Legal Fictions in Theory and Practice

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We have a dedicated site for Germany. This multi-disciplinary, multi-jurisdictional collection offers the first ever full-scale analysis of legal fictions. Its focus is on fictions in legal practice, examining and evaluating their roles in a variety of different areas of practice e. The collection approaches the topic in part through the discussion of certain key classical statements by theorists including Jeremy Bentham, Alf Ross, Hans Vaihinger, Hans Kelsen and Lon Fuller. The 17 chapters are divided into four parts: 1 a discussion of the principal theories of fictions, as above, with a focus on Kelsen, Bentham, Fuller and classical pragmatism; 2 a discussion of the relationship between fictions and language; 3 a theoretical and historical examination and evaluation of fictions in the common law; and 4 an account of fictions in different practice areas and in different legal cultures.

The collection will be of interest to theorists and historians of legal reasoning, as well as scholars and practitioners of the law more generally, in both common and civil law traditions. It is a must-read for anyone with an interest in legal fictions — or indeed legal reasoning.

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Law and Philosophy Library Free Preview. Offers a timely and long-overdue revival of the topic of legal fictions, a much neglected topic in contemporary jurisprudence Presents comprehensive coverage of theoretical perspectives on legal fictions Includes wide coverage of the role of legal fictions in practice see more benefits.

Buy eBook. Wortley, Benjamin A. The motivation for seeking refuge has been multifarious, e. It is not only motivations that are multifarious: multiple, too, are the examples offered of so-called paradigmatic or typical fictions, and there as many definitions of fictions as there are apparent functions of them i.

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Add to this the broader epistemolog- ical and ontological context in which discussion of fictions inevitably must occur,2 and also the issue of the place of fictions in legal history, and the entire experience of thinking about fictions becomes a seriously vertiginous business. The epistemological and ontological context referred to above requires some un- packing.

Any reader pursuing the topic will quickly discern that there is an oscilla- tion in the literature between those who think legal fictions are an illusory category because there is no sense in which law makes claims on what is real instead, it simply regulates conduct , and those who see legal fictions everywhere, claiming that law is awash with artificial mental constructions that contradict reality treating 1 Precious thanks go to David Foster for his help with the preparation of the text of this volume, and to Andrew Bell for his assistance with the translation in Chap.

I would like to add personal warm thanks to William Twining, whose support and enthusiasm for this project from the begin- ning has seen it through and made it incomparably better than it would have been. It should be not- ed that a smaller version of this project had an earlier life as a workshop at the IVR International Association of Legal and Social Philosophy Congress in Frankfurt in the summer of , which resulted in four of the chapters published being published in earlier versions in the International Journal of Law in Context see Nr.

Clearly, whether one sees fictions everywhere or nowhere is going to de- pend on certain intuitions or, naturally, well worked out theories of what we know and how we can know it and what exists. Part and parcel of that is going to be an attitude to language, including the status of specialised languages such as that of law, e. An important early decision anyone thinking about legal fictions has to make is to consider whether one is primarily interested in fictions in legal practice or fic- tions in legal theory. Is one going to analyse the construction of explanatory devices possibly with normative purposes by legal theorists seeking to understand and, again, possibly, on normative grounds, seeking to recommend a certain understand- ing of the nature or history of law and legal reasoning?

This volume tackles these and other problems head on. Its focus is on legal fic- tions in practice, though without entirely neglecting the fictions of legal theory. Chapters were commissioned from different traditions of inquiry—though with par- ticular focus on the major players in this field: William Blackstone, Hans Vaihinger, Jeremy Bentham, Sir Henry Maine, Hans Kelsen and Lon Fuller—as well as from a variety of different traditions of practice, including from different times and places: covering, for example, the early and contemporary common law, Roman law, Rab- binic Law, as well as fictions in such areas of law as intellectual property law, tort law, land law, criminal law and class action procedure.

Of course, even this depth and breadth is inevitably very selective: many areas of practice of great relevance to legal fictions are only discussed incidentally e. Islamic law, to mention but one example. Nevertheless, it is hoped that sufficient resources are offered for future excursions into this topic in those other areas.

Particular care has been taken here to bring together both legal theorists and legal historians. This is not only because dialogue between those two disciplines is much needed—but also, and indeed primarily, because the topic of legal fictions necessitates it. Any argument about fictions—whether that is at the level of defini- tion or evaluation—must, surely, take into account their role in the practice of law over time.

Introducing Fictions xi in the days when historical jurisprudence was in vogue: one read Blackstone and Maine and mused over the role of fictions in the development of law, considering, for instance, whether they are best thought of as temporary scaffolding, to be dis- carded once their modest but necessary function has expired, or as a more perma- nent feature of the legal phantasmagoria. In part, then, returning to legal fictions as this collection has done is a reminder of that much-too neglected meeting place of theory and history.

