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 ndisputably, understanding the present in terms of the past was a Victorian habit of mind. And like Mr. Brooke in Middlemarch, most Victorian writers and politicians favored reform "up to a certain point," that is, insofar as it maintained continuity with their understanding of the past. These tendencies have been variously explained. George Landow saw them in terms of Biblical typology, Gillian Beer linked them with evolutionary thought, and with respect to George Eliot, George Semmel focused on inheritance. From the perspective of law and literature, Ayelet Ben-Yishai identifies another impetus for this Victorian habit: what she calls "precedential reasoning."

This approach accounts for what is peculiarly English about interpreting the present by re-interpreting the past, namely, its relation to English common law. Common law shapes English identity, as many scholars following J.G. Pocock have argued, and precedent is fundamental to the operation of common law. But Ben-Yishai convincingly demonstrates the special salience of precedent in the nineteenth century. Novel political and economic circumstances — to say nothing of the sheer volume of common law cases — exerted pressures on precedent, both theoretical and practical. Devising new discursive forms to articulate and disseminate precedents went hand in hand with a newly robust jurisprudence of precedent, which responded to Benthamite positivism. By analyzing these new discursive forms, specifically law reports, Ben-Yishai shows how distinctive features of narrative temporality in these reports came to interact with realist fiction. From among the myriad of judicial decisions or "holdings," law reporters chose those that reinforced their sense of precedential continuity. What is more, they anticipated how new holdings might serve as future precedents, thus exemplifying "the presentness of the past." Similarly, George Eliot, Anthony Trollope, and Wilkie Collins each show how Victorian novelists sought to manage competing interests and shape future reforms by constructing narratives of continuity, stories in which reform seems the logical outgrowth of longstanding English values held in common.

Ben-Yishai's first chapter explores how precedent took material and narrative form in law reports. Combining the intricacies of legal history with detailed analysis of rhetorical style, she demonstrates how these reports sought to create the illusion of continuity by mediating between the new and the old: between empiricist and positivist understandings of law, on the one hand, and traditional approaches to precedent in case law (stare decisis) on the other. Though law reports may strike literary scholars as arcane, they are a defining feature of common law in the nineteenth century. Having distinguished in her introduction between case law and statute law, Ben-Yishai stresses the idiosyncratic if not haphazard fashion in which case law judgments were recorded. Since the legal history of our own time and place includes verbatim trial transcripts and written judicial opinions, we must realize that in nineteenth-century England, the difference between lex scripta (typically statutes) and lex non scripta (judgments in case law) was literal — that is, case law judgments were oral, not written.

Among written records of case law, Ben-Yishai outlines three kinds: records, law reports, and newspaper reports of court cases. Since the Middle Ages, a court official had recorded court actions by stating briefly the most fundamental details of a case (date, court, judge, plaintiff, defendant), the motions, and the court's decrees. Neither narratives nor published texts, they each documented what a judge had ordered the parties in a case to do. But from the eighteenth century, newspapers published their own reports of scandalous or politically noteworthy cases. By contrast with the terse court records, many newspaper accounts were marked by narrative excess. What is more, since legal professionals consulted the reports published in the Times, their unreliability was itself a legal scandal. In large measure, then, law reports emerged to give legal professionals more reliable information. Nevertheless, these reports were not commissioned by the court, but were for-profit private enterprises, authored by and sold to members of the legal profession. While law reporters sometimes consulted with the judges whose decisions they were reporting, the mere act of choosing some cases rather than others gave the reporters considerable power. By avoiding "bad cases," and by choosing cases that made sense of the past and might guide the future, they entrenched the force of precedent and thus created a coherent history of English common law.

At the same time, to forestall the effect of fiction in their reports and thus distinguish them from both newspaper reports and the increasingly influential realist novel, law reporters created what Ben-Yishai calls an anti-narrative style. While writing new cases into a meta-narrative of historical coherence, they avoided telling anything that happened outside the courtroom. That is, rather than re-creating the events and actors that gave rise to a case, they narrated only the trial itself, in language replete with its specialized terms and rules, repetitive and formulaic phraseology, and abstracted principles. By thus producing a counter-narrative, law reporting challenged the authority of realist fiction to posit a future that logically followed its construction of the past. Simultaneously, law reporting swerved from fiction by ignoring any empirical reality outside the court. Through detailed readings of several law reports, Ben-Yishai shows how they enact a tension between narrative and anti-narrative impulses. Thus, Ben-Yishai argues, the "counterintuitive form of law reports" reflects "the unrelenting temporal and communal tensions facing English society and culture, tensions with which the doctrine, practice, and figure of legal precedent were trying to contend" (57). These tensions inform Ben-Yishai's subsequent chapters on Middlemarch, The Eustace Diamonds, and The Woman in White, which show in various ways how narratives could be shaped by precedential reasoning.

