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Trusting Records: Legal, Historical and Diplomatic Perspectives
By Heather MacNeil. Dordrecht, Boston, London: Kluwer Academic
Publishers, 2000. xiv, 163 pp. Bibliography. Index. Available from the
Society of American Archivists, $65.00 members, $75.00 nonmembers. ISBN
0-7923-6599-2.
Review essay published in American Archivist (Vol.
65, No.1, Spring/Summer 2002)
In 1945 Margaret Cross Norton remarked, "It would be profitable
and interesting, if time permitted, to compare the lawyer's methods of
appraising veracity of the contents of documents with the historian's."
While time never did permit Norton herself to undertake such a study,
Heather MacNeil's recent book, Trusting Records, does exactly that.
The book is a revised version of the doctoral dissertation that MacNeil
completed at the University of British Columbia, where she now serves
as assistant professor at the School of Library, Archival and Information
Studies. Those who have followed the work on archival studies at UBC in
recent years will find many familiar concepts in this monograph; those
who are interested in digging deeper will find the endnotes and bibliography
quite helpful.
MacNeil tells a story of the "complementary relationship" between
the development of principles and the methods for determining record trustworthiness
in law and history from the sixth century to the present. In chapter 1,
she begins with a description of the Justinian Code, with its dual concepts
of perpetual memory and public faith. The former had to do with fixing
the content of records in a way that would ensure their "continuity,
stability, endurance, and trustworthiness," while the latter was
ensured by preserving records in an officially recognized public place.
Documents that were deposited in a public archives were given a special
proof value that "private instruments" did not have. Widespread
forgery, however, demonstrated that archival custody was not, in itself,
sufficient to ensure the veracity of documents. Formal procedures of attaching
seals, requiring witnesses, imposing punishments for forgery, and conforming
to legally prescribed documentary forms gained increasing prominence.
According to MacNeil, this trend continued through the Middle Ages, with
official seals and notaries both playing important roles.
MacNeil reports that the twelfth and thirteenth centuries saw major efforts
to "supplant irrational means of proof with rational ones and to
transform judicial proceedings into rational investigations of the truth
of conflicting allegations" (p. 7). The Renaissance is characterized
by the concept of historical difference and the need to understand documents
in their original context. Many documents were exposed as forgeries, based
on "cultural anachronisms, linguistic discrepancies, and geographical
oddities" (p. 11). One famous example is Lorenzo Valla's debunking
of the Donation of Constantine. Scholars in the next few hundred years
contributed numerous additional refinements to standards of good historical
research. MacNeil's account of this period is largely one of increasing
skepticism toward the veracity of individual documents.
A major turning point in MacNeil's story is Jean Mabillon's introduction
of "the new science of diplomatic" in the late seventeenth century.
Mabillon "looked at the document conceptually as embodying a system
of both external and internal elements consisting of acts, which
are the determinant cause of documentary creation; persons who
concur in its formation; procedures, which are the means by which
acts are carried out; and the documentary form itself which binds
all the elements together" (p. 21, emphasis in original). MacNeil
argues for a strong connection between the notion of evidence implied
by Mabillon's diplomatics and epistemological writings by empiricists
of the time, such as John Locke. Both supported the view that one's degree
of confidence in the truth of a statement should be based on the strength
of the evidence in support of that statement. MacNeil argues that this
tradition strongly influenced eighteenth- and nineteenth-century legal
evidence scholarship and nineteenth-century historiography. In both cases,
she emphasizes what is effectively a propositional epistemology, i.e.,
belief that knowledge is based on the identification and justification
of specific statements about the world based on empirical evidence and
chains of logical inference.
The second chapter of the book focuses on common law rules of evidence.
MacNeil explains that, by the eighteenth century, "jurors [in England]
were no longer the main witnesses to the facts in dispute and so courts
could no longer rely on the authority of their personal knowledge"
to render verdicts (p. 32). This made rules about the admissibility of
testimonial and documentary evidence increasingly important. She contrasts
this with civil law jurisdictions on the Continent, which were expected
to follow more specific, formal procedures for weighing the probative
value of each item, and thus had less concern about the admission of potentially
misleading evidence.
