Textual Harassment: A New Historicist Reappraisal
This year marks the four hundredth anniversary of the Parol Evidence Rule, the rule that dictates that the interpretation of a written contract should be determined solely according to its text and not influenced by prior contradictory external information. This article uses the occasion to offer a fresh interdisciplinary view of the Rule. The analysis presents a unique contribution to the heated debate regarding the desired levels of formalism and textualism in present-day contract law, by using New-Historicist tools.
Unexplored aspects of the roots of the Rule are illuminated through an in-depth investigation of the first case of the contractual Parol Evidence Rule, the Countess of Rutland’s Case (1604). To examine this Case, the article suggests the use of “Legal New Historicism” – researching both human and non-human “actors” who played a role in this Case, and re-narrating the story of Isabel, the Countess of Rutland. This method reveals, for example, rare maps and romantic stories which lead to a critical look at the Rule’s total exclusion of context and helps to expose its gendered nature.
The article further presents a close reading of the most influential paragraph in Sir Edward Coke’s report of the Case. Coke’s words and phrasing, it is proposed, should not be read as incidental choice of language, but rather as carefully planned and, as such, reflective of the dominant values of the legal culture within which they were written. It is further argued that the choice to exclude the context is far from a mere omission. De facto it can be seen as actively creating and then taking into account a manufactured context – one that does not exist and is deeply patriarchal. An exploration of the political and cultural contexts of Coke’s report explains the possible motives for establishing the Rule and phrasing it in such manner. It is argued that the Case played an active role in Coke’s efforts to strengthen the diminishing status of the Common Law, in the face of increasing threats, as a component of a marketing project aimed at improving the Common Law’s image without significantly changing its content.
Along the way the first Case is paired with an almost-twin contemporary case, which resulted from a Hollywood scandal, Clark v. Hannah-Clark (2003). Based upon the juxtaposition of this new legal narrative of Nicolette (Hannah-Clark) with the older story of Isabel (the Countess of Rutland), it is concluded that the flaws and biases underlying the Rule remain acute and call for a serious reconsideration of its justification. In this way the article offers an original and, hopefully, useful argument against excessive formalist textualism in present-day contract law.
Commercial Law | Contracts | Jurisprudence | Law and Gender | Law and Society | Legal History | Sexuality and the Law
Date of this Version
Hila Keren, "Textual Harassment: A New Historicist Reappraisal" (July 30, 2004). bepress Legal Series. bepress Legal Series.Working Paper 311.