Historians, lawyers, and stakes

From time to time people (mainly the Interpreters* and their followers) complain that I'm not a historian, so I shouldn't be writing or even commenting about Church history. They complain that I apply principles of legal analysis to the historical evidence.

The distinction between trial lawyers and historians is understandable in terms of education and career identity, but the practical, real-world distinction seems to boil down to the stakes involved.

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Every judicial trial is an exercise in competing versions of history. Lawyers occasionally hire historians to help research and prepare a case, just as they hire investigators and other experts, but ultimately it is the lawyer who must assemble and present the facts of the case to support the client's position. 

Some facts are objective; everyone agrees with them. 

Other versions of reality are disputed--witnesses disagree, circumstantial evidence is ambiguous--which leads to competing narratives. The competing narratives are explored through cross-examination and other tests of reliability and credibility, presented to a fact-finder (judge or jury) who decides which version of history is proven according to the applicable standard (preponderance, clear and convincing, beyond a reasonable doubt).

For lawyers in civil trials, accurate history is a matter of money; who pays whom depends on which version of reality satisfies the applicable burden of proof according to the fact-finder. Lawyers for each side present alternative interpretations of history for the fact-finder to decide.  

For lawyers in criminal trials, accurate history is a matter of freedom vs incarceration, or even life and death. 

For historians, though, accurate history is a matter of intellectual debate with few if any real-world consequences, apart from their own reputations and compensation for books or teaching.

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This different sense of the stakes involved explains why, in my view, so many LDS historians seem to succumb to a "groupthink" approach that reinforces consensus views they've inherited from their teachers and peers. (The critics do likewise, albeit with opposite groupthink and consensus).

In many cases the historians seem lackadaisical, both (i) willing to edit and even omit original sources that contradict their theories and (ii) unwilling to apply what lawyers consider ordinary truth-testing techniques. 

I've been astonished at some of the examples of this tendency among LDS historians, such as the Saints book (vol. 1) and the Gospel Topics Essays. 

Tomorrow I'll post some more specific examples from recent publications.

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A seminal article on this topic includes some useful thoughts. It observes that "Another difference between the historian and the lawyer is that, generally speaking, the material before the historian is documentary, whereas many of the matters with which a lawyer has to deal are concerned with the evidence of living persons."

Sankey, "THE HISTORIAN AND THE LAWYER: Their Aims and their Methods" in History, NEW SERIES, Vol. 21, No. 82 (SEPTEMBER, 1936), pp. 97-108

https://www.jstor.org/stable/24401521

This experience with living persons conditions lawyers to examine psychology, perception, motive, and other factors relating to reliability and credibility that historians seem to largely overlook. 

On this point, Sankey further observes, "It being the function of both the historian lawyer to take part in an investigation of facts, the historian is at a disadvantage compared to the lawyer. How does a historian propose to test the truth of the material which he has to consider? The lawyer has the advantage of cross-examination—the historian no such advantage."

This is why, in my work on history, I challenge witness statements along the lines of cross-examination. That seems natural to me, yet many LDS historians seem to take witness statements at face value without considering such basic elements as motive, opportunity, and means. 

Another excerpt:

"But when the historian or the lawyer has collected his evidence, two questions arise : How and to whom is he to present it ? History being a narrative, the first thing for the historian to remember is that he is telling a tale.... that the art of narrative is the principal craft of the historian.... Here again, the advocate's task is the same as the historian's. However simple the case in which the advocate is engaged, he is, in fact, telling a tale, and the better he tells it the greater effect will it have."

Finally,

"... the position of the historian is rather that of the lawyer advocate than the lawyer judge. And there is another reason why this should be so. The historian differs in one respect from the advocate in a Court of Law. There is no check on him. As already pointed out, there is no one to cross-examine the witnesses at the time, although later on some other historian may, on fresh facts, criticise one of his predecessors. Neither is the historian in the position of the judge, who has the advantage of hearing both sides, with the assistance of counsel on either side. However careful he may be, it is only his unaided judgment that leads him to his conclusion. The verdict of history, therefore, can only mean the opinion of some individual historian."

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*As used in this post, the Interpreters are those who embrace the editorial bias and tactics of the Interpreter journal in favor of SITH, M2C, and related theories. Based on their complaints, they wouldn't mind in the least that I write about history so long as I agreed with them.