Judicialising history or historicisng law: reflections on Irving v Penguin Books and Lipstadt
Authors: O'Donnell Therese 
Published: July 2021

In 2000, David Irving brought a libel action against Professor Deborah Lipstadt and Penguin Books focusing on allegedly defamatory allegations in her book Denying the Holocaust associating him with the Holocaust revisionist movement. The case concluded in April 2000 with Irving’s defeat. By focusing on Irving’s methodological technique, the defendants succeeded in establishing that Irving’s misrepresentations and falsifications were neither accidental nor careless but ideologically motivated. His character was presented and censured as one which manipulated and distorted in order to facilitate a racist agenda.

Presiding judge, Mr Justice Gray was keen not to pollute the exercise of justice by acting as a quasi-historian, nevertheless Irving sharpened the focus on the relationship between historians and courts. Can history migrate from the amphitheatre to the witness box and re-emerge with its integrity intact? Historians are increasingly called as expert witnesses and this has resulted in huge controversies, intra-historian strife and debates on experts’ ethics. Thus, despite this article’s mooring in a Holocaust context, it raises questions relevant to the much wider context of history and law, and as regards “public history”. Law and history will meet continuously during litigation. Judicial and historical understandings of evidence should not be either intuitively or automatically elided and even a Holocaust context should not conquer the quest for a mutually self-aware relationship. Without engaging in endless discussions concerning the nature of knowledge and the philosophy of history, judges require standards for assessing the weight of historical evidence to ensure “intellectual due process” and that, evidentially at least, legal conclusions are sound. How can historians best facilitate the legal process and how can lawyers avoid mistranslating historical work? A legally created standard (such as Mr Justice Gray attempted) for expert evidence appears attractive. Admissibility or reliability tests are options and open up issues such as bar-appointed experts and expert ethical codes. Ultimately, the quest is not to crowbar unwilling historians into roles as mere judicial handmaidens, but instead to recognise wider societal contributions of historians and to give due credit to the 'reasonable historian'.

When historians appear as expert witnesses, they are not 'doing history', they are communicating historical expertise in another forum. Such cross-pollinating communication or 'public history' is a process of translation. Undoubtedly, law is the dominant discipline in court and history is being instrumentalised. However, with due care, such interactions need not distort complex historical studies or restrict future historical research. Disciplinary faithfulness can be preserved by legal reliance on historical guild-standards. In this way, standards regarding intellectual rigour and methodological integrity are safeguarded and notions that there is one history for historians and another/lesser one for courts are avoided.