Law Historians' Fallacies

Abstract

A common line of attack against originalists is that lawyers just aren’t good at doing history. But in his famous book Historians’ Fallacies, David Hackett Fischer noted that many historians aren’t good at doing history either: They often fall into one or more of numerous fallacies that he catalogued in his celebrated and often devastating three-hundred-page book. This article points out the many ways in which originalists and other legal historians fall into, but also how they may avoid, some of the same fallacies committed by the historians whose works made their way into Fischer’s book. It will then point to corresponding lessons that lawyers-turned-historians ought to employ to write better history. The belief is that lawyers, judges, and legal academics can become good—or at least better—historians.

Part II confronts two general attacks on the use of history, both of which challenge the possibility of obtaining relevant and objective historical knowledge. Part III establishes the importance of investigative questions and describes fallacies of question-framing that lead originalists astray. Part IV explores fallacies of factual verification that stem from reliance on flawed types of evidence. Part V addresses one fallacy of factual significance—which we shall call the originalist’s fallacy—that leads some originalists to misunderstand the significance of certain evidence. Part VI illustrates fallacies of narration, including fallacies of anachronism and presentism, that too often create fruitless investigations and provide ahistorical answers. Part VII, although recognizing the importance of generalization, demonstrates how originalists (and other legal historians) often generalize improperly.

Keywords: Originalism, Legal History, Historians Fallacies, Methodology, Historical Methods, History