Fishing, Not Catching, in the History of the Law

Historians in the News
tags: foreign policy, war, human rights, peace, Samuel Moyn

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

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.


Read entire article at Balkinization