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 recorda concept that has little utility in an electronic environmentthe 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