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

Abstract

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.