Law and philosophy library. 1572-4395 ; 110.
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.g. in Tort Law, Criminal Law, and Intellectual Property Law), and in different times and places (e.g. in Roman Law, Rabbinic Law, and the Common Law). 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 collection opens with the first-ever translation into English of Kelsen's review of Vaihinger's As If. 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.
Formatted Contents Note
Preface; William Twining Introducing Fictions: Examples, Functions, Definitions and Evaluations; Maksymilian Del Mar I. Theories of Fiction, Fictions of Theory 1. On the Theory of Juridic Fictions. With special consideration of Vaihinger's Philosophy of the As-If; Hans Kelsen, translated by Christoph Kletzer 2. Kelsen on Vaihinger; Christoph Kletzer 3. Is Law a Fiction?; Geoffrey Samuel 4. Fuller on Legal Fictions: A Benthamic Perspective; Michael Quinn 5. The Pragmatic Value of Legal Fictions; Douglas Lind II. Community, Language and Literature 6. Legal Fictions Revisited; Frederick Schauer 7. Legal Fictions and the Limits of Legal Language; Karen Petroski 8. Legal Fictions and Exclusionary Rules; Simon Stern 9. Law's Fiction, Legal Fiction and Copyright Law; Burkhard Schafer and Jane Cornwell III. Change and the Common Law 10. Legal Fictions before the Age of Reform; Michael Lobban 11. Legal Fictions and Legal Change in the Common Law Tradition; Maksymilian Del Mar 12. Fictions in Tort; James Lee 13. Ejectment: Three Births and a Funeral; Peter Sparkes IV. Fictions in Practice: Past, Present and Future 14. Fact, Fiction, and Social Reality in Roman Law; Clifford Ando 15. Rabbinic Legal Fictions; Leib Moscovitz 16. Presumptions and Fictions: A Collingwoodian Approach; Raymundo Gama 17. Some Uses of Fictions in Criminal Law; Peter Alldridge 18. Fictitious Fraud: Economics and the Presumption of Reliance; Randy D. Gordon Index.
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