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Common PrecedentsThe Presentness of the Past in Victorian Law and Fiction$
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Ayelet Ben-Yishai

Print publication date: 2013

Print ISBN-13: 9780199937646

Published to Oxford Scholarship Online: May 2013

DOI: 10.1093/acprof:oso/9780199937646.001.0001

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Stare Decisis, Law Reports, and the Materiality of Legal Form

Stare Decisis, Law Reports, and the Materiality of Legal Form

(p.31) Chapter 1 Stare Decisis, Law Reports, and the Materiality of Legal Form
Common Precedents

Ayelet Ben-Yishai

Oxford University Press

This chapter joins recent nineteenth-century legal history scholarship in reconsidering the history, function, and theory of the common law through a long-overdue inquiry into the nature of legal precedent and its narrative forms, the law reports. It shows that these awkward, often unreadable, case law narratives are in fact a product of a long discursive tradition, that their insular and skeletal forms enable the process of precedential reasoning and arguing. Read in their historical, legal, and narrative contexts, the anti-narrative form of the reports reveals how they negotiate the larger socio-political challenges to the legal culture in which they function. Negotiating between the new orthodoxy of positive law and the still powerful common law, precedent reveals the intricacies of nineteenth-century legal pluralism. By negotiating the tension between a concrete case and the abstract rule which is its potential precedent, anti-narrativity enables the communal (if contradictory) nature and goal of precedential reasoning: the creation of a stable common law, dating from “time immemorial.” Anti-narrativity thus constitutes and reveals the (troubled) narrative form of the (troubled) legal doctrine of stare decisis in the Victorian period; it also reconsiders the role of narrative in law.

Keywords:   time immemorial, nineteenth-century legal history, law reports, narrative form, narrative in law, common law, positive law, stare decisis, case law, legal pluralism

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