Legal Fictions in Private Law

2022 ◽  
Author(s):  
Liron Shmilovits

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.

Obiter ◽  
2021 ◽  
Vol 32 (1) ◽  
Author(s):  
Eltjo Schrage

The first contribution published in this edition is an abridged version of the inaugural lecture delivered by Professor Eltjo JH Schrage on 24 August 2009 in Port Elizabeth. The Faculty of Law is honoured that such an internationally esteemed jurist accepted the appointment as first Honorary Professor of the Faculty of Law in 2009. Prof Eltjo JH Schrage was born in Groningen. He studied law at the University of Groningen, where he obtained his doctorandus, a degree which is analogous to our master’s degree. In 1975 he defended his doctoral thesis entitled Libertas est facultas naturalis. Menselijke vrijheid in een tekst van de Romeinse jurist Florentinus (Human liberty in a text of the Roman jurist Florentinus). His academic career commenced in 1969 at the Free University, Amsterdam. In 1980 he was appointed as professor at the Free University in Roman Law and Legal History. In 1998 he became the director of the Paul Scholten Institute at the University of Amsterdam. Some of his other academic appointments include the following:• Chairperson: International Study Group on the Comparative Legal History of the Law of Restitution;• Chairperson: International Study Group on the Comparative Legal History of the Law of Torts;• Visiting Professor: University of Cape Town;• Visiting Fellow: Magdalen College, Oxford University as well as visiting professor at Oxford;• Visiting Professor: University of the North (now Limpopo) in Polokwane; and• Visiting Fellow: Trinity College, Cambridge University as well as visiting professor, Cambridge. Prof Schrage has published extensively in International journals in Dutch, English, German French, and Italian. He has edited, written and contributed to more than 30 books, and written more than 100 articles. He has been the supervisor of numerous doctoral students, including Prof Marita Carnelley of the University of KwaZulu-Natal and erstwhile member of the Faculty of Law, Nelson Mandela Metropolitan University and Prof André Mukheibir, Head of Department, Private Law of the Nelson Mandela Metropolitan University. He was also the promoter of the honorary doctorate awarded by the University of Amsterdam to the former chief justice of South Africa, Arthur Chaskalson in 2002. Prof Schrage has also acted as judge in the Amsterdam court since 1981. Prof Schrage is married to Anneke Buitenbos-Schrage and the couple have four children and one grandchild.


Antichthon ◽  
1972 ◽  
Vol 6 ◽  
pp. 63-73
Author(s):  
R.A. Bauman

Luigi Labruna makes a number of proposals, in his recent Vim fieri veto: alle radici di una ideologia, of considerable importance to both the legal and the political history of the later Republic. The basic theme of the work is the possessory interdict uti possidetis, but in furtherance of his avowed purpose of illuminating the juridical, political, economic and social background to this early possessory remedy the author moves freely and knowledgeably in a number of fields. It is well that it should be so. The delimitation of the boundaries of Roman private law in a purely juridical setting is and will always be an indispensable and rewarding discipline, but it is more and more coming to be realized that the law of a given society needs also to be seen in a wider ambit, not only for the better understanding of the law but also for the better understanding of the society. His successful application of this wider approach to the rather austere problems of the possessory interdicts marks Labruna’s work out as one of considerable significance and merit.


Author(s):  
Assoc. Prof, Dr. Nguyen Van Hiep ◽  

From a historical perspective, the article analyzes the human values in a number of Vietnamese laws such as Hinh Thu - the Ly Dynasty, Quoc trieu Hinh Luat- the Tran Dynasty, Quoc trieu Hinh Luat - the Le Dynasty, Hoang trieu luat le - the Nguyen Dynasty and the current Vietnamese legal system. From the human values in the history of Vietnamese law, the article suggests a number of issues of the applied methodology, practical and scientific significance of the human values for Vietnam's higher education in the context of industrial revolution 4.0.


Author(s):  
S.A. Sobolev

The article attempts to investigate general and particular issues of the social development of the domestic legal system in the modern knowledge of its history from a general theoretical standpoint on the example of a specific legal discipline - labor law. The problem of methodological order is considered when there is a confusion of law as an object of cognition with a real reflection of the formation and social development of its subsystems or structural components, which receive study at the sectoral level. Labor law is analyzed as a subsystem or the most important structural component of the legal system, while scientific research on various aspects of the history of labor legislation goes beyond the modern industry and academic discipline. The problem of the methodological order is the continuity and discontinuity of the very course of development of the domestic system of law and branches of law of the Russian Empire, the Soviet and modern periods. Attention is drawn to the fact that many modern labor law categories in the period before 1917 were absent in the legislation, but formed the content of legal acts and scientific research. In turn, labor relations were formalized by a contract of employment (personal employment), but the specifics of its regulation were determined by mining and factory legislation. Some problems of understanding the modern history of labor law are characterized, when in the general theoretical and branch educational and scientific literature on labor and civil law, concepts such as an employment contract and labor legislation are mixed, and labor law as a branch of law refers to private law. Based on the theoretical works of scientists of the Russian Empire, the Soviet and modern period, a combination of private law and public law foundations of labor law is shown.


Author(s):  
Sabahi Borzu

The modern doctrines of State responsibility and reparation are the result of more than 2,000 years of human thought. This chapter traces the history of some of the most important components of State responsibility and reparation. The origins of these concepts are found in the historical roots of the civil law doctrines of extra-contractual liability and the remedy of restitutio in integrum, from Roman times until their entry into European civil codes. It explains how the private law notions discussed entered into international law and how, from the fusion of these notions and concepts with those supplied through the evolving doctrines of reprisals, denial of justice, and diplomatic protection, the modern doctrines of State responsibility and reparation were born.


