Victorian literature provides many examples of the shared procedural methods between literature and the law as observed by Ian Watt in The Rise of the Novel, with novelists frequently using the courtroom as a metaphor for their fictional practice. As Jonathan H. Grossman notes, ‘it is easy enough to find analogies between the novel and the law courts as storytelling forums: readers or authors are like judges; a narrator performs as a witness or a lawyer; characters testify; and so on.’ Wilkie Collins, for example, opens The Woman in White with the statement that ‘the story here presented will be told by more than one pen, as the story of an offence against the laws is told in Court by more than one witness – with the same object, in both cases, to present the truth always in its most direct and most intelligible aspect.’ Thus ‘as the Judge might once have heard it, so the Reader shall hear it now.’ The pervasive appearance of the courtroom and legal discourse in Victorian literature can be traced back to changing practices in trial procedure from 1836 when the Prisoner's Counsel Act reshaped trial procedure into an adversarial contest between opposing counsels. This development, which Justice James Fitzjames Stephen described as ‘the most remarkable change introduced into the practice of the courts’, was subject to intense scrutiny in the press and narrative fiction.

When Martha Brown's murder trial was held in 1856 a parliamentary debate was under way over the Divorce and Matrimonial Causes Bill, in which the question of the definition of marital abuse figured prominently, though a question raised too late for her to be released from her abusive marriage. She had murdered her husband, whom she had discovered was having an affair, after a violent quarrel when he returned home drunk. Following the trial a request for a reprieve had been submitted to the Home Secretary on account of the prolonged abuse Martha allegedly suffered at the hands of her husband. Prior to her execution she made the following statement:

In 1857 James Fitzjames Stephen noted that ‘The age in which we live has produced, amongst other novelties, an entirely new school of politicians. […] In politics, in law, and in twenty other walks of life, reforming has become a distinct branch of business.’ In this article Stephen launches an attack directed at the fiction of Charles Dickens, whom he accuses not only of knowing absolutely nothing of politics or law but of ‘a very active fancy, great powers of language, much perception of what is grotesque and a most lachrymose and melodramatic turn of mind, and that is all’. This is utilitarianism's answer to fancy, Justice Stephen accusing Dickens of an irresponsible use of the imagination to overturn the rational world of the law with the disorder of the topsyturvy. This is in fact the objective that Dickens explicitly set this out as his rationale for establishing the journal Household Words, ‘to help in the discussion of the most important social questions of the time’ when he noted that ‘no mere utilitarian spirit, no iron binding of the mind to grim realities’ would deter the magazine from ‘cherish(ing) that light of Fancy which is inherent in the human breast’. As a forum for exposing problems within the delays and procedures of the courts and the reality of marriage, Household Words was the first of a number of periodical publications that became powerful agents for mediating and influencing public opinion and contributing to discourse that directly influenced social change.

The provision of defence counsel in criminal trials from 1836 sparked an unforeseen debate on how to establish a reliable and consistent means for determining a prisoner's mental state in questions of criminal responsibility. The landmark tort trial of Vaughan v. Menlove (1837) established the ‘reasonable man’ standard by which juries should base their decisions on the grounds that ‘whether the Defendant had acted honestly and bona fide to the best of his own judgment … would leave so vague a line as to afford no rule at all … we ought rather to adhere to the rule which requires in all cases a regard to caution such as a man of ordinary prudence would observe’. While this seemed to offer a transferable standard with which to judge cases of legal culpability when dealing with a ‘reasonable man’, it could not be applied in cases of insanity where reason was the very quality of mind under consideration. The most notorious homicide case of the century raised the question of the definition of legal insanity. This was the case of Daniel McNaughten who killed Edmund Drummond in 1843 believing him to be Sir Robert Peel, under the delusion that the Tories were his enemies. Rather than leaving the jury to use the ‘reasonable man’ standard, which he had established in Vaughan v. Menlove, in McNaughten's trial, Justice Tindal directed the jury to acquit. Without retiring to deliberate, the jury returned a verdict of not guilty on the ground of insanity.

Thomas Hardy was an acting magistrate for most of his fiction-writing career and was deeply immersed in the law at a time of prolific legal reform when common law, based on tradition and precedent, was rigorously examined and reformed based on the principles of reason rather than tradition. This reform can be traced back to 1776 when Jeremy Bentham argued that the law, as it was set out in William Blackstone's four-volume Commentaries on the Laws of England, was a defunct system that had evolved into an expansive mass of contradictory precedent-based rulings. He urged the need to reform and codify the law according to the principles of precision, uniformity and universal applicability. Bentham's criticism led to the wide-ranging legal reforms of the nineteenth century, which began in earnest on 7 February 1828 when Lord Henry Brougham made a six-hour speech (the longest in the history of the Commons) which instigated the reform of the legal system. This reform was overseen by the Law Amendment Society and driven by the principles of utilitarianism advocated by Bentham. What I am interested in here is not fictional responses to utilitarianism, which was of course famously undermined by Dickens, but how this unprecedented overhaul of a long-established legal system exposed the law as a construct and how in turn that affected fictional evaluations of the law in the nineteenth century.

Following a six-hour speech by Henry Brougham in Parliament in 1828, in which he denounced a number of inequities in the administration of law, a Royal Commission was set up to consider the state of law pertaining to property. The Commission concluded that ‘when once the object of transactions respecting land is accomplished, and the estates and interests in it which are recognized are actually created and secured, the law of England, except in a few most unimportant particulars, appears to come almost as near to perfection as can be expected in any human institutions.’ Eileen Spring argues that lawyers had a vested interest in opposing land law reform and as a result land law was not significantly amended until 1925. This contention would seem to be borne out by the objective of The Law Times and Journal of Property, established as ‘a journal devoted to the numerous intelligent, wealthy, and influential classes engaged in the making and administration of the law throughout this great empire’. That the legal system protected the interests of the landed gentry was certainly shown to be true in the lengthiest trial of the nineteenth century, which was the scandalous inheritance dispute over the Tichborne estate, described by the Daily News as ‘the most extraordinary trial which has taken place in our time’. Hardy began his fiction-writing career with a sensation novel, a genre preoccupied with class, illegitimacy and, fundamentally, the transfer of the landed estate, all of which issues captivated the public at that time in the sensational Tichborne trials.

‘Victorian’ is a term, at once indicative of a strongly determined concept and an often notoriously vague notion, emptied of all meaningful content by the many journalistic misconceptions that persist about the inhabitants and cultures of the British Isles and Victoria's Empire in the nineteenth century. As such, it has become a byword for the assumption of various, often contradictory habits of thought, belief, behaviour and perceptions. Victorian studies and studies in nineteenth-century literature and culture have, from their institutional inception, questioned narrowness of presumption, pushed at the limits of the nominal definition, and have sought to question the very grounds on which the unreflective perception of the so-called Victorian has been built; and so they continue to do. Victorian and nineteenth-century studies of literature and culture maintain a breadth and diversity of interest, of focus and inquiry, in an interrogative and intellectually open-minded and challenging manner, which are equal to the exploration and inquisitiveness of its subjects. Many of the questions asked by scholars and researchers of the innumerable productions of nineteenth-century society actively put into suspension the clichés and stereotypes of ‘Victorianism’, whether the approach has been sustained by historical, scientific, philosophical, empirical, ideological or theoretical concerns; indeed, it would be incorrect to assume that each of these approaches to the idea of the Victorian has been, or has remained, in the main exclusive, sealed off from the interests and engagements of other approaches.