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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.
This chapter ties together all the threads of the book to construct a general Acceptance Test for fictions. I begin by discussing the nature of the desired Acceptance Test in terms of the width of the discretion it should contain, and of the fundamental policy it should reflect. I then discuss the motives for fictions, concluding that the Acceptance Test should not take motive into account. There follows an analysis of previous findings as to specific fictions, in light of the Effect and Nature Classifications. The Classifications are used to separate desirable from undesirable fictions. The roles of justice and conservatism are considered. I argue that existing fictions should be treated more leniently than new fictions. This distinction finds expression in two sub-tests of the Acceptance Test: the Retention Test and Creation Test. Finally, the Acceptance Test is presented as the combination of the Retention Test and Creation Test in one flowchart.
Legal fictions are falsehoods that the law knowingly relies on. It is the most bizarre feature of our legal system; we know something is false, and we still assume it. But why do we rely on blatant falsehood? What are the implications of doing so? Should we continue to use fictions, and, if not, what is the alternative? Legal Fictions in Private Law answers these questions in an accessible and engaging manner, looking at the history of fictions, the theory of fictions, and current fictions from a practical perspective. It proposes a solution to what to do about fictions going forward, and how to decide whether they should be accepted or rejected. It addresses the latest literature and deals with the law in detail. This book is a comprehensive analysis of legal fictions in private law and a blueprint for reform.
This chapter examines seven (alleged) modern fictions of private law: (i) the equitable maxim that equity treats as done that which ought to be done; (ii) estoppel; (iii) volenti non fit injuria; (iv) the single meaning rule in defamation; (v) the common intention constructive trust; (vi) remoteness in negligence; and (vii) reading down exclusion clauses. I establish whether each of these devices is a Hard Fiction, a Soft Fiction or no fiction (the Nature Classification). I classify each device in terms of the Effect Classification developed in Chapter One. If a device has been found to be a Hard or a Soft Fiction, I go on to consider whether it should be retained or abolished in favour of a specific alternative. These evaluations of individual fictions lead to general insights, which are used in the development of the Acceptance Test in Chapter Four.
This chapter tells the history of legal fictions from the emergence of the common law in the twelfth century until the abolition of the forms of action in 1852. It begins with an overview of the procedural framework which allowed, and encouraged, fictions. It then considers eleven old fictions: (i) dominus remisit curiam; (ii) vi et armis; (iii) geographical fictions; (iv) bill of Middlesex; (v) the writ of quominus; (vi) benefit of clergy; (vii) pleading the belly; (viii) common recovery; (ix) trover; (x) ejectment; and (xi) quasi-contract. For each fiction, I identify the reason for its existence, its development, its manner of operation and its effect on the law. Importantly, the fictions are classified in a way which explains their survival or extinction. This Effect Classification distinguishes between Jurisdictional, Auxiliary and Essential Fictions. The Effect Classification plays a central role in the Acceptance Test, which is the thesis of the book.
This chapter argues that the relationship between tradition and change can be illuminated through a better understanding of how tradition is (re)produced. How do traditions emerge, how do appeals to tradition serve to justify decisions, and, in what ways does justifying a choice in terms of tradition exercises a constraint over the kind of decision that can be made? The first part of the chapter discusses Patrick Glenn's approach to these questions, as seen, for example, in his claim that tradition is 'massaged', always entails change, and cannot control its own boundaries. It then goes on to put his ideas to the test by examining a controversial Rabbinical innovation recorded in the Talmud; Hillel's introduction of the 'Prozbul' so as to secure loans that would otherwise have been cancelled each sabbatical year. A meta-analysis of how this institution has since been categorized by those within and outside the Talmudic tradition suggests that successful innovation depends on the ability of interpreters to convince the relevant audience(s) that it embodies the best efforts to continue the tradition. It concludes that anachronism may be the price we need to pay if fidelity to tradition is to be more than antiquarianism.
The book begins with a broad introduction situating the development of colonial law alongside the rise of the novel. The introduction offers an overview of the architecture of colonial sovereignty while also delving into its specifically legal context. From the move toward the codification of laws to the adjudication of cases in the Privy Council, the introduction reveals the ways in which the law provided a narrative for colonial lives. At the same time, the introduction shows how broader cultural narratives as represented in the era’s literature influenced the law. Even if, as is customarily claimed, the substance of law in the colonies was haphazard and drawn from multiple legal traditions, its authority was largely founded in claims to absolute sovereignty. The introduction frames the ways in which bloodline claims to the sovereignty of kingship were reconfigured in the colonies to enact a biopolitical sovereignty of race.
The Supreme Court mistakes submission for consent by constructing an alternative reality where police behave like the proverbial Officer Friendly. Court opinions direct judges to blame the victims of unconstitutional policing for submitting to police instead of exercising their rights. These fictions camouflage police aggression and racial profiling and allow it to thrive. Once we get rid of the consent doctrine, Terry v. Ohio must fall with it. The Supreme Court should review Terry’s balancing act, admit that the case was based on the false premise that people can choose not to cooperate, and this time include what we now know about the harms that flow from stop-and-frisk. Instead, the Supreme Court blew the chance in 2016 in Utah v. Strieff. Instead of overturning Terry, the Court expanded the government’s authority to control our liberty and our bodies. Because we can’t look to the courts to fix this, it’s more important than ever that readers recognize that stop-and-frisk leads the way in sapping constitutional rights. Legislators and progressive prosecutors, with the support of the public, can effectively abolish the “consent” excuse for violating the Constitution and end stop-and-frisk as we know it.
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