Invisible Precedents: On the Many Lives of Legal Stories Through Law and Popular Culture
NYU School of Law - Straus Institute for the Advanced Study of Law and Justice; University of Haifa - Faculty of Law; Yale Law School
Emory Law Journal, Vol. 50, No. 4, pp. 1265-1293, 2001
This study looks into textualization in legal and extra-legal occurrences: how some texts (here, a legal "opinion") allow for reiteration of language and a plurality of text-artifacts that follow from it, and how subsequent acts of recasting these texts in social settings - namely, later legal cases - manipulate, communicate, and import distinctly contextual elements into the newly created text-event. Typically, those elements support, justify, and rationalize (in two competing senses, discussed below) placing a legal decision within an established history of textuality, a doctrinal canon, or a moral approach.
The study begins by examining the hold that a notorious 1823-4 English murder case had - or did not have - on the legal, literary, and folk imaginations of its time. As it stood, R. V. Thurtell failed to impress the former and was recorded in a law report. Yet, it made a great impression on the latter, as illustrated by the amazingly rich array of narrative forms that aimed to capture aspects of it - a splendid polyphonic tapestry of moral poems, broadside ballads, stage plays, novella-like renditions, essays, journalistic studies, memoirs, anecdotes, vignettes, and even household artifacts sold as mementos. The second part of the study presents six twentieth century cases, three American and three British, that track down and employ - through quotation, citation, and other forms of importation and reference - not merely Thurtell's doctrines, but its exact rhetoric. Yet, canonically speaking, that case did not exist in any legal canon and its legal textuality was itself a phantom. None of the courts hereby discussed considered this fact insurmountable, and, in their "drive for reference," they devised several ways around the problem of textuality.
In looking at multiple facets of textuality that evolved around Thurtell, the study examines the performance of reference to precedents in cultural, inter-discursive terms rather than merely legal-doctrinal ones (I shall say close to nothing on the doctrine of precedent). It focuses on questions of legal textuality, reiteration, and recontextualization. What does judicial reference, by way of importation and incorporation of the language of prior cases, do? Why is contextual reference so prevalent in judicial opinions? How can an examination of rhetoric - of the language of reference rather than the propositions pronounced by it, the performance and manipulation of reference rather than the doctrine expressed through it - promote an understanding of how courts and other social agents conceptualize law?
The conclusion abstracts from the prior discussion and looks into legal textualization from the perspective of a performative interpretation of a "drive for reference."
Number of Pages in PDF File: 30
Keywords: Precedent, Legal history, Law reports, Regency England polular culture, Drive for reference, textuality, Citation, Quotation, the Radlett murder, Thurtell/Weare
JEL Classification: K14, K4, K41
Date posted: February 6, 2007 ; Last revised: December 10, 2013
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