October 16, 2009

Law and History

In 1959, John Pocock published what has become a key text in the history of English Political thought. The Ancient Constitution and Feudal Law charts the development of a set of ideas about the English past in the thought and political ideology of a number of lawyers: it suggests through an exploration of the paradigmatic figure of Sir Edward Coke, that this understanding of England's past played a vital role within seventeenth century history and controversy. Pocock's work touches on a vast theme which is that there are two groups of people interested professionally immediately in the past- one group are historians, the others are lawyers. History has not ceased to be important to lawyers today: currently in the US there are a group of conservative lawyers, headed by Justice Antonin Scalia, who argue for an originalist interpretation of the American constitution. The constitution, according to Scalia and his allies, should be interpreted in the way that it was written: the words should be applied with the intentions of the founders in writing those words down in mind. There are many problems with this idea about the constitution: some are picked up on in this article on History News Network, but there are deeper methodological problems involved in Scalia's project. First of all any constitution is a compromise document: the words are vague because they are intended to appeal to everyone in the room at the time- whose interpretation should a judge pick later as the 'original' interpretation?

There is however a greater problem implicit in Scalia's logic. Lawyers and historians do not think in the same way and do not want the past to work in the same way. Historians are in general interested in what the past has to offer as a totality: as a historian if I analyse eighteenth century America I want to see it in all of its complexity and abundance, I do not want to isolate (any more than I have to for reasons of practicality and time) any aspect of it from any other aspect. My enterprise is to understand the world as they saw it. Lawyers are not in that business. They are in the business of finding a precedent and abstracting it from that time forward into this time: they weigh and discuss precedents against each other. The discipline is very different: and the failures of lawyers in conceiving of history from Sir Edward Coke forwards was one of the subjects of Pocock's work. But it is important that we realise why lawyers fail as historians: it is not that they are stupid or wrong, but that they want to use the past for a different act- Justice Scalia is not interested in anything that does not effect his precedent. His problem is that everything, accurately understood, effects his precedent in the period he wants to abstract the law from. Consequently he has to be selective to do his job, ie be a judge, consequently he cannot find the original intention he so desires to abstract.

Originalism is not a sensible judicial doctrine not because it is unappealing as law but because it is unsound as history. Lawyers cannot recover the original intention of an act or a constitution, particularly something which was formed as a consequence of many intentions. They can arbitrarily insist upon a fragment of history that they choose to drag forwards, but in doing so they must abandon the argument that what they are doing is in any sense originalist. They must concede that they like their opponents are creating interpretation as opposed to restating interpretation. Sir Edward Coke may have been fixated on the past and the unchanging essense of English law: actually as Pocock showed he never understood the context of the law he quoted and became thus a great legal innovator rather than a great legal conservator.

Methinks despite the rhetoric of originalism and traditionalism, the fate of conservatives like Scalia is to become radicals who misuse historical evidence.


mutleythedog said...

Big changes in the ways laws are applied would of course be radical not conservative - it seems very odd to even think of this as an idea...

Gracchi said...

Mutley fair interpretation.

I just had a comment published on here by a commenter about Islam and advertising his book against Islam. This post had nothing to do with Islam whatsoever- so what he wrote was off topic. Furthermore it was also pretty obviously an advert for his book which is the reason I have deleted it. I am happy to discuss Islam or any other subject on posts that I have written about that subject- but this was not one of them and I do not in general like or tolerate people using my blog as a way to advertise their wares.

James Higham said...

History though is a very political thing and no broad umbrella can be applied to all who would think of themselves as historians. You and I are two cases in point where the documents we read differ on the one issue and as AJP Taylor said, in as many words, history gets thicker in recent times.

I'd add that there is more scope for disagreement of late although Richard III and Christianity defeat that argument.

Gracchi said...

James I agree that history is innately political- though it is also innately empirical and I agree that that goes back all the way to the Babylonians and to very ancient histories. All the more important therefore that the limitations of what history can say are understood when we come to understand a difficult concept like legislative intention.

Anonymous said...

Misrepresents originalism a bit- the meaning is the UNDERSTOOD meaning
of the words by those who RATIFIED or VOTED FOR a Constitution/Law.
This is not nearly that impractical, as you can look to these agents
directly, and establish context within a historical period. You do
not need to fully comprehend the period to do this. You merely need
to know the intentions/undertanding of the relevant agents.

It is still arguable that you could not know the intentions of these agents 100% but nothing is perfect and this framework is relatively effective. To portay originalism as a requiring the of knowing of exactly what the pas it somewhat misses the point, it is a process through which the law is examined rather than a final conclusion.

Gracchi said...

Anonymous interesting point but I still think my argument stands.

I agree with you that the question is the intention of the agents who passed the law- but I would ask three questions.

1. Which agents are you talking about- in the assembly say of the constitutional convention, whose voice is the voice of the agent creating the law? Every delegate may have had a different understanding of the law that they passed- whose understanding is the understanding that frames the way that the law should be interpreted?

2. Historians have begun to establish that you do have to know the context of what the agents believed in order to understand their speech acts. This is not really a question but a point- Quentin Skinner and Peter Laslett before him have shown that without that understanding you cannot understand the meaning of a statement made by an agent. To take an example in order to understand Augustine's points about Donatists, you need to understand Donatism. In order to understand the second ammendment you need to understand what the agents meant by a militia and who they envisaged arming- you need to understand the military formation and distribution of weapons in that time in America.

3. Lastly I'd ask exactly how all this evidence about intention is to be assessed. For instance should the law change as the state of historical knowledge about the constitutional framers changes. The intentions of historical agents in historiographical debate do not remain static but our interpretation of their intentions change- every time that happens should the law change. Is it a legitimate legal argument for me to say that Bernard Bailyn has published a new book revealing that John Adams did not mean what we all though he did mean on July 22nd 1776? If not, why not? Is the discipline of law really an inferior cousin to the discipline of history? And given historians dispute all the time and argue about these questions (and not about the smaller aspects of them either), who should decide which historical interpretation becomes the legal interpretation?

true outsider said...

I will try and answer more fuly when i have time. Few things that strike me is that

a) I think this has important implications against written constitions and for some simple legal principle the high court of parliament decides everything

b) This applies to any old law does it not? Is 18th century Britihs statues incapable of being understood in an origanlist way (includig in the light of new statues/ constitutioanl amendment) ?

c) at the very least doenst originalism provide a powerfull negative force. You can find if your interpreation of the menaing of a text would have been supported by anyone.

so the 14th amendment say Trumball and Sumner might have had very diffetn implicaion with the latter giving it more power and more "radical" (more pro legal rights of African Americans)thus indeed leaving huge discretion to the judge in such matters.

but you could say with a very high level of certainity neither of them to think it gave a right to abortion or contraception to individuals.. or indeed other freinds and critics of the amendment. Nor would the words have been taken to mean that by any of them.

Gracchi said...

Outsider: good points and I particularly like your point abotu the negative force of originalism. I await your fuller response with anticipation!