Pierre Olivier distinguishes between two radically different concep-tions of legal fictions: on the one hand, the conception of legal fiction developed by the commentators of the Middle Ages, which culminates in Bartolus’s defini-tion; on the other hand, the conception developed by the 19th Century German scholar Gustav Demelius, who was followed, among others, by Joseph Esser. The main difference between the two approaches is individuated by Olivier in the fact that, while the former consider legal (...) class='Hi'>fictions as essentially implying an actual fic-tional element, the latter deny this. In other words, according to Demelius and those who follow him, the term “legal fiction” is a misnomer. In this article, I first provide an example of a legal fiction. In the second and third section, I rely on this example to analyze and assess the two competing accounts. Finally, in the fourth part, I advance a syncretistic account of legal fictions, which should thus point to a possible middle ground between the two competing positions. As it is often the case, there is probably some truth to both accounts; the problem – I will argue – is that both theories tell only a part and not the whole of the story. More precisely, it will be argued that legal fictions essentially involve the structure of “as if”-statements, and that the one-sidedness of the two competing accounts derives from the fact that one focuses too much on the “if”-component (the assumption), whereas the other focuses too much on the “as”-component (the comparison). (shrink)

The purpose of this paper is to offer some critical remarks on the so-called pragmatist approach to the regulation of robotics. To this end, the article mainly reviews the work of Jack Balkin and Joanna Bryson, who have taken up such ap- proach with interestingly similar outcomes. Moreover, special attention will be paid to the discussion concerning the legal fiction of ‘electronic personality’. This will help shed light on the opposition between essentialist and pragmatist methodologies. After a brief introduction (...) (1.), in 2. I introduce the main points of the methodological debate which opposes pragmatism and essentialism in the regulation of robotics and I examine how legal fictions are framed from a pragmatist, functional perspective. Since this approach entails a neat separation of ontological analysis and legal rea- soning, in 3. I discuss whether considerations on robots’ essence are actually put into brackets when the pragmatist approach is endorsed. Finally, in 4. I address the problem of the social valence of legal fictions in order to suggest a possible limit of the pragmatist approach. My conclusion (5.) is that in the specific case of regulating robotics it may be very difficult to separate ontological considerations from legal reasoning—and vice versa—both on an epistemological and social level. This calls for great caution in the recourse to anthropomorphic legal fictions. (shrink)

This essay examines the use of fictions in the reasoning of the House of Lords and United Kingdom Supreme Court in the context of two recent lines of authority on English tort law. First, the essay explores the relevance of counter-factual scenarios to liability in the tort of false imprisonment, in the light of the Supreme Court decisions in Lumba and Kambadzi. The second series of decisions is on causation in negligence claims arising from asbestos exposure. These cases have (...) revealed fundamental, ongoing judicial disagreement about the nature and extent of the exceptions made to general principles. The cases are also shown to lend force to Del Mar’s argument about the diachronicity of legal fictions. Overall, it is argued that such fictions play an important role in common law reasoning. (shrink)

Quite often, for one or the other purpose, the fact (or phenomenon) that does not exist is presented to the society or individuals as the real, really existing although it (the fact or phenomenon) simply does not exist in the real life. And often the term “fiction” is used to describe such phenomena. Although fiction is considered an inseparable companion of a social life, the question arises what the actual (true) fiction is and whether the use of it in criminal (...) proceeding does not mean an intentional law maker’s (or the person’s applying the law) fraud, deceit directed towards the addressee of the applicable law. Fiction and its impact on criminal proceedings is analyzed in this article. Features, characterizing fiction are discussed here as well. (shrink)