Since Middlemarch affords Ben-Yishai her most compelling, but also potentially most problematic case, I will treat her chapter on this novel in greatest detail. By setting a novel that was written immediately after the second Reform Act (1867) in the years immediately preceding the first (1832), Eliot trumpets the importance of legal precedent. Precedential reasoning, Ben-Yishai shows, also educates readers to compare competing precedents and modes of interpreting precedents in order to enable political and personal reform. In this way, Eliot critiques both radicalism, which demands a break with the past, and conservatism, which accords undue authority to a selectively remembered history.

As Ben-Yishai explains, the novel brims with characters whose development rests on their ability — or failure — to identify appropriate precedents and interpret them correctly. Mr. Brooke continually seeks a guiding precedent and comically settles on the wrong ones. Indeed, in adducing the Pitts — Elder and Younger — Brooke unwittingly reminds us that the politics of one generation may be rejected wholesale by the next. Ladislaw's confidence in his power of self-determination must be tempered by a proper acknowledgement of his past. The novel thus implies that radical Benthamite jurisprudence, which sought to wipe out an oppressive past by establishing positive law, had to accommodate a legacy of collective wisdom enshrined in common law precedent. Yet while Ladislaw anticipates that revelation of his grandfather's shady business will aggravate the suspicion already provoked among Middlemarchers by his Polish ancestry, he denies the moral significance of heredity, maintaining that his blood is "free from the taint of meanness." By contrast, Casaubon devotes his life to a past he conceives as dead.

Ben-Yishai likewise contraposes Rosamond Vincy to Mary Garth. While Rosamond constructs an illusory future on the basis of false precedents drawn from romance novels, Mary Garth demonstrates the antidote to Rosamond's errors by ironically adducing literary precedents for her relationship with Fred. With Mary Garth, then, Eliot models a critical method for evaluating possible precedents. Like the law reporters, she throws out "bad cases." Unlike law reporters, however, she is guided not by expert knowledge but by common sense, formed by critical comparison of experiences in the present. Consequently, Middlemarch improves on law reports by wholeheartedly embracing common experience as fundamental to what gives precedent its social force.

Since any reading of Middlemarch must address Dorothea, however, Ben-Yishai closely examines her anxious response to the reading of Casaubon's will. Whatever precedents she thought might have guided her future — such as Milton's daughters — are cast into a new light by the revelation of her dead husband's jealousy. Faced with the challenge of reinterpreting her present in light of her husband's unanticipated version of her past, she must "wait and think anew." She is described as undergoing a metamorphosis, which — as many critics have noted — is a powerful metaphor for Eliot's methods of narrating change. Ben-Yishai's analysis of precedential reasoning thus seems to confirm that for Eliot, reform requires a re-narration of the past — not merely new precedents, but new ways of interpreting precedents — to chart a course forward.

Still, the salutary attention Ben-Yishai draws to precedent in Middlemarch left me with some unanswered questions. The novel opens — and closes — with St. Theresa. Though offered as a precedent for Dorothea in the first paragraph of the Prelude, she is withdrawn in the second because the present lacks the "coherent social faith" necessary for a new St. Theresa. Returning to this point in the Finale, Eliot writes of St. Theresa and Antigone that the "medium in which their ardent deeds took shape is forever gone." Yet in the next sentence, Eliot reminds readers that "our daily words and acts are preparing the lives of many Dorotheas, some of which may present a far sadder sacrifice than that of the Dorothea we know." This prompts two questions. First, isn't Eliot rejecting continuity with the past precisely because the present has irretrievably lost the social consensus she imputes to the past — the consensus which, Ben-Yishai argues, makes precedent the repository of values held in common? Second, though Eliot maintains that the present sets precedents for the future, why must we infer that Dorothea, rather than her notable precursors, will be the governing precedent unless the future decisively breaks with the past? Indeed, in drawing this conclusion, Eliot acts more like Rosamond than Mary Garth, ignoring her own caution against projecting characters' futures from the too brief evidence of their lives in the novel.

According to Ben-Yishai, the tensions between continuity and change in Middlemarch mirror those in law reports. But the passages I have cited seem to replace the presentness of the past with the "futureness" of the present. Ben-Yishai's analysis, then, invites further consideration, particularly as it concerns Eliot's view of realist fiction. When in Middlemarch Eliot rejects the precedent of Fielding, she may be more radically forsaking previous modes of constructing reality than critics have acknowledged. Importantly, Middlemarch comes between Romola, a novel of Early Modern religious history, and Daniel Deronda, wherein the protagonist aims to fulfill an ancient prophecy regarding Israel. While I believe Ben-Yishai is right about Eliot's view of history generally, she inadvertently prompts us to wonder how much Middlemarch turns its back on the past.

