Tristram Hunt: In the scales of history

Not content with controlling the present, lawyers are now turning their attention to the past. The global proliferation of truth and reconciliation committees, inquiries into western colonial misdeeds and - with the imminent ratification of the international criminal court - new war crimes tribunals, has encouraged the steady encroachment of lawyers into areas traditionally reserved for historians. Only this week, lawyers defending the Rwandan army colonel Theoneste Bagosora attacked the historical remit of Rwanda's international criminal tribunal; while at a recent meeting of the Royal Historical Society, historians expressed alarm about whether the methods used by lawyers may in fact be undermining a broader understanding of the past.

Historical events, particularly contentious events, should always be seen within their appropriate context. The atrocities of Bloody Sunday, for example, are best understood with a wider appreciation of the Troubles in Northern Ireland, the sectarian prejudices of the British army, and political fears of terrorist insurgency. Tribunals staffed by lawyers, such as the Saville inquiry into the 1972 killings, are usually highly adept at discovering the factual truth - who shot whom, what was hidden where - but can fall down when attempting to explain the more fundamental issues of causation and responsibility. Why something happened; who was responsible; what were the hidden cultural or social triggers - these basic historical questions can be lost within the confines of a courtroom. The focus on a specific event, in a trial or inquiry, can itself alter the historical terrain, elevating the importance of one moment, say, Bloody Sunday, from a broader historical sweep, such as the IRA campaign and internment.

None of this would necessarily matter if the views of truth commissions and tribunals were one opinion among many. Yet their conclusions are often taken as the official truth - despite the fact they often include hearsay and rumour as admissible forms of evidence. Nowhere is this search for historical consensus more the case than in post-conflict societies, such as Rwanda or Latin America, where the rulings of historical commissions are vital in forging a new "national memory". There the truth can be hedged, adjudicated by judges, and signed off by committee for the greater good of political progress. Judge Richard Goldstone, who played a vital role in South Africa's healing process, sees benefits in truth commissions for their ability to "construct an official and irrefutable history of the dark past". But officially sanctioned accounts of the past are something historians usually have good reason to be wary of. Leaving aside Archbishop Tutu's brave confrontation with Winnie Mandela, there were those who thought the South African commission conveniently glossed over some of the ANC's less palatable episodes in the armed struggle against apartheid. The Chilean playwright Ariel Dorfman has also spoken admiringly of truth commissions as "able to establish certain truth in a public way, to become part of official history". This even though Chile's National Commission for Truth and Reconciliation was little more than a pro-Pinochet whitewash.

While truth commissions can force a nation to face its history, however guarded by official authorities, trials of war criminals can close off the past. When one individual is prosecuted for the broader crimes of a state, then with their personal guilt and incarceration the historical slate can be wiped clean. Following Nuremberg, there was scant public debate in Germany about the cultural and political roots of the Holocaust until the late 1970s. If Slobodan Milosevic is found guilty at the Hague war crimes tribunal, few in the Serbian political elite will have the resolve to look into the fundamental ethnic fissures behind the 1990s genocide. By focusing guilt on the single individual, war crimes tribunals skew the historical picture, absolving the broader mass of silent, willing executioners. The trial of the Vichy official, Maurice Papon, gave France even more of an excuse not to look into its dark wartime history of collaboration and anti-semitism.

Lawyers also seem to have a rather naive approach to the discipline of history. In his summing up of the David Irving/Penguin books libel case, Judge Charles Gray accused Irving of being a historian with a "political agenda". Join the club. Where Irving, of course, went horribly wrong was then to "manipulate the historical record in order to make it conform with his political beliefs". Yet in numerous truth commissions and trials, the historian is wheeled in like a forensics specialist in a homicide case. Well, we know how badly forensics can get it wrong. Despite their best efforts at rigorous, objective impartiality, historians bring their own inimitable agenda to a case. Each side can choose their own historian. Where this situation becomes more fraught is when lawyers and expert witnesses have exclusive access to historical documents. With exclusivity comes the closing off of debate and the creation once more of a suspect, legally sanctioned historical past.

There is a deeper concern about the very process of courtroom procedure. Apart from the obvious envy that lawyers are paid £250 an hour to read documents, can the dialectical method of examination and cross-examination really yield a nuanced analysis of the past? Here the lawyers are more bullish. Richard Rampton QC, who led the defence against Irving, sees little difference between the approach of the civil lawyer and the historian. Both are searching for truth on the balance of probabilities. The virtue of the court is that it speeds the process up (three weeks as opposed to 20 years of conferences), exposes mavericks and puts to the test opposing arguments. As Irving found out to his enormous cost, there isn't much room for fudging footnotes in the high court. Michael Mansfield QC, who is involved with the Saville inquiry, regards the two disciplines as complementary, with the lawyer establishing a clear chain of events to which historians can add their own necessarily subjective analysis.

Yet Richard Evans, lead witness in the case against Irving and professor of modern history at Cambridge University, is adamant that the historian should never be involved in questions of guilt or innocence. The duty to establish a proper context for events should never stray into judgment on an individual facing criminal sanction. Conversely, Evans is also worried that the language of the courtroom is now in turn structuring the practice of history. In the study of Nazi Germany, Evans has seen a worrying "judicialisation of history" with legal categories such as "perpetrator", "victim", and "bystander" being applied to complicated social conditions. Such crass categorisation, he believes, is more of an obstacle than an aid to historical understanding. Yet there is little doubt that without the hundreds of courts and commissions of the later 20th century, unearthing mounds of evidence and chains of command, the Nazi history industry would be years behind in its analysis of the Third Reich.

As ever with lawyers, their work seems to be growing. There are calls in France for an inquiry into its crimes in Algeria, many in Holland want a review of the state's actions in Indochina, while Britain has set the pace with Saville and can only put off for so long future commissions into its colonial past. While many of these tribunals will no doubt achieve commendable advances in promoting reconciliation, we should be sceptical about their historical worth.

· Tristram Hunt's The English Civil War: A First Hand Account, is published by Weidenfeld & Nicolson in the autumn.