This is the second article in the series ‘Law and Justice: A Journey through History’. Read the first article here.
Rule of law is the bedrock of any modern society. It ensures equality of all before the law. Through notions of justice, punitive mechanisms, and multiple avenues of enforcement, law shapes social relationships and also in turn gets reconstituted and challenged by actors and contexts. In these moments law takes on another attribute – that of virtue. As we explore the troubled relationship between law, justice and society in the following essays, we will note how law struggles to negotiate a delicate balance between its punitive trait and as a messiah for justice. The essays in this series will uncover some fascinating aspects of law by turning to the archives of law. This will help uncover the commonalities between history, legal history, and socio- legal studies and also foster greater dialogue between historians and lawyers in South Asia. The essays for this special series will be curated by Dr Nitin Sinha (Leibniz-Zentrum Moderner Orient, ZMO Berlin), Dr Sukhalata Sen (Former Assistant Professor, National Law School of India University, Bengaluru) and Vidhya Raveendranathan (Centre for Modern Indian Studies, University of Göttingen).
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When scholars talk about the relationship between History and Law, Law is usually conceived as a specialised science which only has a passive relationship with historical change. However, as Law actively participates in the construction of History in the courtrooms, it is pertinent to ask how these two disciplines interact. What is the notion of fact and evidence in both these disciplines, and do they treat them differently? Is the pursuit of justice and writing of History inherently irreconcilable? It is important to raise these questions because we believe that Law instrumentalises History. This, in turn, creates a dangerous precedent for public reception of meanings of historical events and interpretations. This essay charts the journey of the relationship between Law and History and offers some suggestions in ways both disciplines can learn from each other.
1. History and Law at antagonism
From the early modern era several attempts have been made to reflect critically on the relationship between law and history. In England jurists employed history to understand the formation of English law. Law was understood to have derived its legitimacy from the collective traditions of society and nation. In the nineteenth century, positivists developed law in terms of abstract definitions and rules. Law was considered to be self-referential and autonomous, divorced from power relations.
In the twentieth century western world, Law’s relationship with History was fundamentally about justice and retribution for the victims of the Holocaust. Prosecutors and lawyers involved in Nuremberg trials hailed the Holocaust trials as ‘the greatest history seminar ever held in the history of the world which would provide an authoritative and impartial record for future historians’. Here, the fidelity to the past atoned for crimes against humanity and the law’s pursuit of justice was perceived to be akin to good historical practice. Trials served the educative function of telling the world about the crimes and allowed society to sit in judgement and provide closure to the victims. But trials were also seen as creating authentic records for future historians. So, there was a double relationship between history, law, and retributive justice: trials served as exposing the history of cruelty to give justice in the present, and also was seen as creating a repository of truth for the future.
In opposition to this, the advocates of impartial adjudication argued that criminal trials should not engage in writing history as it would compromise the principles of judicial procedure. For them, the purpose of a criminal trial was to ascertain guilt; any other inquiry would undermine the protocols of legal procedure and make law subject to plural interpretations.
A set of scholars has also pointed to the profound incompatibilities between Law and History when it comes to their approaches towards evidence and facts. For Law, the evidence has to be stable and definitive; for History, evidence can be relative as per their contexts. In a well-known essay, ‘History, Memory and the Law- The Historian as Expert Witness’, Richard Evans argues that historians, when summoned to act as experts for war crime trials, face tremendous risks due to law’s insistence on precision and certainty. Often in such trials, public memory becomes history and historians’ testimony about the complexity of historical events gets truncated in the service of propaganda and state power.
Law’s instrumentalisation of history continues to be an issue. In some of the recent court deliberations on genocide and mass crimes in Rwanda and Balkans, law has been used by war criminals to script a new past for the nation.Even in the case of the ongoing Israeli Palestinian conflict, the language of victimhood has been used by the authoritarian Israeli governments to deny the Palestinian people’s right to self determination.
