Lorenz, Chris. 2011. History and Theory. In The Oxford History of Historical Writing, Vol. 5, ed. Daniel Woolf and Axel Schneider, 13–35. Oxford: Oxford University Press, 28. I have defined “theoretical history” in this book as follows: “The theories used by historians to discuss how their craft is functioning and how it should function.” All other definitions described in this introduction are predominantly drawn from American historiography. I allow this Americanization of my theoretical discussion because of the fact that litigation-driven history is a predominantly American matter.
- 3.
The traditional interpretation of Ranke’s adage is consequentially described as “positivist objectivity.” In this book, “positivist objectivity” is defined as: “The conviction that facts can be presented as they have actually happened in the past, without any interference of the historian or his methods.” I will argue in favour of an intersubjective objectivity, which I interpret as follows: “Objectivity of an intersubjective nature demands that historians publish their research in order to let their peers determine whether the historian has been objective or not. Objectivity is therefore essentially a shared idea between fellow historians on what professional historical research is comprised of.”
- 4.
In this book I define “postmodern relativism” as follows: “Those postmodern historical philosophical assumptions that deny any relation between fact and historical narrative.”
- 5.
Under “theoretical conceptualization” I understand: “The definition in clear terms of assumptions and analytical tools that are common in historical practice, such as epistemological concepts, concepts on objectivity, causality, narrative, temporality, spatiality, and ethics, shared by the majority of the historical profession.”
- 6.
I define “the historical discipline” as: “The professional research of history that is practiced and taught in predominantly academic but also public environments.”
- 7.
“The past” is understood in this book as follows: “The past is a much broader term than history; “the past” does not only encompass history but also memory, remembrance, and heritage.”
- 8.
I define “the law” in this book as: “A body of legal rules and standards that have been the result of research [the study of law] and practice [legal doctrine and advocacy] with the aim to regulate social interaction as best as possible.”
- 9.
Posner, Richard. 2009. Law and Literature. Cambridge: Harvard University Press, XVI.
- 10.
Posner, Eric. 2002. Law and Social Norms. Cambridge: Harvard University Press, 8.
- 11.
Posner, as n. 10, 8.
- 12.
Generally, law is equated with advocacy but law is also legislation and legal doctrine. Legislators, judges, and legal scholars try to study human conduct in order to regulate and maintain ways of social interaction which allow the greatest happiness for the greatest number of people.
- 13.
Ginzburg, Carlo. 1999. The Judge and the Historian: Marginal Notes on a Late-Twentieth-Century Miscarriage of Justice. Trans. A. Shugaar. London: Verso, 4.
- 14.
Wilson, Richard. 2005. Judging History: The Historical Record of the International Criminal Tribunal for the Former Yugoslavia. Human Rights Quarterly 27, 917.
- 15.
Ginzburg, Carlo. 1999. History, Rhetoric, and Proof. Hanover: University Press of New England. & Ginzburg, as n. 13.
- 16.
I define the contemporary dominant idea of “science” in this book as follows: “Intellectual disciplines that research “natural” objects through testable and objective [neutral, impartial] methods or general laws which allegedly produce absolute and usable facts.”
- 17.
Posner, Richard. 2008. How Judges Think. Cambridge: Harvard University Press. & Posner, as n. 9.
Bibliography
Ginzburg, Carlo. 1999a. History, Rhetoric, and Proof. Hanover: University Press of New England.
Ginzburg, Carlo. 1999b. The Judge and the Historian: Marginal Notes on a Late-Twentieth-Century Miscarriage of Justice. Trans. A. Shugaar. London: Verso.
Golsan, Richard. 2000. Memory and justice on trial. The Papon affair, 13. New York: Routledge.
Lorenz, Chris. 2011. History and theory. In The Oxford history of historical writing, vol. 5, ed. Daniel Woolf and Axel Schneider, 13–35. Oxford: Oxford University Press.
Posner, Eric. 2002. Law and social norms. Cambridge: Harvard University Press.
Posner, Richard. 2008. How judges think. Cambridge: Harvard University Press.
Posner, Richard. 2009. Law and literature. Cambridge: Harvard University Press.
Romein, Jan. 1948. Theoretical history. Journal of the History of Ideas 9: 53–64.
Wilson, Richard. 2005. The historical record of the international criminal tribunal for the former Yugoslavia. Human Rights Quarterly 27: 908–942.
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Delafontaine, R. (2015). Introductory Theoretical Remarks on the Alleged Problematic Nature of the Interaction of History and Law. In: Historians as Expert Judicial Witnesses in Tobacco Litigation. Studies in the History of Law and Justice, vol 4. Springer, Cham. https://doi.org/10.1007/978-3-319-14292-0_2
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