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Vol 23 No 5 May/June 2018

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Legal Fictions in Theory and Practice

Edited by: Maksymilian Del Mar, William Twining

ISBN13: 9783319092317
Published: April 2015
Publisher: Springer-Verlag
Country of Publication: Switzerland
Format: Hardback
Price: £109.99

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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

  • 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.

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 Samue
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