CMS150 - Winter 2001

Housekeeping:
read chapters 1 & 2 in Turner
Lecture
Definitions of History:

Ginzburg: Judge and historian linked by shared belief that it is possible to "prove, according to given rules, that x did y: where x may equally well indicate the protagonist (perhaps nameless) of a historic event or the subject of a penal proceeding; and y an action of any sort.

"Positivism": from Novick, That Noble Dream, via Bunzl, Real History
1. There is a fact of the matter about the past that is settled by the correspondence of historical accounts with the past.
2. Interpretation is secondary to facts and facts always trump interpretations.
3. Truth is not position-relative.
4. If history ahs patterns, they are found and not made.
5. The meaning of history is unchanging.

History of use of term "positivism"
_associated with 19th century historiography by critics of 19th century historiography ("he’s just a positivist").
_tends to be history of great men and their events which can be documented
_assumes 19th century types were naïve in their understanding of evidence; limited in the evidence they looked at and types of evidence they put questions too
nb: people who coined the term "positivist" didn’t question that evidence could reveal the truth about the past; just the types of evidence historians limited themselves to and the types of methods they employed to question the evidence

If you’re not a positivist, what are you?
_positivists believe that evidence can tell us the truth about a past
_is Ginzburg a positivist? yes, why; look at his treatment of legal record
nb: he’s much different than 19th century historians re types of questions he puts to legal records and understanding of what truths those records can provide, but he believes they provide a truth?
e.g. anthropological, literary analysis [N.Z. Davis]
_can you be a historian that doesn’t believe that evidence can tell you the truth about the past?
yes: you argue that the questions people put to the evidence tell us more about themselves and their present time than about the past; => the meaning of history changes.

yes: you question whether evidence can tell us a truth about the past because there is no such thing as "evidence."  What we call evidence is an argument a historian constructs each time she writes history.
we can admit there are events but argue that the "description" of them [the writing of history] is inevitably the "construction" of the author. History, in this sense can only occur in the present.

Note Lefebre’s remarks about the "working hypothesis" of the historian:
e.g.: Economic activity of Greek women; Virginia Hunter
But or our purposes:
let us assume with Ginzburg that hisotry can be written.  How?  CG’s answer

Ginzburg notes a prfound divergence in the ways judges and historians work. What is that divergence?
judges always assess the culpability of individuals
historians (esp under 19th century) assessed the actions of groups, collectives, institutions ­ when historians assess individuals, it was biography.

What three obstacles did the technique of "imaginary biography" allow hisotrians to overcome. Give some specific examples of imaginary biography? [Eileen Powells, Medieval People; Natalie Zeamon Dais ­ Return of Martin Guerre]
lack of evidence
lack of importance of subject according to commonly accepted criteria
absence of stylistic models

note: Imaginary biographies still rely on evidence: but they reflect a moment when historians are trying either find new kinds of evidence, or to ask new questions about old kinds of evidence.  However there are still gaps in the evidence [as there are with traditional positivist histories]

How do historians overcome these gaps:
[Eileen Powers method]
1) still have some documentary evidence (e.g. Bodo’s name in the estate books)
2) have evidence from context ; integrate via methods of
historical compatibility:
Bodo would have taken an holiday and gone to a fair
historical plausibility:
Bodo whistled.
Natalie Davis Method
1) documentary evidence from juridical records
a. provide detailed accounts
b. can be supplemented by contextual evidence
c. can be subjected to different methodolgical approaches
d. not as elite specific [especially in early modern European history as other types of sources]
2) context = an array of historically determined possibilities; integreations are conjectures not conclusion
nb: Ginzburg prefers Davis to Powell on methodological grounds [the logic of method] ­ her contextual integrations are logically more persuasive to CG
3) gaps in evidence are revealed in this method
Bodo could have gone to the fair; or he could have used the occasion of the fair to steal from the townspeople’s houses. [we know that we don’t know what the individual Bodo did when the fair came to town; but we can estimate the range of choices available to him]
 

In analyzing Eileen Power's book, Medieval People, Ginzburg notes that the author fills in documentary gaps with the use of elements taken from larger diachronic and synchronic elements. What does Ginzburg mean by the terms "diachronic" and "synchronic"?

diachronic: can place ev on a timeline.  Ev of trial procedure in Rome in 63 different than ev of trial procedure in Rome in 100 [because Rs changed trial procedures during that period ­ changes through time
synchronic: some types of evidence are less subject to time; e.g., structural elements of a trial: accusor, defendant, jury: same regardless of 63 or 100.
 
 
 
 

How does the methodological distinction between historical compatibility and generic plausibility permit Ginzburg to criticize the methods of the judge and prosecutor in the trials of the Calebresi Three?

For judges context comes up in 2 very different ways.
1) "logical" proof [not unlike historian’s q]
2) mitigation of culpability
We mitigate because we share the premise that no act can be punished unless committed by a person capable of exercisig free will.

mitigation is premised on concept of agency [actors are responsible for their acts because they knowingly and willingly committed them]

nb: modern critical theory ["post modernism"] has problemetized question of agency and thus the judicial notion of context

identity is socially constructed
is there agency?
nb: mitigation of culpability where there is no agency is impossible [you would have to have a strict liability approach]

historians, even if they argue that identity is socially constructed and agency is impossible, can still, by describing the process of construction and workings of ideology help us imagine the histories we are trying to study.  Could a judge even accept critical theory premises?

Consider how a historian and a judge would solve the case of the medieval murder
historian:
Bodo probably went to the fair
peasants typically go to fairs
we know there was a fair on the feast of St. Bartholomew in 1427 and we know what happened at it from documentary evidence
we could describe events at fair Bodo would have seen, had he gone
even if Bodo was home with the flu and never went
_we would know what peasants typically expereinced at fairs [Bodo is a type]
_ seems extremely probably that Bodo went to some fair in his life and this description will help us imagine his individual life [synchronistic use of evidenc]

nb: "doubt" in this analysis is easy.  Good historians should note the limitations of the evidence; the, like NZ Davis should acknowledge they offer only possibilities.
judge
Bodo probably went to the fair
We know (from doc ev) there was a murder at the fair.
Bodo is a suspect.
the logical leap in this contextual integration effectively shifts the burden to Bodo to prove he was home with the flu
modern liberal consensus is that burden should be on government

if judges use context other than to mitigate culpability, i.e. for logical proof, than innocent people will be condemned.  The harm historians can to do to Bodo if indeed he had the flue is limited.  Ginzburg argues that the harm judges do is irreperable.

doubt in this analysis is hard
modern liberal standard (according to CG: in dubio pro reo)
a doubt however small
US jury instructions: beyond a reasonable doubt

Ginzburg offers as an alternative to the principle in dubio pro reo the fascist principle, in dubio pro republica. Why?
for rhetorical purposes
 

What issue did the United Penal Section of the Italian Supreme Court decide in it's review of the Milan appellate court's trial of the case? definition of term corroboration

1) refers to facts which directly attach to Defendant re specific crime of which he is accused. ­ nb pre-modern historians could never use this standard
2) need not conern actual crime because they only serve to confirm independent reliability of accusor.  i.e., can be "logical" not direct evidence ­ nb: historian’s contextual evidence

If you wanted to argue that the trial of the Calabresi Three was a political trial, how could you use the appellate history of the case to support your argument?
suicide verdict
unwillingness of either prosecution or defendants to compromise
generates explosion of other social activity [e.g. plays, books]
appellate enounciation of standard in abstract; refusal to apply
cf Bushv Gore [this rule applies only in this case]