2019 ◽  
pp. 1-22
Author(s):  
Mahendra Pal Singh ◽  
Niraj Kumar

Examination of Indian legal history illustrates the presence of multiple legal orders that coexisted in India through the ages. Moreover, certain ‘modern’ conceptions of law were present in similar forms in India before the medieval period, contrary to Western assumptions. Largely ignoring these legal traditions, the British attempted to re-give law and legal systems to the Indians. This was part of the larger project of ideologically justifying the presence of the British Raj in India. The British used India’s extant legal diversity to argue for the lack of a dominant legal tradition, leading to the introduction of British common law as the law of the land.


2021 ◽  
pp. 222-250
Author(s):  
Stuart Banner

This chapter examines the status of natural law in the legal system over the past century. In law schools, natural law never ceased to be a topic of study. This academic interest in natural law has had almost no effect on the working legal system, where natural law has been relied upon by only the most idiosyncratic of judges and lawyers. The history of our use of natural law has nevertheless continued to exert influence on the legal system, which still contains doctrines and practices that were once based on the law of nature.


Author(s):  
Klimchuck Samet

This introductory chapter provides an overview of this book’s study of the history of equity. In his celebrated Lectures on Equity, FW Maitland famously declared that all that could be said in answer to what is distinctive of the law of equity is that it comprises ‘that body of rules administered by our English courts of justice which, were it not for the operation of the Judicature Acts, would be administered only by those courts which would be known as Courts of Equity’. If Maitland was right, then there is no reason to think the law of equity names something about which there could be philosophical foundations. The contributors to this volume share, for the most part, and in various degrees, the view that Maitland was wrong. Since at least the time of Aristotle, equity has captured the interest of philosophers, and that fascination continues today. As equity’s place in the legal system continues to evolve, equity’s correction of the law, equity’s distinctiveness, and equity’s moral dimensions will continue to remain central questions. Philosophical analysis of these aspects of equity in general and equity in common law legal systems promises to help in understanding and better shaping these developments.


2019 ◽  
Vol 4 (57) ◽  
pp. 492
Author(s):  
Paulo Roberto Ramos ALVES

RESUMOObjetivo: O presente artigo tem como objetivo a análise do desenvolvimento interno de um subsistema comunicativo no interior do Direito. Para tanto, parte-se do reconhecimento da problemática do risco biotecnológico como vetor de condução à formação de uma racionalidade parcial interna, suficientemente complexa para alcançar a possibilidade de gestão jurídica do risco biotecnológico.Metodologia: Trata-se de um estudo amparado na metodologia de observação sistêmica, e em pesquisas bibliográficas.Resultados: A visualização do risco biotecnológico como atrator evolutivo condicionante/condicionado não soluciona a problemática da contingência da distinção geneticamente-aplicável/geneticamente-inaplicável; mas, ao contrário, afirma a possibilidade de que, diante da não solução do problema, existem caminhos passíveis de construção pelo Direito. O risco biotecnológico, quando percebido mediante a distinção Direito/não-Direito, pode ser observado na forma de um atrator juridicamente condicionante, constrangendo o sistema à evolução a partir de situações que não mantém qualquer relação teleológica ou determinística, mas sim com a deriva estrutural presente na história da autopoiese sistêmica.Contribuições: Ao assumir-se a possibilidade de evolução do sistema jurídico, o estudo dá como contribuição a informação de que o risco biotecnológico passa a influenciar nas possíveis trajetórias adotadas pelo sistema, não a condicionando no sentido lato da expressão, mas possibilitando ao sistema utilizar o risco biotecnológico como norteador de suas operações internas (atrator juridicamente condicionante), bem como de sua capacidade de produzir ressonâncias direcionadas em outros sistemas sociais (atrator juridicamente condicionado).PALAVRAS-CHAVE: Evolução; diferenciação; indeterminação; risco biotecnológico. ABSTRACTObjective: To analyze the internal development of a communicative subsystem within the Law. Therefore, it is started by recognizing the problem of biotechnological risk as a driver for the formation of a partial internal rationality, which is complex enough to achieve the possibility of legal management of biotechnological risk.Methodology: This is a study based on the methodology of systemic observation and bibliographic research.Results: The visualization of biotechnological risk as a conditioning/ conditioned evolutionary attractor does not solve the issue of the contingency of genetically-applicable/genetically-inapplicable distinction; but, on the contrary, it affirms the possibility that, given the non-solution of the issue, there are paths that can be built by Law. Biotechnological risk, when perceived through the Legal/non-Legal distinction, can be observed in the form of a legally conditioning attractor, constraining the system to evolution from situations that have no teleological or deterministic relationship, but rather with structural drift present in the history of systemic autopoiesis.Contributions: By assuming the possibility of evolution of the legal system, the study contributes to the information that the biotechnological risk starts to influence the possible trajectories adopted by the system, not conditioning it in the broad sense of the expression, but enabling the system to use biotechnological risk as a guide to its internal operations (legally conditioning attractor), as well as its ability to produce targeted resonances in other social systems (legally conditioned attractor).KEYWORDS: Evolution; differentiation; indeterminacy; biotechnological risk.


Author(s):  
Butler William E

This introductory chapter briefly reflects on the history of the law of making treaties in Russia. Treaties constitute the earliest surviving documents by at least a century and perhaps more in not only the legal history, but the general history, of the Russian people. The chapter discusses multiple issues which were embedded in the treaties of the ninth and tenth centuries, such as the form and legal nature of the document, ratification procedures, and so on. It considers how these issues interact with the existence of an international legal system as well as a domestic one. The chapter also looks at Russia's especially post-Soviet Russia's-responses to these issues and expounds on the importance of addressing them.


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