This chapter uses the legal question of inheritance as a starting point for establishing a dialogue between the legal case and fiction. It moves from the specific question of inheritance to a broader question about the status and relevance of precedent cases in legal decision-making. It builds on the work of scholars who have analysed Trollope’s fiction in the context of legal developments in nineteenth-century England: for example, Jan Melissa Schramm interprets Orley Farm as a part of a wider cultural response to the question of the legal representation of felons and argues that the novel can be read as an exploration of the dilemma of lawyers who represent a person whom they believe to be guilty (Schramm 2000: 127–30), and, more recently, Nicola Lacey has argued that both Orley Farm and The Eustace Diamonds reflect a dominant Victorian assumption about female dishonesty and unreliability in both law and literature (Lacey 2011;). In another article, Lacey has shown that the depiction of lawyers in Trollope’s novels, and in Victorian fiction more generally, can be explained by the rise of the legal profession and its internal tension between an older model premised on a service ideal and a newer model recognising the commercial reality of legal practice (Lacey: 2011). This chapter continues the work of reading Trollope as part of legal history, but places him within a different strand of this history from Schramm and Lacey, that of stare decisis.

Legal historians have noted that the second half of the nineteenth century is a crucial period in the development of the doctrine of stare decisis, the central legal doctrine which dictates that decisions in the common law have to follow precedent cases dealing with similar issues. This chapter argues that The Eustace Diamonds can be read as a critique of the doctrine of binding precedent, a doctrine which was consolidating in the common law around the time of the novel’s publication. The discussion is divided into three parts. Part One situates the novel in the context of the development of stare decisis in the second half of the nineteenth century, and shows that by the early 1870s the judicial understanding of the relationship between current and precedent cases had shifted from one whereby the latter are regarded as evidence of law to one whereby they are regarded as sources of law in and of themselves, and therefore as binding. In other words, it charts the development of case law from stare decisis to binding precedent. Parts Two and Three then consider the ways in which The Eustace Diamonds can be interpreted as a critique of the changes in ideas about the binding nature of legal precedent.

When approaching the history of case law in England, it is important to note that legal historians draw a distinction between ‘stare decisis’ and ‘binding precedent’, two terms which are usually taken to be synonymous in our own time. Both terms refer to a general attitude of adherence to precedent cases, but they have very different inflections. ‘Stare decisis’ refers to the judicial attitude that precedent cases ought to be followed not because they are binding law, but because they are evidence of law. In other words, cases are not law in and of themselves, but only serve to illustrate legal principles. This understanding of case law is captured in the words of the eighteenth-century judge, Lord Mansfield:

What needs to be underscored in this view of case law is that cases are not strictly binding: since cases are themselves not law but are only evidence or illustrations of law, courts only follow the decisions in precedent cases as a matter of practice or custom, and not because they regard cases as strictly binding in the modern sense of the term. In other words, a court can choose not to follow precedent cases if there are strong arguments for not following them.

In contrast to stare decisis, the doctrine of ‘binding precedent’ refers to the judicial attitude that precedent cases which are factually similar and which deal with the same legal issue must be followed. This is because according to this doctrine, cases are not just evidence of law, but are themselves law. A judge has to follow precedent even if he disagrees with the outcome, or even if there are strong moral reasons for setting it aside. This theoretical understanding of the law is of course much closer to the contemporary attitude towards precedent cases.

Legal historians have demonstrated that ‘stare decisis’ and ‘binding precedent’ represent different stages in the development of case law: we move from ‘stare decisis’ – the view that cases are but evidence of law – to ‘binding precedent’, the view that cases are themselves law and must be followed. As with much of the evolution of common law, this shift occurred gradually and unsystematically: as Jim Evans points out, ‘[t]he common law did not develop a system of case-law by adopting explicit premises as to the authority of cases. It passed imperceptibly from a time when what was said in the course of cases was evidence of the law […] to a time when the law pronounced in the cases was itself the material of a substantial part of the system of law’ (Evans 1987: 36; my italics).

This section aims to show that Evans’ argument could be given greater precision in that not only did the change occur in the nineteenth century, but it occurred specifically in the second half of the nineteenth century, around the time of the publication of The Eustace Diamonds, in the early 1870s. This argument is premised on four developments: first, the spread of the influence of the jurist John Austin; second, the changes to the practice of court reporting; third, the simplification of the English court system, and finally, the increasing anxieties about English identity.

Austin regarded judge-made law as ‘tacit commands’ of the sovereign, and as such he believed that cases should themselves be regarded as law. In a famous passage from his Lectures on Jurisprudence, he ridicules the notion of case law as merely illustrations or evidence of law by noting that the idea that common law is ‘a miraculous something made by nobody, existing, I suppose, from eternity, and merely declared from time to time by the judges’ is nothing but ‘childish fiction’ (Austin 1873: 655). The huge influence of Austin on Victorian legal thought is amply documented elsewhere, but it is worth mentioning here Holdsworth’s observation that most books on jurisprudence published between 1850 and 1875 were Austinian in character, an observation which testifies to the widespread influence of Austin’s jurisprudence. It is also significant that the fourth edition of Austin’s lectures appeared in the same year of the publication of the Eustace Diamonds, in 1873. Trollope’s novel can be said to appear at the moment when the influence of Austinian thinking on the law was at its peak.