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2 - New Fictions Defined

Published online by Cambridge University Press:  11 January 2022

Liron Shmilovits
Affiliation:
University of Cambridge
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Summary

This chapter proposes a definition for legal fiction. The problem of definition has divided scholars into multiple camps and held back progress. The definition proposed here is a compromise which seeks to preserve precision while covering the true range of fictitious devices. My definition is composed of two limbs: Hard Fiction and Soft Fiction. In developing this definition, I address a range of theoretical issues. I rebut arguments by Vaihinger and Kelsen that fictions do not exist. I discuss fictions from a linguistic perspective. I discuss the relationship between fictions and rules, and between fictions and counter-factuals. Also explored are contributions to the definitional debate by Fuller, Olivier, Ross, Chiassoni, Del Mar and earlier thinkers. The Chapter concludes with an application of the proposed definition in two case studies: the reasonable man and volenti non fit injuria. I argue the latter is a Soft Fiction and the former is not a fiction.

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Publisher: Cambridge University Press
Print publication year: 2022

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  • New Fictions Defined
  • Liron Shmilovits, University of Cambridge
  • Book: Legal Fictions in Private Law
  • Online publication: 11 January 2022
  • Chapter DOI: https://doi.org/10.1017/9781009023788.003
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To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Dropbox.

  • New Fictions Defined
  • Liron Shmilovits, University of Cambridge
  • Book: Legal Fictions in Private Law
  • Online publication: 11 January 2022
  • Chapter DOI: https://doi.org/10.1017/9781009023788.003
Available formats
×

Save book to Google Drive

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Google Drive.

  • New Fictions Defined
  • Liron Shmilovits, University of Cambridge
  • Book: Legal Fictions in Private Law
  • Online publication: 11 January 2022
  • Chapter DOI: https://doi.org/10.1017/9781009023788.003
Available formats
×