MacNeil explains that the increasing introduction of documentary evidence
into common law courts created a tension with the hearsay rule. Under
this rule, a person testifying in court must be subjected to confrontation
and cross-examination. If Alice witnessed a crime and told Bob all about
it, it is not acceptable for Bob to then testify on behalf of Alice in
court, because this would not allow the disputing parties to accurately
critique and clarify the details of Alice's story. They could only find
out the limited details of the account that Alice conveyed to Bob. Using
documents as evidence of Alice's activities or experiences is also problematic,
since documents cannot answer questions posed to them. The legal system
must, therefore, offer some exceptions to the hearsay rule if documents
are to be admitted as evidence. The two conditions that they should meet
are probability of trustworthiness and necessity.
MacNeil explains the business records and the public documents exceptions
to the hearsay rule. The rationale behind the first exception is that
a business record will tend to be reliable, since those creating the records
depend on the regularity and accuracy of the "habit and system"
for creating them, errors will generally be detected in the "regular
course of business transactions," and employees do not want to risk
the "censure and disgrace" of their supervisors as the result
of creating inaccurate records. During the twentieth century, many of
the traditional requirements for satisfying the business records exception
have been dropped. MacNeil cites a Supreme Court of Canada case from 1970,
for example, which eliminated the requirement that an individual must
be deceased in order for a document to be used in place of her testimony
and allowed for the admission of records expressing opinions, provided
that the opinions "fall within the declarant's normal scope of duty."
On the other hand, MacNeil also provides examples of case law that have
defined important boundaries on the applicability of the exception. The
public documents exception, which MacNeil only mentions briefly, allows
for the admissibility of records created by public officers in pursuance
of official duties. She also describes provisions for authenticity, such
as the ancient documents and best evidence rules. She points out that
these rules are subject to significant limitations, based on the inconvenience
or risk that they might impose.
MacNeil argues that courts are still struggling to determine how best
to apply the best evidence rule to electronic records, often with inconsistent
results. She describes the Uniform Electronic Evidence Act of 1998 in
Canada as a recent attempt to clarify such issues. Instead of providing
for the physical original of a record—a concept that has little utility
in an electronic environment—the UEEA focuses on the integrity of
the electronic recordkeeping system as a whole. The model legislation
does not endorse any particular industry standard, but instead relies
on the ability of the legal adversarial process to expose potential recordkeeping
concerns through cross-examination. MacNeil is skeptical of such an approach,
since she does not think it will lead to the production of the "epistemically
best evidence."
In the third chapter, MacNeil provides her characterization of modern
historical methods. While recognizing that there is no single canonical
concept of historical proof, she does argue that "there are certain
generally accepted procedural checks and controls" that guide historians.
Her primary argument is that many of the same standards that hold for
legal evidence also hold for historical research. In both cases, for example,
there is a preference for primary sources, which are "most nearly
immediate to the event itself." MacNeil contends that both arenas
also rely heavily on constraints that have been built into organizational
recordkeeping systems and ensure greater reliability. "The bureaucratic
controls exercised over observation and recording constitute, in effect,
an additional level of observation in which the bureaucracy itself watches
over observers and recorders." MacNeil describes several critiques
of positivist epistemology, but ultimately concludes that postmodernism
suffers from "a rather simplistic assumption that the relationship
between evidence and reality is a straightforward one" (p. 71) and
does not have much effect on the actual practice of history. She takes
more seriously the "practical challenge" introduced by electronic
records, which often lose important elements of context and appearance
when not managed appropriately.
MacNeil gives considerable attention to two prominent U.S. court cases
related to electronic records: Armstrong v. Executive Office of the
President and Public Citizen v. John Carlin. The cases involve
disputes over the essential characteristics of electronic records, and
whether reliance on a print-to-paper policy is sufficient for preserving
and providing access to records. MacNeil is critical of the plaintiff
in both cases, since she believes they focus too heavily on the "live"
versions of records as they exist in their original creation environment,
rather than insisting on appropriate recordkeeping systems. She is also
critical of the National Archives and Records Administration's position,
since it "underestimates the extent to which the technological context
in which electronic records are originally created and used may contribute
to their completeness" (p. 83). MacNeil once again lays blame on
the adversarial system of legal decision making, which "can be antithetical
to meaningful dialogue." (Readers might then wonder what to make
of MacNeil's own considerable reliance on case law as sources throughout
the rest of the book.) Instead of relying on the strategically chosen
positions of parties to specific legal disputes, we should attempt to
definitively characterize "what constitutes a reliable and authentic
record" in general.