The hope is that this approach is more con- ducive as an introduction to the volume than the usual parade of chapter summaries. Examples of Legal Fictions Before one can proceed to offer and evaluate opinions about the utility, or other- wise, of fictions, one needs to get a sense of the examples associated with the term.

As noted above, the focus of this collection is on fictions in practice, and thus the examples given below focus on these. Fictions of legal theory are returned to briefly in the fifth part of this introduction, as devices deserving of greater attention than has hitherto been devoted to them.


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When they are mentioned in what follows, it is as but contrasts or comparisons to fictions in practice. It is important to underscore, though, that the distinction between fictions of theory and fictions of practice is an important one, and to some a fundamental one: for example, Kelsen argues that Vaihinger fails to make this distinction, and as a result, classifies as fictions those in practice that are not fictions at all, while not spending enough time on those that are genuine fictions i.

According to Kelsen see Chap. For our purposes, the second is the category of most interest. For further discussion, see Kletzer, Schauer and Samuel in this volume. For the juris- dictional fiction in Roman law, see Ando in this volume. These fictions are returned to below. Schauer and Lobban.

9. Law’s Fictions, Legal Fictions and Copyright Law

As far as I can tell, this is the only instance of a re-narration of the present facts in this volume, and one in which no generalisation of a pos- sible rule for future cases is even attempted—it is a particular way to solve a particular problem. This distinction, if one accepts it, shows the importance of looking at the use of fictions over time, and not at one isolated instance though, of course, in some cases, there may only be one use, not picked up on by future courts.

Briefly, this is an example of a fiction because, at a certain point, the ac- tion comes to rest on a fictitious lease by a real claimant to a fictitious nominal plaintiff. This may also serve as an example where introducing one fiction leads one to create others to hold it up. Both Del Mar and Lee take it to be important to analyse and evalu- ate the use of this fiction over time. Introducing Fictions xv their importance, here are five examples from his chapter see Ando, Chap.

Does this mean it is fragmented and does not form a cohesive whole ardly— first, there is some overlap in the examples the contributors work with; but further, the richness of examples is a strength and offers excellent resources for thinking through certain fundamental questions concerning the role of law—especially con- cerning the extent of its autonomy from everyday social experience and discourse.

Time, then, to delve into those questions, all the while keeping an eye on common themes and issues as well as disagreements amongst the contributors. Jobs for Fictions A good initial way into the thicket is to consider the functions—or jobs, both en- abled and performed—by fictions. Legal fictions, on his view, are ways of enabling the tempo- rary suspension of an otherwise required operative fact—very often, precisely one requiring proof of causation or intention see also Lee. This is a point made powerfully 16 One might argue the two are not equivalent: in the first one, there is a judicial determination to treat the ship as having a personality for purposes of resolving particular cases; in the other, there is a general rule that, over time, we discover clashes with social realities.

The second seems less a strategic intervention in the law, and more a failing of the law we scholars discover or claim there to be in light of changing commercial practices.

In his chapter on the uses of fictions in Roman law, Ando observes that sometimes it seems that the principle is in fact being subverted: e. There is a very interesting question here as to the criteria we might employ to judge whether we think the principle has been disturbed or not, undermined or not. There is an interesting sub-function identified here: fictions as enabling travel across legal categories.

If, for instance, the court acquired jurisdiction by pointing out similarities between Minorca and London, it would be offering more robust resources for future courts, for future courts could use those statements on similarity to attain jurisdiction in other claims originating outside England.

The fiction, in this sense, is a device that allows one to seal off the normativity- producing capacity of a decision. The idea that employing fictions is a matter of misapplying rules appears to be a more negative way of saying the same thing that could be put more positively, e. One could here ask: what is the difference between misapplying and not following the rule? Fictions, then, might allow for both doctrinal and institutional development. This is the major point made by Del Mar: that we need to analyse the role of fictions over time, thereby seeing that some fictions are picked up on by future courts and expanded while others are left behind and further quarantined.

On this view, legal fictions are forms of communication or communicative devices for signalling the technicality the semi-autonomous character of legal language. Some- times, a litigant may employ a fiction in order to enable a legal act, such as trans- ferring property or resettling estates. Further, some of the jobs may be simultaneous, e. Defining Fictions A decision was made at the outset of this project that no attempt would be made to impose any one example or function, or indeed definition, on the contributors—the point being to see how they carved out the object of their inquiry.

Thus, as reported by Kelsen in this volume Chap. Are fictions, for instance, more likely to be popular when the pre-existing rules and principles are highly concrete? There is, however, considerable controversy in this volume over whether or not fictions are 1 false see e. Lind, who argues that they are true statements ;24 and 2 require any consciousness of falsity thus, for in- stance, Del Mar does not look at fictions through the prism of truth or falsity, but through the prism of what can or cannot be proved.

Again, there is disagreement in this volume over whether, and the extent to which, one ought to hold legal language up to, for instance, the standard of common or everyday experience e.