I have three aims in this essay. I want to offer an example of an interdisciplinary historical inquiry combining literary criticism with the relatively new field of critical legal studies. I intend to use this historical inquiry to argue that the ambiguity of literary texts might better be understood in terms of an era’s social contradictions rather than in terms of the inherent qualities of literary language or rhetoric and, conversely, that a text’s ambiguity can help us expose the (...) contradictions masked by an era’s dominant ideology. I try to prove my assertion by applying my method to Herman Melville’s three most famous short works—“Benito Cereno,” “Bartleby, the Scrivener,” and Bill Budd, Sailor—works dealing with the law and lawyers and widely acknowledged as ambiguous.1 I will base my critical inquiry into these stories on Melville’s relationship with his father-in-law, Lemuel Shaw, who, while sitting as the chief justice of the Supreme Judicial Court of Massachusetts from 1830 to 1860, wrote some of the most important opinions in what Roscoe Pound has called “the formative era of American law.”2Before I get started, I should clarify what this study does not entail. By using Shaw and his legal decisions in conjunction with Melville’s fiction, I am not conducting a positivistic influence study. My method will not depend on the positivist assumption that Shaw’s legal opinions can be used to illuminate Melville’s texts only when his direct knowledge of Shaw’s opinions can be proved. Nor will I limit myself to a traditional psychoanalytic reading: my emphasis is on political and social issues, and too often these issues are deflected by translating them into psychological ones. At the same time, I recognize that critics concerned with political and social issues too often neglect questions raised by a writer’s individual situation. I compare Shaw to Melville not to reduce Melville’s politics to psychology but to prevent a political study from neglecting the political implications of psychology, to remind us—as the title of Fredric Jameson’s book The Political Unconscious reminds us—that psychological questions always have political implications. 1. See Herman Melville, “Benito Cereno,” “Bartleby,” and Billy Budd, Sailor, “Billy Budd, Sailor” and Other Stories, ed. Harold Beaver ; all further references to these works will be included in the text.2. See Roscoe Pound, The Formative Era of American Law . For discussions of Melville and Lemuel Shaw, see Charles Roberts Anderson, Melville in the South Seas, Columbia University Studies in English and Comparative Literature, no. 138 , pp. 432-33; Charles H. Foster, “Something in Emblems: A Reinterpretation of Moby-Dick,” New England Quarterly 34 : 3-35; Robert L. Gale, “Bartleby—Melville’s Father-in-Law,” Annali sezione Germanica, Istituto Universitario Orientale di Napoli 5 : 57-72; Keith Huntress, “ ‘Guinea” of White-Jacket and Chief Justice Shaw,” American Literature 43 : 639-41; Carolyn L. Karcher, Shadow over the Promised Land: Slavery, Race and Violence in Melville’s America , pp. 9-11 and 40; John Stark, “Melville, Lemuel Shaw, and ‘Bartleby,’ “ in Bartleby, the Inscrutable: A Collection of Comentary on Herman Melville’s Tale “Bartleby the Scrivener,” ed. M. Thomas Inge , all further references to this work, abbreviated JA, will be included in the text. Brook Thomas teaches English and American literature at the University of Hawaii, Manoa. He is the author of James Joyce’s “Ulysses”: A Book of Many Happy Returns and is at work on a study of the relations between law and literature in antebellum America. (shrink)

Advances in life-saving technologies in the past few decades have challenged our traditional understandings of death. Traditionally, death was understood to occur when a person stops breathing, their heart stops beating and they are cold to the touch. Today, physicians determine death by relying on a diagnosis of ‘total brain failure’ or by waiting a short while after circulation stops. Evidence has emerged, however, that the conceptual bases for these approaches to determining death are fundamentally flawed and depart substantially from (...) the established biological conception of death. We argue that the current approach to determining death consists of two different types of unacknowledged legal fictions. These legal fictions were developed for practices that are largely ethically legitimate but need to be reconciled with the law. The considerable debate over the determination of death in the medical and scientific literature has not informed the public that vital organs are being procured from still-living donors and it seems unlikely that this information can remain hidden for long. Given the instability of the status quo and the difficulty of making the substantial legal changes required by complete transparency, we argue for a second-best policy solution: acknowledging the legal fictions involved in determining death to move in the direction of greater transparency. This may someday result in more substantial legal change to directly confront the challenges raised by life-sustaining and life-preserving technologies without the need for fictions. (shrink)

Legal Fictions: Studies of Law and Narrative in the Discursive Worlds of Ancient Jewish Sectarians and Sages. By Steven D. Fraade. Supplements to the Journal for the Study of Judaism, vol. 147. Leiden: Brill, 2011. Pp. xix + 627. $251.

