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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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Empirical Customs Empirical Customs Heirlooms and Facts in Anthony Trollope's Eustace Diamonds

Empirical Customs Empirical Customs Heirlooms and Facts in Anthony Trollope's Eustace Diamonds

(p.116) Chapter 3 Empirical Customs Heirlooms and Facts in Anthony Trollope's Eustace Diamonds
Common Precedents

Ayelet Ben-Yishai

Oxford University Press

Tightening the hold and authority of precedent over the nineteenth-century helped Victorians construct and uphold a sense of commonality. Trying to fashion these commonalities while presenting them as already in existence – one of the main social anxieties of the Victorian period – is the focus of my reading of Anthony Trollope's The Eustace Diamonds in the third chapter. Trollope's novel reveals several different processes of fact-making: legal ones as well as communal endeavors such as rumor, gossip and the regulation of propriety. However, the neat division whereby legal facts belong to the realm of the empirical and the facts of rumor belong to the communal does not hold in the novel: underneath the surface of almost any empirical and legal fact are traces and residues of a communal endeavor. The common of “common law” and “common sense” are shown to be in close affinity. In stressing the challenge of the communal to empiricism, I thus argue, The Eustace Diamonds engages in and problematizes the production of fact, as well as the positive law tradition from which this concept emerged. Through its engagement with facts the novel calls into question not only the epistemology and conventions of realist narration, common to novels of the period, but also conventions of positive law, the prevailing legal culture of the Victorian period

Keywords:   legal fact, rumor, gossip, epistemology, empiricism, positive law, conventions, common sense, communal

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