Common Precedents: The Presentness of the Past in Victorian Law and Fiction

The mid-Victorian period may be understood as an age of legislative reform during which advocates of positive law sought to replace the diffuse practice of the time, common law, with new, more empirical protocols. Common law, however, survived the challenge.

It did this by asserting its present legitimacy via relevant precedents from the past, a logic that in turn provided a powerful, highly desirable strategy to help English maintain their sense of common identity. While precedent originates in law, Ben-Yishai argues, precedential reasoning as a strategy for managing change produced innovations in legal and fictional writing simultaneously and in a mutually constitutive manner, constituting a sophisticated mechanism for negotiating commonality over time.

Ben-Yishai, a lawyer and literature professor, looks at "anti-narrativity" in law reports as evidence of legal writers' efforts to negotiate between the new positivist understandings of law and case law's traditional, continuity-seeking approaches.

She traces the importance of precedential reasoning in Middlemarch, as both a thematic and didactic element. Anthony Trollope's The Eustace Diamonds is viewed as a narrative reasserting the traditional communitarian power--once enshrined in the jury trial and still evident in gossip and rumor--to define fact, probability, and social norms. And, finally, Ben-Yishai sees Wilkie Collins's The Woman in White as a book that explored the challenge faced by newly empowered classes to represent past precedents to legitimate their otherwise illegitimate status.

Rather than offering a conventional interpretation of the cross-fertilization of literature and law, then, the book's argument insists upon a key feature of common law, that longstanding basis of English identity, as permeating both legal and literary narratives of the present by re-narrating the past. Her argument will be of interest to literary critics and historians of the Victorian period, as well as legal and literary scholars working in the field of law and literature.