What are legal fictions? Professor Lon Fuller discussed the matter at some length. One interpretation of his answer is this: they are lies that are not intended to deceive. This solution fails, in the end, to be convincing. But some remarks of Fuller provide the clue to another way of looking at the problem: fictions are means of changing the application of the law by relying on a tension between two classifications of fact.

When Philip Sidney defends poetry by defending the methods used by poets and lawyers alike, he relies on the traditional association between fiction and legal procedure--an association that begins with Aristotle. In this study Kathy Eden offers a new understanding of this tradition, from its origins in Aristotle's Poetics and De Anima, through its development in the psychological and rhetorical theory of late antiquity and the Middle Ages, to its culmination in the literary theory of the Renaissance. Originally published (...) in 1986. The Princeton Legacy Library uses the latest print-on-demand technology to again make available previously out-of-print books from the distinguished backlist of Princeton University Press. These editions preserve the original texts of these important books while presenting them in durable paperback and hardcover editions. The goal of the Princeton Legacy Library is to vastly increase access to the rich scholarly heritage found in the thousands of books published by Princeton University Press since its founding in 1905. (shrink)

Whether causing flash crashes in financial markets, purchasing illegal drugs, or running over pedestrians, AI is increasingly engaging in activity that would be criminal for a natural person, or even an artificial person like a corporation. We argue that criminal law falls short in cases where an AI causes certain types of harm and there are no practically or legally identifiable upstream criminal actors. This Article explores potential solutions to this problem, focusing on holding AI directly criminally liable where it (...) is acting autonomously and irreducibly. Conventional wisdom holds that punishing AI is incongruous with basic criminal law principles such as the capacity for culpability and the requirement of a guilty mind. -/- Drawing on analogies to corporate and strict criminal liability, as well as familiar imputation principles, we show how a coherent theoretical case can be constructed for AI punishment. AI punishment could result in general deterrence and expressive benefits, and it need not run afoul of negative limitations such as punishing in excess of culpability. Ultimately, however, punishing AI is not justified, because it might entail significant costs and it would certainly require radical legal changes. Modest changes to existing criminal laws that target persons, together with potentially expanded civil liability, are a better solution to AI crime. (shrink)

The article is focused on studying the philosophical and legal nature of fundamental human rights and freedoms, which are interpreted as natural and inherent in a person from birth. It is shown that the “naturalness” of rights and freedoms is a legal fiction. In reality, natural rights and freedoms have a sociocultural, that is, “artificial” character. They strengthen the achieved level of guarantees of individual freedom and humanity in public relations.

Without extending the historical analysis, this article analyzes the relationship between the legal concept of person with regard to the notion of living independently. The concept is normatively established in Article 19 of the CRPD and is presented as a legal fiction. The legal technique of fictio iuris is the premise for analyzing contemporary problems, for example, the attribution of responsibilities to non-human personalities, such as robots. The article, however, develops the problem of attributing rights to persons (...) with disabilities. The contraposition of robots and disabled people, understood as opposing visions of anthropological and human models, is part of the philosophical dispute between humanism and post- or transhumanism. The conception of man appears different if created in the image and likeness of God, or as the fruit of evolution from primates, or as a transhumanist entity that can be replaced by the robot. The latter vision is rooted in the mechanization of the mind triggered by cybernetics and cognitive sciences and referable to problems of justice theory and political philosophy concerning the inclusion in society of disabled people. In this article I will limit myself to analyzing, against the background of this complex problem, the link between person, legal fiction and the right to disability starting from the criticism addressed by Nussbaum to Rawls based on the convention and following the methodology developed by Marchisio and Curto in order to clarify the legal connection between thirdness, disability, and person.However, I go one step further by including the issue of disability as justice within the evolution of the notion of the legal person, through the inclusion of fictio iuris and rhetorical methodology in positive law, as a criterion for the interpretation of art. 19 CRPD. (shrink)

