Counterfactual Legal History
posted by Gerard Magliocca
About ten years ago a popular series of books called “What If?” — consisting of a series of essays by historians — came out that looked at key turning points in world or military history and tried to describe plausible counterfactuals. I’ve often thought that asking that question about law would make for a fun conference. Proposing the idea, though, points up a major difference between lawyers and historians.
Historians (except for the folks who participated in those books) are generally not fans of counterfactuals. In part, that is based on a methodological preference in favor of describing reality rather than speculating. But another reason is that historians tend to be very sensitive about the complexity of events and thus very skeptical about causal arguments of any sort.
Lawyers, by contrast, use counterfactuals all the time. After all, “but for” causation or “harmless error” is asking a jury or court to figure out alternative paths for litigation. In part, this is justified because we view causation as a more probable than not question. A looser standard for causation leads to a greater willingness to think about what might have occurred if the facts were changed.
Once again, this raises the question of what a legal historian should do. My own work is chock full of counterfactual experiments, which may explain why some historians might not like my scholarship. Straightforward legal history is important and worthwhile, but it seems to me that law (especially constitutional law) is more contingent than we generally think, and thus we need more work exploring lost paths. There are some terrific examples — Risa Goluboff’s book on “The Lost History of Civil Rights” comes to mind — but that’s not enough.
November 17, 2009 at 9:58 am
Posted in: Jurisprudence
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Responses (7)
Patrick S. O'Donnell - November 17, 2009 at 11:17 am
I think most historians rely on causal arguments all the time (and thus are NOT AT ALL ‘very skeptical about causal arguments of any sort’), even if they’re not explicit or unable to identify the precise causal mechanisms at work (e.g., such motivational forces as beliefs, passions or interests) or cleave to proper methodological principles (e.g., a preference for methodological individualism a la Elster): indeed, any history worth reading (e.g., of the French or Russian revolutions) is chock full of causal claims of one sort or another, it’s what makes these descriptive narratives interesting or controversial and beyond mere chronologies of events and so forth (or more than storytelling simpliciter).
However, I think it IS true that historians are professionally predisposed to find ex post counterfactual reasoning of little value: they have a hard enough time pinning down the “fact” stuff to indulge in (more than occasional) ex post counterfactual speculation. Still, I suspect they engage in ex ante (mental) counterfactual reasoning before putting pen to paper (so to speak): it just doesn’t make it on the page, or takes the form of a competing or alternative historical narrative.
Counterfactual reasoning is more likely and plausible in legal contexts owing to questions of scale, scope, and time, including the fact that we’re often dealing with more or less discrete actions and events with far fewer actors, groups and institutions as significant variables.
(As to what a legal historian should do, well, I’ll leave that to you and other members of your profession.)
Bruce Boyden - November 17, 2009 at 11:22 am
This is a great series of posts, Gerard. I’ve often wondered the same things. Even back when I was doing history as a grad student, I thought the visceral reaction of some to counterfactuals was overdone. It seems to me that any time the historian takes a critical attitude towards the developments in question (which is often, I think) there is at least an implicit counterfactual at work.
But to your broader series of questions, namely what should a legal historian do, my own opinion is that all academic writing at some point faces a “so what?” question. Even historians have to plug in their accounts into some larger narrative or discussion or risk being accused of mere chronology or local interest. But in different fields different types of answers will be considered appropriate responses to a “so what” question. For interdisciplinary work, either that requires two different papers, or one paper that attempts to simultaneously answer both types of questions. I think the latter is usually going to be difficult or impossible, but I think for legal historians some version of “how is it that we got to where we are now?” might do the trick in many cases.
John Setear - November 17, 2009 at 12:06 pm
I’ve used excerpts from the “What If?” books for courses I teach on, for lack of a better word, counterfactual diplomatic and legal history.
For law students in those courses, I point out that their education is chock full of counterfactuals in the form of the “hypos” beloved by instructors. The point of a hypo, after all, is to construct some set of facts that was not before a court and then argue about whether the outcome or stated rule would be different, and that strikes me as an inherently counterfactual endeavor.
As to historians, I would side with the people who say that any causal argument is implicitly counterfactual, whether you’re talking about torts or history. Historians (and political scientists) sometimes try to wriggle out of the problem by saying that something is a “factor” or that it “matters,” but that strikes me as casual as well.
I would also agree that historians are hesitant to take this sort of argument very far, but even pressing them a little bit can be useful in terms of sharpening arguments and forcing a more precise argument about alternatives. Often — and I assume that this should be music to the ears of historians — the conclusion we’ve reached in class is that the particular context of the decision-makers made it very difficult for them to see alternatives to what they did, even if we can see such things with hindsight.
Anyway, if the question is whether a conference on counterfactual law or legal history would be fun, I think it would.
– John Setear
Laura Heymann - November 17, 2009 at 1:54 pm
Peter Yu organized an interesting IP conference on this theme a couple of years back: http://www.peteryu.com/conference07.htm
Managing Board - November 18, 2009 at 9:02 pm
I think that historians make greater use of counterfactuals than you credit. As has been said, arguments about causation and contingency imply counterfactuals, even if they aren’t actually spelled out Niall Ferguson style, with Hitler conquering the world or whatever.
By the way, back in the 1960s, Robert Fogel’s extremely boring extended counterfactual on nineteenth century America without railroads was taken quite seriously and spawned equally boring replies.
And I must completely disagree with the claim that historians are skeptical of causal arguments. That is pretty much what historians do: explain change over time. If you are doing “what” history rather than “why” history you had better have a good reason.
Daniel S. Goldberg - November 18, 2009 at 9:12 pm
I seriously disagree with the generalizations that “historians are not fans of counterfactuals” and the supposed explanation that such a state is based on a “methodological preference for describing reality . . . ”
It is, to my mind, an impoverished vision indeed of what historians do, or at least aspire to do, to think that they confine themselves to a purely descriptive endeavor related to identifying and cataloguing brute facts. I find my own (fruitless?) attempts to contribute to the relevant historiography on a subject to be (aspirationally) a deeply synthetic endeavor, and the debate over whether historians describe objective facts is both ancient and still deeply contested, as far as I can tell.
IMO, the historian who is not constantly evaluating counterfactuals has no real way of testing their efforts to synthesize the relevant social context.
Patrick S. O'Donnell - November 25, 2009 at 10:04 pm
This might interest some folks: Gabriele Contessa, “Why Historians (and Everyone Else) Should Care About Counterfactuals,” Available as pdf. doc. here: http://substantialmatters.blogspot.com/2009/10/new-metaphysics-drafts.html
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