2. Beyond the binary
There have been attempts to move beyond this war-informed pronouncements on the trials of both these disciplines and rethink the long-standing antagonistic relationship. Common law is no longer considered by experts as a timeless entity whose authority was solely drawn from the accumulated wisdom of precedent. Legal historians have called for a greater rapprochement between the two disciplines and exhorted historians to not just contextualise and interpret law but instead use law to understand society. The resulting scholarship has gone beyond the formalistic study of texts − statutes and appellate decisions as well as published treatises produced by trained legal professionals − to investigate the experiential life and practice of Law. History and other disciplines of social sciences and humanities have made it clear that Law is not just related to jurists’ opinion or processes that take place in the courtrooms alone. Law constitutes a wider arena of social relationship beyond such narrow institutional or expert domains.
Legal historical practice has become a fertile arena for critical race, caste, class, gender, and sexuality studies as well as for studies of colonialism. Carlo Ginzburg, a renowned historian credited with the development of microhistory approach, argues that both lawyers and historians can think of ways to benefit from the past while at the same time acknowledging that the past could always open new evidence that could upset conclusions of both disciplines. For Ginzburg, ‘Evidence like clue or proof is a crucial word for both historians and judges’.
However, these conversations have not dented the lawyers’ treatment of History or historical evidence in courts in an instrumental manner. To this, certain historians have responded that often legal actors treat history as precedent and employ ‘strained analogies, flexible standards of relevance and strategic citations’ to manufacture historical evidence. When courts lack rules governing the use of evidence, judges often exercise discretion in selecting historical facts rather discreetly. Even when historical facts are amassed, they are functionally and instrumentally organised to reveal undisputed truth which the Law could uphold as the unchallenged version of the past. When contrary evidence appears, courts often emphasise the fixity of meaning and lend its authority towards certain historical facts suited to the judicial narrative which they want to pronounce.
Another problem is anachronism. Jurists apply contemporary jurisprudential concepts to the past. In doing so, they instrumentalise History for the present. This creates the danger of misinterpretation. In a discussion on amicus curiae cases in the US Supreme Court, historians reflected on how courts manipulated History or uncritically selected historical evidence to override judgements in gun rights, abortion, and religious freedom.
3. History in the Indian courts
Let us turn to a recent controversy which serves best to outline the problem of Law’s engagement with History. In India though legal history has come a long way from explaining the rule of law or colonial origins of law,law in the courtrooms still works in silos.
Recently a case came before the Madras high court where Udhyanadhidhi Stalin, son of M.K. Stalin, had stated that “Sanatana dharma should not be opposed, but should be eradicated like dengue and malaria”. The court deliberated over the meaning of ‘sanatan dharma’ and whether it could be interchanged with the varna system. Justice Sumanth observed that ‘sanatan dharma’ could be defined as ‘high moral values and living’. Referring to studies from Kuppuswami Sastri Research Institute, the judgement concluded that there was nothing to suggest that the varna system stood for inequitable distribution of resources. Justice Sumanth further drew the conclusion that the caste system was an invention of British rule and that the ‘sanatan dharma’ predates such understanding of the caste system. Therefore, the statements made by Udhyanadhidhi Stalin were considered to be misleading, violating the spirit of the constitution, and labelled as encouraging divisive tendencies in the country.
While this incident received a lot of attention from the media, what has been overlooked is how the Madras High Court decided to lend its authoritative voice to privilege one understanding of the caste order that narrowly sees it as a product of colonial rule. Enough ink has been spilled by historians to show the pre-colonial origins of the caste. Even if one does not return to the ancient period for the sake of brevity, it has been convincingly shown how between the fifteenth and eighteenth centuries, caste has been shaped by competing polities fighting over territory, piety, patronage, scholarly networks, and material resources. Untouchability, marginality, and exclusion along caste lines were produced through state laws, administrative practices, moral and ethical treatises, and land, labour, and debt relations. This does not take away the crucial transformations to caste under colonialism on which also scholarship abounds, but for the courts to argue that India was a timeless tabula rasa and the colonial state simply created categories out of thin air is not only bad history, but also performs the function of permanently exorcising the brutalization of the marginalised social groups from public memory.
Rather than inviting historians or referencing their exhaustive scholarship in the decision of the trial, the judgement instrumentalised history through the complacency of the myopic vision of law. The Madras High Court’s attitude stands sharply in contrast to the US courts which recently heard cases of caste discrimination of Indian immigrants on American soil.The courts not only looked back at its history of racial discrimination and its tradition of anti-discriminatory laws, but also invited experts from Ambedkar Kings study circle to sit as amicus curiae in this matter. It finally concluded that caste discrimination was a form of racial discrimination and allowed courts to place America as the land of free and fair opportunity once more.
