Fishing, Not Catching, in the History of the Law

Guest Blogger

John Fabian Witt

Some readers may have noticed that my colleague Samuel Moyn and I have had a back and forth over the past couple weeks about his much-discussed new book on the past, present, and future of the laws of war.  I’m grateful that some have thought the exchange edifying, and I might have let the dialogue rest.  We’ve had interesting disagreements on the substance of the laws of war, which perhaps future scholars and students will consider valuable starting points.  But a different kind of disagreement – a disagreement over method in historical scholarship -- prompts me to write this short post. 

Here’s Moyn’s most astonishing passage: 

History is always moral and political. In a new book, the international lawyer Anne Orford rightly indicts historians for pretending otherwise—except that most don’t. I never have written history as anything but politics by other means, though Orford makes much of some rash (or strategic?) verbiage in one of my books to the effect that it restored the “true history” of human rights. In his review of “Humane,” Witt comparably says he has furnished the “real history” of the laws of war. But what does his own narrative of the sun never setting on the eternal dilemma of brutality versus humanity in war imply morally and politically? 

Just as Witt says, I am a melodramatic and moralizing writer….I can see the appeal of Witt’s moral stance. But I simply do not find it compelling, especially right now. As a response to an era of endless American war—however legally humane—that has set the world far back, I prefer melodrama. We are no longer dealing with John Yoo, whom we can now see as the advocate of a foregone American tradition of brute and brutal force. Rather, our moral duty is to confront the durable subsequent war of those who successfully pushed back against that tradition in our time, rescuing war from war crimes and placing it on legal footing through seeking (more) legal propriety in its conduct. And I would prefer to be “stunned” by seeing that result challenged and overcome.

Moyn says that he “never” writes history “as anything but politics by other means.” He rolls his eyes at my use of the phrase “real history” and chides himself for having once rashly (or strategically) adopted a similar phrase himself.  His work, he tells us, is a moralizing effort to live up to the moral duties that his politics produces.

If true, this would tell you all you need to know about Moyn’s approach. No wonder his historical conclusions are so confounding.  He doesn’t seem to hold himself to the standard of fitting his accounts to the evidence; instead, he purports to fit his account to the felt imperatives (the “melodrama” in his terms) of the present.  He is playing by different rules.  Actually, it might be worse than that: he claims to be playing by no rules at all save his political agenda.  If at any given moment he seems to be following the conventional metrics of evidence and fit, he tells, us, he is actually behaving strategically: using the guileless criteria of the historian to advance an independently derived political project.

Let’s clear away one reading right away: the theoretical divide here is not one between sophistication, on the one side, and naïve empiricism, on the other.  Of course history is (as Moyn says) “always moral and political.”  The political views of historians and other interpreters shape the accounts they produce, present company included.  Questions of topic, for example, arise out of values brought to the inquiry, not ones derived from it.  Interpretations will inevitably reflect the values of the interpreter, too.  And historical writing enters the world and shapes it as well; it is political in the sense that virtually all writing is political.  Moreover, each of these features of history’s politics are inevitable; everything about the past of historical writing shows us as much. 

But good historians are neither “pretending otherwise” nor subverting their role as historians to do politics by other means.  They work to match evidence to argument because the effort to do so is what vests their work with whatever authority it has.  They have the confidence to think that the evidence they encounter and present will vindicate their moral and political positions – and the modesty to revise those positions if the story turns out to be otherwise.

Moyn’s exhortation to history as politics by other means -- his melodrama and moralizing -- is an alluring but dangerous trap.  Without the effort to connect evidence to argument, the historian is just another culture warrior in a sea of fact-free Twitter hot takes.  Partisan narratives may rally those already inclined to favor them.  But there’s little reason for anyone else to seriously consider such accounts.  (The best history Twitter, it’s worth noting, is worth following precisely because it delivers evidence from the past; witness Woody Holton’s fiery defense of the 1619 Project’s argument about race in the American Revolution.)  Moyn knows this, which is why in his brilliant book, and in the debates around it, he more often writes as if the metrics of evidence and fit are the principal measures of his argument.  His readers will expect such metrics, and Moyn seems to think they are right to do so, because he trots out evidence aplenty for his historical theses.  If in fact he is a semi-secret moralist, as he now says he is, then he should offer a bolder and more general disclaimer.  Without it, he is misleading his readers.

To be sure, the hard-core moralist might not hesitate to lie (though a hard-bitten propagandist would also probably not have confessed).  But at least two more reasons caution against adopting the posture Moyn styles himself as occupying.  The first is that there is almost no reason to think that the academic historian is any good at politics.  Historians’ tactical and strategic judgments about how to advance particular conceptions of the good are dubious at best.  Their training and credentials are in producing knowledge, not in social mobilization tactics.  And make no mistake, there are myriad brutally difficult judgments to be made in trying to achieve political ends.  It would be stunning if Moyn managed to accomplish his ends with little more than the wishful thinking that his temperamental and scholarly inclinations will produce the politics he prefers.  Just as likely (more likely?) his efforts will backfire, dividing and disempowering those closest to his own position, and leaving the field just that much more open for others to exploit.  Or perhaps his efforts to organize a small but devoted group of intellectual historian types will have no political effect whatsoever.  I can’t say which is more likely to occur.  But I bet Moyn can’t either. 

Second (and last for now?), Moyn’s method strangely puts both his tactics and his ends outside the inquiry he ostensibly pursues.  The posture of melodrama is strangely one of no curiosity about the things the writer purports to hold dearest.  The stories he tells, Moyn writes, are driven by moral and political obligations.  But the historical account he presents offers little or no opportunity to consider, evaluate, or revise either the moral project he aims to advance or the tactics he aims to adopt.  If one is merely driven to advance a pre-existing political project, then one won’t learn from the past. One believes what one believes, and that is that.  Such a history will never challenge one’s own expectations and beliefs about what is good and bad, just and unjust.  In this approach, the content and sources of the historian’s political project remain offstage, behind the curtain, even as the project quietly determines the script.   

In the end, I don’t actually think Moyn is a pure propagandist for his politics, his confession notwithstanding.  His actually existing work hews too close to the historical record and relies too heavily on the criteria of historical validity – the metrics of evidence and fit – to be characterized as propaganda.  The problem with Moyn’s account is more prosaic.  It fails by the simple measure of evidence and fit, though its interstitial virtues and provocations are sufficient to make it worthwhile despite the resulting limits.  In this respect, Moyn’s book resembles that of the last great legal-historian provocateur, Morton Horwitz, whose more rigorous adherence to the role obligations of the historian ensured that the value of his work would overflow the confines of his argument.

A due adherence to role of historian is how we express respect for readers, for one another -- and ultimately for our political commitments.  The point holds elsewhere, too.  Moyn observes that when he and I went fishing together last spring we didn’t catch anything.  He urges future historians to do better.  He’s right.  We didn’t, and they should.  But I think Moyn has misunderstood the nature of the activity on which we embarked back in April.  I recall our trip as a beautiful spring morning spent on Long Island Sound, walking out a fragile spit of sand into New Haven Harbor, with nesting Piping Plovers in the dunes, with the quiet rhythm of waves washing on the beach, and with companionship as our buoy.  We went fishing, not catching -- and we’re writing history, not propaganda.

John Fabian Witt is Duffy Class of 1960 Professor of Law and Professor of History at Yale University. You can reach him by e-mail at john.witt@yale.edu.