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Legal Fictions in Theory and Practice

Part of the Law and Philosophy Library Book Series (volume 110)

Editors: Del Mar, Maksymilian; Twining, William

DOI: 10.1007/978-3-319-09232-4

ISBN: 978-3-319-09231-7

Publisher: Springer International Publishing - Springer Journals

Mar 12, 2015

1 - 10 of 18 Chapters

Available

On the Theory of Juridic Fictions. With Special Consideration of Vaihinger’s Philosophy of the As-If

Kelsen, Hans; Kletzer, Christoph

Pages: 3 –22

[This is a translation into English of Kelsen, Hans. 1919. Zur Theorie der Juristischen Fiktonen: Mit besonders Berücksichtigung von Vaihingers Philosophie des Als Ob, Annalen der Philosophie 1: 630–658.]
Available

Kelsen on Vaihinger

Kletzer, Christoph

Pages: 23 –29

[This is a comment by the translator on the translation of Hans Kelsen’s ‘On the Theory of Juridic Fictions. With special consideration of Vaihinger’s Philosophy of the As-If’ (Chap. 1).]
Available

Is Law a Fiction?

Samuel, Geoffrey

Pages: 31 –54

[Taking its cue from Walter Jones’ 1940 monograph on the history of legal theory—one of whose chapters is entitled The Fiction Theory—this present chapter examines the credibility of such a theory. Much of course depends upon how one defines fiction. However if one adopts Hans Vaihinger’s...
Available

Fuller on Legal Fictions: A Benthamic Perspective

Quinn, Michael

Pages: 55 –82

[This paper attempts first to explain Bentham’s distinction between a fiction and the name of a fictitious entity, and to relate that distinction to his rationale for the critique of legal fictions. A second goal of the paper is to investigate the tensions involved in Bentham’s ontology and...
Available

The Pragmatic Value of Legal Fictions

Lind, Douglas

Pages: 83 –109

[Using a jurisprudence grounded in pragmatist philosophy, this chapter proposes a reconceiving of the concept of legal fictions. By tradition, fictions are treated in legal theory as consciously false assertions. This is unfortunate, for it engulfs law in logical contradiction, marginalizes all...
Available

Legal Fictions Revisited

Schauer, Frederick

Pages: 113 –129

[A rarely noticed feature of legal fictions is their dependence on a certain understanding of the nature of legal language. If the language of the law is understood as a largely technical language internal to law and its goals, then that language can be applied without need for recourse to...
Available

Legal Fictions and the Limits of Legal Language

Petroski, Karen

Pages: 131 –156

[Since Lon Fuller published his 1930 trilogy of essays on the topic, students of the legal fiction have focused on identifying additional examples of fictions or challenging Fuller’s classic taxonomy. But Fuller did more in these essays than propose a definition and a classification system; he...
Available

Legal Fictions and Exclusionary Rules

Stern, Simon

Pages: 157 –173

[Although the law abounds in fabrications, the term “legal fiction” is best reserved for what Alf Ross describes as “posed propositions,” which hazard a premise only to secure a particular doctrinal result. On this view, legal fictions lack the generative potential of metaphors, because fictions...
Available

Law’s Fictions, Legal Fictions and Copyright Law

Schafer, Burkhard; Cornwell, Jane

Pages: 175 –195

[This paper analyses legal fictions—the use of certain constructs in legal reasoning—through the eyes of law’s fictions—the way in which law accounts for fictional objects in copyright law. Recent developments in philosophy that saw increased interest by analytical philosophers and logicians in...
Available

Legal Fictions before the Age of Reform

Lobban, Michael

Pages: 199 –223

[Before the era of reform, the common law was replete with fictions. The procedure by which litigation commenced in the common law courts was premised on fictions, while litigants also used fictions to enable themselves to avail themselves of convenient remedies. In allowing litigants to make...

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