Literature reveals the intense efforts of moral imagination required to articulate what justice is and how it might be satisfied. Examining a wide variety of texts including Shakespeare's plays, Gilbert and Sullivan's operas, and modernist poetics, Poetic Justice and Legal Fictions explores how literary laws and values illuminate and challenge the jurisdiction of justice and the law. Jonathan Kertzer examines how justice is articulated by its command of, or submission to, time, nature, singularity, truth, transcendence and sacrifice, marking (...) the distance between the promise of justice to satisfy our moral and sociable needs and its failure to do so. Poetic Justice and Legal Fictions will be invaluable reading for scholars of the law within literature and amongst modernist and twentieth century literature specialists. (shrink)

Often understood as synonymous with “oral history” in Indigenous title and rights cases in Canada, “oral tradition” as theorized by Jan Vansina is complexly imbricated in the European genealogy of “scientific history” and the archival science of Diplomatics with roots in the development of property law and memory from the time of Justinian. Focusing on Tsilhqot’in Nation v. British Columbia, which resulted in the first declaration of Aboriginal title in Canada, this paper will discuss Tsilhqot’in law in the context of (...) the court’s deployment of Vansina’s theory and its genealogy, and conclude that “oral tradition” functions as a legal fiction enabling the court to remain in the familiar archive of its own historiography while claiming to listen to the Elders. (shrink)

The dead donor rule (DDR) governs procuring life-prolonging organs. They should be taken only from deceased donors. Miller and Truog have proposed abandoning the rule when patients have decided to forgo life-sustaining treatment and have consented to procurement. Organs could then be procured from living patients, thus killing them by organ procurement. This proposal warrants careful examination. They convincingly argue that current brain or circulatory death pronouncement misidentifies the biologically dead. After arguing convincingly that physicians already cause death by withdrawing (...) treatment, they claim no bright-line differences preclude organ removal from the living. The argument fails for those who accept the double effect doctrine or other grounds for distinguishing forgoing life support from active, intentional killing. If the goal is determining irreversible loss of somatic function, they correctly label current death pronouncement a “legal fiction.” Recognizing a second, public policy meaning of the term death provides grounds for maintaining the DDR without jeopardizing procurement. (shrink)

Definitions of death are often referred to as legal fictions since brain death was conceived in the mid-twentieth century. Reference to legal fiction is generally paired with bioethicists’ concern that it facilitates post-mortem tissue donation and the health system generally, by determining death earlier on the continuum of dying and availing more viable tissue and therapeutic resources for others. The author argues that spatio-legal theory, drawing from legal geography, can account for the heterogeneity of effects (...) that the fiction has in spatially managing bodies (e.g., physicians, patient, family) at the bedside. The legal fiction is produced in physicians’ socio-legal practices, coordinating decision-making according to geographies of scarcity and severable, self-contained live- and dead-bodies. The determination liminally exists between private and public, enacting a sterile, affectless ordering of bodies but administered in the spectacle of sovereign death-making, conveying authority whilst managing patient’s and family’s consents. Spatialising traces of anatamo-politics and biopolitics thereby congeal and are enacted heterogeneously in and through the legal form of the fiction, securing preferred constructions of the body in the management of mortality. These spatio-legal features of the legal fiction are described from their collision with case law and literature that document competing nomoi produced from or secreted by antinomian bodies. (shrink)

