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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.
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