The fourth chapter provides the punch line to MacNeil's story. She advocates
diplomatics as the solution to modern recordkeeping problems and cites
the University of British Columbia project entitled "The Preservation
of the Integrity of Electronic Records" as an important move in this
direction. According to MacNeil, diplomatics allows us to identify "eight
fundamental components of an electronic records, i.e., medium, content,
physical form, intellectual form, action, persons, archival bond, and
context" (p. 91). She presents an extremely demanding and daunting
"ideal" procedure for how these considerations are to be integrated
into a recordkeeping system. She quotes Luciana Duranti's statement that
"the more rigorous and detailed the rules, the more established the
routine, the more reliable the records resulting from their application
will be" (p. 101). An ideal recordkeeping environment would thus
be a depersonalized Weberian bureaucracy, with an unambiguous authority
structure, rationalization of offices, specialized labor, and highly formalized
rules, policies, and procedures.
From a theoretical perspective, I have reservations about several points
in MacNeil's book. Her account is based on the triumvirate of rationalist
thinking about legal evidence, modernist historiography, and a strictly
Weberian model of bureaucratic organizations, all three of which have
been called into question in recent decades. At a higher level of abstraction,
she ties diplomatics to a very specific ontological view that assumes
a world composed of objective events and an epistemological view that
seems to base knowledge on the truth value of declarative statements about
those events. This seems like a great deal of intellectual baggage for
one to take on simply to engage in discussions about the management and
preservation of records.
I would have also appreciated a somewhat more inclusive historical account
of document creation and retention practices. From at least the medieval
period to the present, collections of artifacts have played a significant
role in forming the identity of the collector, not just documenting activities.
Such artifacts increasingly included written materials. MacNeil emphasizes
that the move from state to individual custody called for new forms of
evaluation of documents, based on specific intrinsic and extrinsic elements.
What she does not emphasize, however, is the change in meaning that such
distributed custody implies. Rather than seeing records as simply instruments
of the state, we must recognize that that are created and retained for
a variety of reasons. Making meaning of historical documents requires
an understanding of not simply juridical context but also the personal,
social, political, spiritual, and symbolic context in which those documents
played a role. It would seem that MacNeil's advocacy of diplomatics neglects
many of these issues in order to get at a single, definitive definition
of the record. She says, "By decontextualising and universalising
all the elements of documentary creation, Mabillon established a methodology
for determining the authenticity of documents across juridical systems
and over centuries" (p. 21). This would seem to run counter to most
contemporary historiography, which suggests that no such universal methodology
is possible.
From a more practical perspective, I would also take issue with several
of MacNeil's arguments about how best to approach electronic records.
First, I believe she often draws too sharp a distinction between original
source systems and the records they contain. Preservation of digital objects
must be sensitive not only to elements of context and simple appearance
(e.g., font size, color) but also to a wide range of functional and behavioral
characteristics that are embedded in the original hardware and software
environment. While it is important to ensure the integrity of record copies
of documents, this does not mean that we must completely abandon the "live"
systems in which they were created or received.
My second concern is one of general strategy. It would seem that carrying
out the sort of recordkeeping that MacNeil advocates would involve business
process reengineering on a massive scale. Organizations would need to
reconceive of all their activities in terms of juridical systems, acts,
persons, and forms. They would need to undertake a hyperrefined analysis,
based on terminology and distinctions that are completely unfamiliar to
most archivists, let alone business managers, software developers, information
technology administrators, or auditors. This would include such efforts
as breaking "each procedure down into six phases, i.e., initiative,
inquiry, consultation, deliberation, deliberation control, and execution"
(p. 99). While I strongly agree that archivists and records managers must
be more actively involved in the design and implementation of new systems
and policies, I am quite skeptical about the approach that MacNeil advocates.
Buy-in is a major concern, since MacNeil provides no indication of what
business or performance advantages would be gained by an organization
that adopted diplomatics. In fact, there is considerable literature on
the disadvantages of trying to implement systems that assume rigidly defined
procedures and require users to explicitly declare the intent of all statements.
Genres of communication and documentation have fuzzy boundaries and are
constantly evolving. Assuming otherwise leads to bad design decisions
that hinder, rather than assist, the work of users. It also threatens
to remove from recordkeeping systems one of the most cherished elements
of historical scholarship, the intentionality and voices of human beings.
Christopher A. Lee
University of Michigan
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