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Trust, Proof and Persuasion in Historiography: A Litigation Analogy


Many if not most historians, and many if not most other academicians who employ history as a significant part of their discourse, form and present their arguments in ways strikingly analogous to those of lawyers in an adversarial legal system. Historians sift through and strategically select from among the legion available facts ("evidence") to create a proof-based rhetorical narrative in support of the specific interpretation, with the understanding that reviewers, including proponents of competing arguments, will likely contest perceived instances of claim excess. While the central thesis is primarily descriptive, it may be possible to extend its logic to serve as a means of reconciling the literary and referential elements in history. The attempt to integrate those two threads has been a dominant concern in historiography for some decades now.

The central thesis takes the form of an analogy, itself emerging from a synthesis of numerous reflections by historians and historiographers about their field and subfields. Testing proceeded first through a comparison of the literature on the theory and practice of law and history, then via an examination of zones and instances where law and history considerably overlap, including legal cases where the history of a specific question is the gravamen of the case, notably in some of the landmark education decisions.

Recognition of strong parallels in the two fields should not alarm. For with historians and lawyers alike, the good ones at least, persuasion is both the primary means and ends of argumentation. And for persuasion the chief currency of exchange is trust. In turn, trust is often a function of fairness. Real benefits to historical scholarship can accrue through the recognition and adoption of some aspects of the lawyer's approach, prominently the need to assess critically, before dissemination, one's own narrative for internal coherence, including sufficient treatment of predictable counternarratives.

Yet some of the more salient points emerge from those instances where the analogy proves imperfect. For example, while academic users of history often behave as professional advocates, in some settings they might do so without the lawyer's fuller range of checks against abuse of position. In this respect, the thesis also is somewhat of a cautionary tale, for in extreme cases asymmetries in local leverages are anathema to good scholarship and good teaching. The findings here apply mostly to professional historians but are also applicable to non-historian academicians and thus are amenable to a wider pedagogical focus on encouraging modesty and generosity in intellectual exchange.

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