Lessons learned from the Traces of Law Symposium

By Aura Kostiainen, a visiting PhD candidate from the University of Helsinki

What happens when a lawyer or a social scientist goes to the archives? A growing number of legal scholars and social scientists, or socio-legal researchers, are becoming enthusiastic about archival research. There are, however, some challenges and pitfalls while doing it, which sparked Andy Aydın-Aitchison, Laura Wise (University of Edinburgh) and their colleagues in the Scottish Centre for Crime and Justice Research to organise a two-day event around the theme. The symposium and workshop faced these challenges bravely, with deep thought and with just the right amount of humour and empathy. As I too often feel a bit of an outsider, being so cross-disciplinary, I eagerly signed up.

There were three overlapping and intertwined themes which formed a red thread through the two-day event. The first theme dealt with research ethics when doing archival research, the other the research process itself, and the third with hands-on practices while doing it – all entwined with the interdisciplinary challenges the researcher faces when combining archival research with the social scientific or legal approach –in ethical, theoretical and practical terms.

Ethics in archival research

The first keynote speaker, Jelena Subotic (Georgia State University), gave an excellent presentation on the ethical challenges a political scientist faces while doing archival research. These challenges stem from the different traditions of historical and social scientific research. What in political science seems like the only right thing to do, stands out as outrageous when taking into consideration the historical context of the research subjects.

As an example, Prof. Subotic told stories of concentration camp victims and perpetrators. In social sciences, the sources are usually anonymised, but from the point-of-view of holocaust victims, that would be to reduce them to numbers once again and thus do them a great injustice. Dr. Jackie Gulland (University of Edinburgh) had faced similar problems while trying to decide whether to anonymise the names behind appeal cases related to social security benefits.  What the historical tradition teaches us is that there is no one-solution-fits-all fix to the ethical dilemmas, but they are always dependent on the context.

Another ethical question has to do with the archives themselves. Archives are places of power: someone has collected them and decided what is important enough to be taken in, and what is to be left out. Furthermore, the documents themselves are often produced by formal procedures entangled with asymmetrical power dynamics. The producers of the documents are people of power documenting beneficiaries, offenders and victims. Thus, an archive is by no means an innocent collection. One must be very careful in order to avoid doing more harm to the subjects, their families or their descendants that has already been done – even if the subjects themselves were already deceased.

The research process – dealings with the past

Some of the speakers, including Andy Aydın-Aitchison and Thijs Bouwknegt (Institute for War, Holocaust and Genocide Studies, NIOD), reflected on the similarities and differences of the research and legal process, upon the traces of which the research is built. It is important to notice that the legal process has its own logic and goals, and those are not necessarily the same as the researcher’s. Like history research, trials are also dealings with the past. It is an often-quoted statement among historians that it is not the researcher’s task to judge, but to understand, while the question of the (accusatory) criminal legal process is binary: is the accused proven guilty or not. Elma Demir (Goldsmiths University) also pointed out an important thing: it may be the case that the people involved in trials do not feel that justice is served at all! The understanding of justice may not be the same among legal professionals and lay people; the words and thoughts of the people involved might not fit into legal categories; or the trials might end up renewing the narratives that started the violence. What is the ethical task of the historian, when justice is not being served by the trial process?

At the same time, the goal of the historical research differs also from that of the social sciences: historiography appreciates the unique and strives to look at the past in its own terms, while social sciences often aim at finding generalisations and solutions to today’s challenges or at least questions that are relevant today. They also often have a different approach to the relationship between theory and empiria: historiography is prone to be data-driven and inductive, while social scientists approach the data from the perspective of pre-formed theoretical approaches and concepts. These differences may often cause misunderstandings and even rivalry or bad blood between the proponents of the different traditions. While social scientists may see historians as non-scientific or non-reflexive, historians, on the other hand, might deem social scientists as simplifying, reductive and disrespectful towards the nuances of the historical situation. In the undersigned the attempt to fit these two traditions has sometimes led to insecurity – sometimes even despair – both before the vastness of the theoretical literature and the archival material at hand.

Hands-on problems: lost in the archives?

In my opinion, there is some truth to the claim of the non-reflexivity of the historiography tradition. The Finnish political history professor Kimmo Rentola has compared historical research to building a house: after the project is finished, the scaffolding (aka the methods and theoretical building blocks) are taken away. This does not help a novice history researcher or a scholar coming from another field to understand what they should actually do while building their research design and starting their work in the archives.

A good amount of time at the Traces of Law event was spent discussing the challenges posed by the archives themselves, especially those dealing with international criminal tribunals. Iva Vukušič (Utrecht University) captured the dilemma aptly: ICTY (International Criminal Tribunal for Former Yugoslavia) archives: Treasure chest and/or bottomless pit?

While state representatives have an obligation to publish some of their material, international bodies, such as crime tribunals, do not necessarily have similar obligations. This makes the researcher’s work difficult. What to do if all the material is censored? On the other hand, one may be at risk of drowning in the material if the corpus is very vast. How to tackle these questions?

A clear research question is always a good start. Also, it is important to familiarise oneself with previous literature and have at least some insight into the “pit” one is getting oneself into. On the other hand, the hermeneutic tradition allows some freedom in the formulation of the research design, and the questions may also change during the research process. At the same time, historical research might make good use of the practical research manuals of the social sciences in terms of approaching, sorting, analysing and labelling data and keeping a research diary as the ethnographers do. A neglected approach to obtaining documents for study within the social sciences is using Freedom of Information legislation, as discussed by Elizabeth Barkas (University of Glasgow). Though the ‘archive’ yielded through such an approach can be undermined by redactions, gaps, and the time-consuming nature of obtaining such releases, FOI raises the possibility of conducting research on subjects of contemporary interest.

Traces of Law left behind a group of inspired scholars who, I am sure, will continue to collaborate on these questions and develop something fruitful in the future. There is so much to learn from lawyers, social scientists, and historians alike.

to the archives
The author also sometimes faces the challenge of balancing between theory and practice

 

Aura Kostiainen is a visiting PhD candidate from the University of Helsinki. She will spend Spring 2019 in Edinburgh. She gave a presentation at Traces of Law on her PhD project on the ideological and conceptual foundations for the Finnish crime policy and criminal law laid by the Finnish Criminal Law Committee in the 1970s.