Anti-Narrative Truth: The Uncommon Textual World of Victorian Precedent

Ayelet Ben-Yishai

Despite the above appeal and countless others like it, Victorian-era law reports were anything but certain, known, and authenticated. In fact, these narratives were often choppy or truncated, miserly in detail, utterly lacking in character descriptions and irregulrly published. The result was an extreme narrative style, peculiar to the point of incomprehensibility. In my talk I will discuss the elements of what I have identified as an "anti-narrative" style and its possible meanings within the historical legal culture in which the reports took part. I show how the law reports use narrative conventions - often in counter-intuitive ways - to manifest the tension between a concrete case and the abstract rule which is its potential precedent. Incorporating a discussion of nineteenth-century theories of legal precedent and the history of common law reporting with a formal analysis, I contend that the insular "anti-narrative" form of the reports enables the communal nature and goal of precedential reasoning: the creation of a common law, dating from "time immemorial."

In addressing these concerns my talk also raises some methodological questions: How do we learn to read a style or genre that seems to resist reading? What gets lost when we the incomprehensible is made comprehensible? And, most importantly for the purposes of this conference, what part of comprehensibility (or lack thereof) is a result of disciplinary conventions, training and expectations, and what are its consequences and implications for the study of legal culture?