In comparison with the creation of language, translation from one language to another offers greater challenges for those working with languages, be the text for translation concerned with philosophy, literature or law, all of which are arguably highly professional domains. When it comes to the translation of legal fiction, a highly interdisciplinary genre, even experienced practicing translators tend to fall short of being well equipped with sufficient legal knowledge and terminologies, not to mention the capacity to detect the (...) subtleties that are inherent in a legal term. All of the problems above account for the often less-than-satisfactory quality of legal fiction in translation, misleading or confusing the potential target audience. After making the prior theoretical investigations, this paper attempts to analyze some problems in the current Chinese translation of such legal novels as Franz Kafka’s Der Prozess and Charles Dickens’s Bleak House, and then take a corrective stance, hoping to arouse the translators’ awareness of the importance of this genre, as well as their awareness of the essential professional skills they still need to acquire, so that they can reach equivalent accuracy in legal technicalities, as well as subtlety and nuance that reflect the legal spirit. (shrink)

Brain death, or the determination of death by neurological criteria, has been described as a legal fiction. Legal fictions are devices by which the law treats two analogous things (in this case, biological death and brain death) in the same way so that the law developed for one can also cover the other. Some scholars argue that brain death should be understood as a fiction for two reasons: the way brain death is determined does not actually satisfy (...) legal criteria requiring the permanent cessation of all brain function, and brain death is not consistent with the biological conception of death as involving the irreversible cessation of the functioning of an organism as a whole. Critics counter that the idea that brain death is a legal fiction is deceptive and undemocratic. I will argue that diagnosing brain death as a hidden legal fiction is a helpful way to understand its historical development and current status. For the legal‐fictions approach to be ethically justifiable, however, the fact that brain death is a legal fiction not aligned with the standard biological conception of death must be acknowledged and made transparent. (shrink)

A legal fiction is a knowingly false assumption that is given effect in a legal proceeding and that participants are not permitted to disprove. I offer a semantic pretence theory that shows how fiction-involving legal reasoning works.

This paper examines the legal justification for water fluoridation (WF) in the United Kingdom. While current legislation clearly permits WF, there is a degree of obfuscation concerning whether the practice amounts to medication, and were it to be acknowledged that fluoridated water constitutes a medicine, the legality of the practice would not be so obvious. It is concluded that an accurate and honest interpretation of the law would result in the conclusion that fluoridation does constitute medication, as it seeks (...) to improve health by the addition of a chemical. (shrink)

Anti-foundationalism is a central topic in recent legal scholarship. The critical legal studies movement (CLS) has mounted a strong challenge to the traditional belief that legal materials (constitutions, statutes, and precedents) determine legal outcomes and constrain judicial decision making. This scholarship has overlooked, however, the degree to which the debate between traditional legal determinacy and anti-foundational indeterminacy is yet another manifestation of a continuous debate in Western thought – one that has its roots in pre-Socratic (...) rhetoric and philosophy.This paper traces the indeterminacy thesis back to the contest of ideas between Protagoras and Plato. I examine two well-known and elated Protagorean notions: first, that two arguments (logoi) are always set in opposition to one another with regard to every matter and, second, that the rhetorician can always ‘make the weaker argument the stronger.’ I contend that taking these Protagorean notions seriously – perhaps even more seriously than self-avowed anti-foundationalists customarily do – leads paradoxically to a modified endorsement of foundationalism that is nevertheless wholly consistent with the Protagorean project. Calling upon texts by Aristotle, Seneca and René Girard, I focus upon how fictionality in representations of Platonically conceived Truth reveals a binarization in thought that is simultaneously untenable and unavoidable. (shrink)

A theoretical platform for a much‐needed change in the provision of healthcare based on restoring the autonomy of doctor–patient relationships.

Cet article porte sur la fiction de la rétroactivité dans les contrats conditionnels, un outil très ancien du droit qui remonte à l’Antiquité romaine. Tout d’abord, nous abordons la notion de contrat avec condition suspensive, à savoir un contrat dont l’effet est subordonné à un fait futur et incertain. Comme on le verra dans la deuxième partie, ce type de contrat est souvent lié à la fiction de la rétroactivité de la condition : lorsque la condition est satisfaite, on fait (...) comme si la condition était satisfaite au moment où le contrat a été stipulé. Dans la troisième partie, nous nous penchons sur la stratégie de rationalisation développée par Gottfried Wilhelm Leibniz: bien que fausse, la rétroactivité nous permet d’aboutir à des conclusions vraies dans le cadre d’une métaphysique déterministe. Enfin, après avoir soulevé des objections contre la solution leibnizienne, nous développons une approche alternative: la rétroactivité nous conduit à des conclusions vraies parce qu’on peut aboutir aux mêmes conclusions à partir d’un principe d’équité ou, à défaut, à partir d’une loi qui demeure seulement possible mais pertinente. (shrink)

