Roadmaps into the Archives: On the Positionality of Historians in the Courtroom

Qianyue Xu, Columbia University

This paper examines the positionality of historians as expert witnesses in the courtroom. I argue that their role is to submit to the court’s evidentiary gaze well-informed roadmaps into the archives. In so doing, they act as proxies of archival politics in the courtroom regarding what claims can be made about historical events and processes based on archival records and the lack thereof. Therefore, historians in the courtroom are not at all disinterested, as 1) instead of purely extracting, they mobilize selective methodologies in navigating, mapping, and triangulating data from the archives; 2) the archives that they work with are supported by their own historical and organizational scaffoldings, which surface in the strategic erasure or invisibility of sensitive documents. I illustrate my argument through three case studies: 1) Mutua & Ors v The Foreign and Commonwealth Office, where, trying to define a “system” that would entail the joint liability of the current British government and its colonial government in Kenya, the historians’ research led to the discovery and court-ordered disclosure of formerly concealed colonial files; 2) French historian Henry Rousso’s refusal to serve as an expert witness in Holocaust perpetrator and collaborator trials; 3) Irving v Penguin Books Limited, Deborah E. Lipstat, where two conflicting roadmaps into the archives submitted by two historians are on trial to decide whether the Holocaust-denying historian David Irving had distorted historical evidence. I then compare the positionality of historians with that of scientists in the courtroom. I contend that the juridification between “academic history” and “forensic history,” “research science” and “forensic science” in court not only complicates the assumed epistemological innocence of both disciplines by revealing the boundary work at play but also exposes the truth-making—instead of truth-finding—enterprise of the law, as well as limitations of specific legal procedures.

No extended abstract or paper available

 Presented in Session 161. Truth, Self-Construction and Data in the Legal Archives