The problem with the verdict of the Madras High Court is not just that law took upon itself to pronounce a version of history, but that it also forecloses future revisions to such histories without the aid of law. Law has lent immense authority to the past to tell us ‘who we are’ and in turn used this past to speak to the present concerns as well. Such performative aspects of law, where one interpretation of history is pronounced as ‘legitimate’ lives on beyond the spaces of courtrooms. Most of the high courts in India now have televised proceedings. Legal proceedings which had hitherto been a world of restricted access, now unfolds like a reality TV show in the living rooms. And the judges are now more than ever acutely conscious of their new found role as guardians of public morality.
As more cases related to monuments, road renaming, etc. come to the Indian public courts, the law plays an increasingly dominant role in reconstituting the past as history. Few patterns emerge in the way law judges the past in such cases. First, this past, unlike the historian’s past, is a singular, unproblematic, and authoritative past. It is created through the legal function of precedents. The function of precedent is to create a sequential narrative of change. In the process the richness of historical narrative and interpretation is singularised under judicial narrative.
Second, legal judgements often draw upon outdated texts of history to set up the new precedents. Law seldom interacts with History as historians profess it, that is, treating History as a craft through which contextual and conflictual shifting meanings and practices of social lives are explained. History is reduced to a compendium of facts and if History fails to provide such facts, law moves on to Indology and Sanskrit texts to find that indubitable fact. Legal fact of course builds upon historical facts but in the process also runs the danger of decontextualizing them.
Third, unlike Law, History is not burdened to offer solutions to present problems. Therefore, to utilise History in this manner only creates anachronisms in the legal argument. Currently, most of the disputes in the present have been accommodated in the language of constitutional morality. This manoeuvre allows Law to unpack the ‘real’ meaning of the constitution through historical precedents in India. In the process it slides into an argument about originalism of the constitution and History gets subverted to the sacrosanct text of the constitution. While there is a great value to the idea of constitutional morality – action guided by the text and spirit of the constitution – for public and political conduct in general, its centrality in evaluating the past can overturn the meaning and function of the discipline of History.
Where to from here?
If we cannot completely rely on the pasts constructed through judicial narratives, then how shall historians attempt to write legal histories? It is not enough to claim interdisciplinary research for both Law and History. We also have to begin from the limitations of two disciplines and move beyond their incompatibilities.
Taking cues from the conversations about law and history in the West, courts in India can evolve rules for subjecting historical evidence to rigorous testing and subsequently create an archive of information using standardised research protocols, expert testimony, and discovery mechanisms so that historians are not pressured to compromise their testimony to the requirements of law. Courts can also display ‘interpretative modesty’ and not profess to mine the past through archaic texts for precise answers or undertake anachronistic readings of the past. While acknowledging the limitations of history as a discipline in not knowing the past in totality, they must be willing to embrace the contingencies of the past and not treat historical evidence as a fetter for closure and certainty but instead treat it as something that can be used to further the interpretation of law.
As Michael L. Smith claims, by employing interpretative modesty law will become cognizant of its limitations and will have modest expectations to construct a narrative of evidence that is ‘sincere and non-hallucinatory yet at the same time has some commitment towards objectivity and truth’. Historians should also be prepared to accept the possibilities that the past might not always suit their ideological predilections as opposed to manipulating evidence for establishing the validity of their political positions. To translate this to reality, historians have to be invited as amicus curiae on historical cases under deliberation in the courts.
Strangely, India holds the record of not inviting a single historian for any of its amicus curiae. To have historians draft amicus curiae will prove the benefit of looking back at the problems of the past, the rippling effects of a law upon society ,and the historical wrongs which could not be adjusted due to its blinkered vision. Once these conversations and efforts at practical applications are revived, true interdisciplinary studies can emerge. History can move from the general prescription of lessons from the past to an active engagement with the problems of the present. Law can correct its assumptions or tailoring of an even, unproblematic past to work on better laws for the public. At a time when both Law and History are being instrumentally used and made subservient to the state, it might be useful to remember the English historian and jurist FW Maitland’s words in 1888, ‘When lawyers turn to history…Their aim is to find orthodox dogma in history. If we try to make history the handmaiden of dogma she will soon cease to be history.’