According to estimates more than 400 biobanks currently operate across Europe. The term ‘biobank’ indicates a specific field of genetic study that has quietly developed without any significant critical reflection across European societies. Although scientists now routinely use this phrase, the wider public is still confused when the word ‘bank’ is being connected with the collection of their biological samples. There is a striking lack of knowledge of this field. In the recent Eurobarometer survey it was demonstrated that even in (...) 2010 two-thirds of the respondents had never even heard about biobanks. The term gives the impression that a systematic collection of biological samples can constitute a ‘bank’ of considerable financial worth, where the biological samples, which are insignificant in isolation but are valuable as a collection, can be preserved, analysed and put to ‘profitable use’. By studying the practices of the numerous already existing biobanks, the authors address the following questions: to what extent does the term ‘biobank’ reflect the normative concept of using biological samples for the purposes of biomedical research? Furthermore, is it in harmony with the so far agreed legal–ethical consensus in Europe or does it deliberately pull science to the territory of a new, ambiguous commercial field? In other words, do biobanks constitute a medico-legal fiction or are they substantively different from other biomedical research protocols on human tissues? (shrink)

This paper argues that the writings of Hans Kelsen deserve more attention from those engaged in the debate on secularization and political theology. His lifelong struggle with various forms of legal‐political metaphysics is an identifiable thread in many of his writings. Kelsen’s concern with the theological‐political issues found in the theory of the state (Staatslehre) is far from being marginal. Kelsen claims that his theory aims at resolving the traditional dualism of law and state prevailing in the Staatslehre and (...) contributes to an “uncompromising destruction of one of the most effective ideologies of legitimacy.” Kelsen maintains that the contents of this “ideology of legitimacy” derive from both political metaphysics and the deep‐seated ancient ways of thinking on nature and society. In order to illustrate this thesis, I propose calling this phenomenon “totemism of the modern state.”. (shrink)

Writers of fiction have always confronted topics of crime and punishment. This age-old fascination with crime on the part of both authors and readers is not surprising, given that criminal justice touches on so many political and psychological themes essential to literature, and comes equippedwith a trial process that contains its own dramatic structure. This volume explores this profound and enduring literary engagement with crime, investigation, and criminal justice. The collected essays explore three themes that connect the world of law (...) with that of fiction. First, defining and punishing crime is one of the fundamental purposes of government,along with the protection of victims by the prevention of crime. And yet criminal punishment remains one of the most abused and terrifying forms of political power. Second, crime is intensely psychological and therefore an important subject by which a writer can develop and explore character. Athird connection between criminal justice and fiction involves the inherently dramatic nature of the legal system itself, particularly the trial. Moreover, the ongoing public conversation about crime and punishment suggests that the time is ripe for collaboration between law and literature in thistroubled domain.The essays in this collection span a wide array of genres, including tragic drama, science fiction, lyric poetry, autobiography, and mystery novels. The works discussed include works as old as fifth-century BCE Greek tragedy and as recent as contemporary novels, memoirs, and mystery novels. Thecumulative result is arresting: there are "killer wives" and crimes against trees; a government bureaucrat who sends political adversaries to their death for treason before falling to the same fate himself; a convicted murderer who doesn't die when hanged; a psychopathogical collector whose quitesane kidnapping victim nevertheless also collects; Justice Thomas' reading and misreading of Bigger Thomas; a man who forgives his son's murderer and one who cannot forgive his wife's non-existent adultery; fictional detectives who draw on historical analysis to solve murders. These essays begin aconversation, and they illustrate the great depth and power of crime in literature. (shrink)