Trollope's Eustace Diamonds, however, is convincingly shown to re-affirm traditional communitarian power. Once enshrined in the jury trial and still evident in gossip and rumor, this power rivals both empirical epistemology and strict legalism in defining fact, probability, and social norms. Just as Mary Garth applies common sense to her relationship with Fred, the communitarian features of precedential reasoning here come to the fore. Like the law reports, Trollope's plot deflects attention from the empirical facts in the case. Whether or not Sir Florian gave his wife Lizzy the diamond necklace cannot be known to outsiders. Instead, the novel strives to show how — in interpretive communities — status determines judgments, a privileged kind of truth. Reflecting Trollope's own hybrid politics, the novel aligns in unexpected ways both property and propriety, inherited traditions and arriviste aspirations, legal processes and communal practices. As Ben-Yishai notes, the heirloom law on which the plot turns was itself a strange amalgam: a positive law enacted to enshrine a customary practice of the elite, a law that forbade giving or willing away property deemed part of an estate attached to a title. Yet Lizzie's chief supporter is an aristocrat. While Lizzy's enemies use the law against her, arguing that even if she is telling the truth about the necklace, Sir Florian had no right to give it to her, she is defended by Lady Glencora, whose inherited status confers authority as she tells others what they ought to think about the case. She thus embodies Trollope's conviction that longstanding status breeds in those who hold it powers of true judgment, including the power to reject both legal precedent and evidence in favor of what they deem to be just. Common wisdom, then, operates both diachronically and synchronically. Accumulating over centuries, it is brought to bear on communal decision-making of the present day. It is enshrined in law so that it can override legal proceedings in favor of an overarching sense of traditional values.

Traditional values are differently deployed in The Woman in White, where — as Ben-Yishai shows — Walter manipulates narrative temporality to establish his legitimacy in past precedent. As a theme in Victorian culture, illegitimacy has attracted much critical attention. Collins' novel, Ben-Yishai notes, treats not only the illegitimacy of Sir Percival Glyde's birth but also the illegitimacy of Walter Hartright's status as Laura's husband, master of her estate, and father of the heir of Limmeridge. While both men seek legitimacy by manipulating the past, Sir Percival is foiled not only by Walter but also by Victorian law, under which — as Ben Yishai notes — a child born out of wedlock could not be made legitimate by its parents' later marriage. So even if Sir Percival had succeeded in forging evidence of his parents' elopement before his birth, to "legitimize" had no legal meaning. But Walter's forgery succeeds. While helping to unmask Sir Percival's plot, he forges his own narrative so as to elide any hint of class ambition and legitimize his elevated status. In detailed analyses, Ben-Yishai enumerates the rhetorical strategies by which Walter's retrospection makes him seem always already possessed of the truth even as he protests that he cannot describe the past. In mystifying the origins of his legitimacy and his agency, Ben-Yishai argues, Walter exemplifies the strategies by which bourgeois males leveraged the traditional virtues of the gentleman to gain elite status. Walter's status as a gentleman, then, seamlessly inserts him into the very lineage from which Sir Percival is excluded. It lets him rise without appearing to disrupt the patrilineal legitimacy of aristocracy.

More broadly, Ben-Yishai ties this strategy to the genre of the sensation novel, which manages to normalize a myriad of extraordinary events through rigorously coherent narrative. The very feature that makes sensation novels page-turners — one remarkable event following fast on another — lends the most improbable events an air of inevitability. Far from being a genre of disruption, then, the sensation novel succeeds where law reporters failed. Since no "bad cases" must be excluded, any occurrence can be subsumed into a narrative coherently connecting past, present, and future.

Common Precedents exemplifies the best practice in law and literature scholarship. Ayelet Ben-Yishai productively engages critical approaches from both fields while attending to the distinctive histories and forms of legal and literary texts. She brings previously ignored law reports into conversation with literary criticism, and her erudite discussions of legal matters contribute significantly to criticism on Victorian realist fiction. While this book may not entirely resolve the provocative questions it raises, it invites further investigation of legal precedent in the Victorian imagination.

Bibliography including related reviews

Ben-Yishai, Ayelet . Common Precedents: The Presentness of the Past in Victorian Law and Fiction. Oxford University press, 2013. xii + 191 pp.

Frank, Cathrine O. Law, Literature, and the Transmissison of Culture in England, 1837-1925. Ashgate, 2010. viii + 250 pp. [Review by Jane J. Lee]

Legitimacy and Illegitimacy in nineteenth-century Law, Literature and History. Eds. Margot Finn, Michael Lobban and Jenny Bourne Taylor. Palgrave Macmillan, 2010. viii + 191 pp. [Review by Robert Barsky]

Posner, Richard. Law and Literature. 3rd edition. Cambridge: Harvard University Press, 2009. [Review by Robert Barsky]


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Last modified 21 June 2014