Success, Failure, and Other Historical Crafts

The author of Afghanistan Rising responds to our critical review essays by six scholars of diverse historical expertise, from the late Ottoman and Habsburg Empires to Southeast Asia, and Islamic legal history to the political economy of the British Raj and Indo-Afghan frontier. Centering administrative and constitutional developments in Afghanistan within broader regional and global currents connecting the Balkans to Indian Ocean at the turn of the twentieth century, Ahmed reflects on what it means to write “a history that most people do not think exist.”

Über die Notwendigkeit der Historischen Bildungsforschung. Wegbegleiter*innenschrift für Edith Glaser

For a long time, historical educational research has seen a decline in its representation in university teaching and academic posts. Concurrently, its thematic and methodological variation has expanded impressively in the last two decades. This volume, dedicated to Edith Glaser, aims to enrich the legitimacy discourse on the importance and necessity of educational historical expertise from two perspectives. On the one hand, it presents exemplary fields of research in the history of education, on the other hand, contributions show the relevance of historical educational research for other (sub-)disciplines.

Judicialising history or historicisng law: reflections on Irving v Penguin Books and Lipstadt

In 2000, David Irving brought a libel action against Professor Deborah Lipstadt and Penguin Books focusing on allegedly defamatory allegations in her book Denying the Holocaust associating him with the Holocaust revisionist movement. The case concluded in April 2000 with Irving’s defeat. By focusing on Irving’s methodological technique, the defendants succeeded in establishing that Irving’s misrepresentations and falsifications were neither accidental nor careless but ideologically motivated. His character was presented and censured as one which manipulated and distorted in order to facilitate a racist agenda. Presiding judge, Mr Justice Gray was keen not to pollute the exercise of justice by acting as a quasi-historian, nevertheless Irving sharpened the focus on the relationship between historians and courts. Can history migrate from the amphitheatre to the witness box and re-emerge with its integrity intact? Historians are increasingly called as expert witnesses and this has resulted in huge controversies, intra-historian strife and debates on experts’ ethics. Thus, despite this article’s mooring in a Holocaust context, it raises questions relevant to the much wider context of history and law, and as regards “public history”. Law and history will meet continuously during litigation. Judicial and historical understandings of evidence should not be either intuitively or automatically elided and even a Holocaust context should not conquer the quest for a mutually self-aware relationship. Without engaging in endless discussions concerning the nature of knowledge and the philosophy of history, judges require standards for assessing the weight of historical evidence to ensure “intellectual due process” and that, evidentially at least, legal conclusions are sound. How can historians best facilitate the legal process and how can lawyers avoid mistranslating historical work? A legally created standard (such as Mr Justice Gray attempted) for expert evidence appears attractive. Admissibility or reliability tests are options and open up issues such as bar-appointed experts and expert ethical codes. Ultimately, the quest is not to crowbar unwilling historians into roles as mere judicial handmaidens, but instead to recognise wider societal contributions of historians and to give due credit to the 'reasonable historian'. When historians appear as expert witnesses, they are not 'doing history', they are communicating historical expertise in another forum. Such cross-pollinating communication or 'public history' is a process of translation. Undoubtedly, law is the dominant discipline in court and history is being instrumentalised. However, with due care, such interactions need not distort complex historical studies or restrict future historical research. Disciplinary faithfulness can be preserved by legal reliance on historical guild-standards. In this way, standards regarding intellectual rigour and methodological integrity are safeguarded and notions that there is one history for historians and another/lesser one for courts are avoided.

Judging the Communist Past: Historians and Cultural Expertise in Polish Administrative Courts

Since 1989, cultural expertise has emerged as a crucial factor in navigating Poland's communist past. The use of cultural expertise provided by historians was institutionalized in 1999, when the Institute of National Remembrance was created and charged with prosecuting Nazi and communist crimes, as well as assisting with the belated decommunization. Expert historians are requested by courts and other institutions to provide opinions in cases ranging from alleged collaboration with communist secret services, withdrawal of veteran status bestowed to soldiers of communist military units fighting the Polish resistance movement, awarding compensation to victims of German concentration and labour camps, to changing names of places named after prominent Party activists. Using this expertise requires the courts to understand the intricacies of recent Polish history, such as the operational methodology and archival practices of communist secret services, or the complex interplay of motives to collaborate (or not) with foreign oppressors. In this paper, the new salience of historical expertise for the Polish courts is analysed within the framework of Honneth's (1995) ‘struggle for recognition’ and Haldemann's (2008) work on the symbolic role of courts in transitional justice contexts.

Originalism and the Law of the Past

Originalism has long been criticized for its “law office history” and other historical sins. But a recent “positive turn” in originalist thought may help make peace between history and law. On this theory, originalism is best understood as a claim about our modern law--which borrows many of its rules, constitutional or otherwise, from the law of the past. Our law happens to be the Founders' law, unless lawfully changed. This theory has three important implications for the role of history in law. First, whether and how past law matters today is a question of current law, not of history. Second, applying that current law may often require deference to historical expertise, but for a more limited inquiry: one that looks specifically at legal doctrines and instruments, interprets those instruments in artificial ways, and makes use of evidentiary principles and default rules when the history is obscure. Third, ordinary legal reasoning already involves the application of old law to new facts, an inquiry that might otherwise seem daunting or anachronistic. Applying yesterday's “no vehicles in the park” ordinance is no less fraught--and no more so--than applying Founding-era legal doctrines.