Common Precedents: The Presentness of the Past in Victorian Law and Fiction by Ayelet Ben-Yishai (review)

In his companion essays “Bentham” and “Coleridge,” John Stuart Mill famously juxtaposes these “two great seminal minds” in order to discern accurately the contributions of each to the formation of the nation (“Bentham” 468). Although they are not mentioned in Common Precedents, Mill’s essays reveal what Ayelet Ben-Yishai labels as “precedential reasoning” (5) in action on at least three levels simultaneously. First, they establish Bentham and Coleridge as cases “by which a comparable subsequent act or event can be recognized” (Ben-Yishai 5). Second, they establish a Coleridgean genealogy for the Victorians’ tendency to approve of opinions and institutions of “longue durée” on the basis of “the very density of time passed” (Ben-Yishai 11). Third, in judging Coleridge’s conservatism superior to Bentham’s utilitarianism when considered as a “philosophy of government” (“Coleridge” 293), despite Mill’s own biographical and intellectual affiliations, they gesture toward a “negotiated commonality … a key strategy for managing change and for the construction of a common culture” (Ben-Yishai 7).

According to Ben-Yishai, this strategy of precedential reasoning is both exemplified by and culturally grounded in the resilience of England’s common-law tradition, which in the nineteenth century reasserted itself in the face of an increasingly heterogeneous legal system and repeated calls for positive law reform through parliamentary statute. As she argues, “the significance of legal precedent, its controversies, and convoluted narrative form was not limited to the law. In fact, the impact of precedent extended beyond legal practices and institutions to have a significant effect on the culture at large” (9). Part 1 of Common Precedents, consisting of a single lengthy chapter, deftly historicizes the evolving significance of legal precedent in England, from “a convention that was evidence of custom” to formal cases “regarded as rules made by judges” from the bench (37). For a judgment about a particular case to become a general rule with determinate force of law, however, required its publication and strategic abstraction through the medium of the law report. Written by third-party barristers and sold back to the legal profession by for-profit publishers, law reports were written in “an antinarrative style” in which proper names were replaced by the legal roles of “plaintiff” and “defendant,” the past tense abandoned for the present, and actual courtroom dialogue rendered as a list of unexplained precedents cited by both sides (51). Ben-Yishai’s fascinating close reading of the form of the law report assumes broader significance by contrast with the prevailing standards of “fictionality” in the realist novel: “Antinarrativity is thus not only a reflection of a response to the legal culture of precedent, it is also an active negation of novelistic discourse” (56).

Novelistic discourse itself assumes centre stage in part 2 of Common Precedents. Over the course of three chapters focused on George Eliot’s Middlemarch (1871–72), Anthony Trollope’s The Eustace Diamonds (1871–73), and Wilkie Collins’s The Woman in White (1859–60), respectively, Ben-Yishai “examines the nature of realist fictionality, arguing that the probable of realist fictionality is indebted to a communal as well as an empiricist epistemology” (16). Ben-Yishai’s reading of Middlemarch shows how Eliot’s narrator “deploys precedential reasoning so successfully that it is ultimately presented as inevitable,” while Eliot’s characters struggle within their perspectival limitations to understand their individual presents in terms of a common past and probable future (91). Ben-Yishai approaches The Eustace Diamonds as “a privileged site for continuing [her] investigation into the commonality on which the legal culture of precedent is predicated” (117). Focusing specifically on the novel’s central legal dispute over heirlooms, Ben-Yishai reveals how the precedential reasoning of heirloom law structures Trollope’s fictional grounding of facts not in empirical observation but in communal standards of truth. Ben-Yishai’s fourth and final chapter interrogates the notion of (il)legitimacy as...