Common Precedents: The Presentness of the Past in Victorian Law and Fiction
Ayelet Ben-Yishai
Abstract
Common Precedents argues that precedent constitutes a sophisticated and powerful mechanism for managing social and cultural change and that this quality accounts for its unacknowledged centrality to Victorian culture. Precedential reasoning enables the recognition of the new and its assimilation as part of a continuous past. Through this act of recognition and assimilation, it constructs a sense of a common identity essential to the Victorians. By appearing to bring the past seamlessly into the present, legal precedent became vital to the preservation of a sense of commonality and ... More
Common Precedents argues that precedent constitutes a sophisticated and powerful mechanism for managing social and cultural change and that this quality accounts for its unacknowledged centrality to Victorian culture. Precedential reasoning enables the recognition of the new and its assimilation as part of a continuous past. Through this act of recognition and assimilation, it constructs a sense of a common identity essential to the Victorians. By appearing to bring the past seamlessly into the present, legal precedent became vital to the preservation of a sense of commonality and continuity crucial to the common law and Victorian legal culture, as well as to the society in which it operated and the larger culture of which it was part. These qualities extended the impact of precedent beyond legal practices and institutions to the culture at large. This analysis of law and literature shows that precedential reasoning enjoyed widespread cultural significance in nineteenth-century culture as a means of preserving a sense of common history, values and interests in the face of a new heterogeneous commonality. Understanding the structure of precedent also explains how fictionality works, its epistemology, and how its commonalities are socially constructed, maintained, and reified. Common Precedents thus presents a cultural history of precedent and the ways in which it enables and facilitates a commonality through time.
Keywords:
precedent,
legal culture,
realist fiction,
cultural history,
fictionality,
commonality,
law and literature,
social construction,
nineteenth-century culture,
temporality
Bibliographic Information
| Print publication date: 2013 |
Print ISBN-13: 9780199937646 |
| Published to Oxford Scholarship Online: May 2013 |
DOI:10.1093/acprof:oso/9780199937646.001.0001 |
