Legal Fictions: Short Stories about Lawyers and the Law Jay Wishingrad Law in Literature: Legal Themes in Short Stories Elizabeth Villiers Gemmette

1996 ◽  
Vol 8 (2) ◽  
pp. 363-370
Author(s):  
C. R. B. Dunlop
Keyword(s):  
Short Stories ◽  
The Law ◽  
Law In Literature ◽  
Legal Fictions

Legal Fictions in Private Law

2022 ◽  
Author(s):  
Liron Shmilovits
Keyword(s):  
Legal System ◽  
Comprehensive Analysis ◽  
Private Law ◽  
History Of ◽  
The Law ◽  
Legal Fictions

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.

scholarly journals Social Facts, Legal Fictions, and the Attribution of Slave Status: The Puzzle of Prescription

2016 ◽  
Vol 35 (1) ◽  
pp. 9-30 ◽  
Author(s):  
Rebecca J. Scott
Keyword(s):  
New Orleans ◽  
Good Faith ◽  
Social Facts ◽  
Reconstruction Era ◽  
Siete Partidas ◽  
The Law ◽  
Legal Fictions ◽  
Point Of Reference

This article explores a core question in the law of slavery: how was an individual's status as slave or free socially discerned and formally adjudicated? Under the doctrine of “freedom by prescription,” a person who had in good faith “lived as free” could argue that the absence of exercise of ownership for a specified term of years extinguished a prior owner's title. In the medieval Siete Partidas of Alfonso the Wise, which continued as a legal point of reference in Louisiana well after the end of Spanish rule, both the law of status and the law of property confirmed this path to freedom. From 1808 onward, Louisiana jurists and legislators sought to eliminate the remnants of the doctrine, but it lingered in popular and even judicial consciousness. The 1853 kidnapping of a woman named Eulalie Oliveau, six of her children, and eleven of her grandchildren for sale in the New Orleans slave market brought the question of “freedom by prescription” back into the courts. The awkward resolution of that case, and the uncertain fate of Eulalie Oliveau and her children, foreshadowed Reconstruction-era struggles over the content of legal freedom and the rights that freedom might bring to those who had once been held as property.

Conclusion

2019 ◽  
pp. 263-266
Author(s):  
Alexander Sarch
Keyword(s):  
Criminal Law ◽  
Mental States ◽  
Legal Fiction ◽  
The Law ◽  
Legal Fictions ◽  
As If

The conclusion of Criminally Ignorant: Why the Law Pretends We Know What We Don’t provides an overview of the main takeaways from the book. At its broadest, this is a book about a common legal fiction: the criminal law’s practice of pretending we know what we don’t. Maybe one instinctively feels scandalized by legal fictions. It’s natural to want the law to be honest and accurate. Nonetheless, this book has tried to give reasons not to be so worried and actually get on board with the kind of legal fiction at issue here. The book has argued that equal culpability imputation involves a justified fiction that promotes valuable aims. At least when properly constrained, it is justified for the law to treat you as if you had certain culpability-relevant mental states (like knowledge of inculpatory facts or awareness of risks) that you didn’t literally possess. What justifies it? The same purposes the criminal law generally serves: protecting our core interests, rights, and values.

scholarly journals Prawo w filmie jako przejaw estetyki prawa i szczególny przypadek kierunku prawo i literatura

2021 ◽  
pp. 8-20
Author(s):  
Kamil Zeidler
Keyword(s):  
Fine Arts ◽  
Practical Aspect ◽  
Law And Literature ◽  
Aesthetic Value ◽  
Research Areas ◽  
The Law ◽  
Law In Literature ◽  
Research Stream ◽  
The One ◽  
Legal Aesthetics

If we put together and systematize research streams: law in film, law and literature, and aesthetics of law, it is easy to reach the conclusion that we are dealing with related subjects, with a certain overlap in research areas. The broadest term is aesthetics of law, whose scope covers the entire law and literature movement, meanwhile law in film is a more detailed aspect of the latter. Systematizing the aesthetics of law, we can close it in three aspects: the external one, the internal one, and the one called ‘law as a device for aesthetization’. The aesthetics of law in the external aspect deals with manifestations of law, legal inspirations, legal themes, symbols, signs, which were represented through centuries in fine arts. The subject of the aesthetics of law in the internal aspect is the law itself. The third aspect of the aesthetics of law focuses on law as a device for aesthetization of daily life. In the law and literature movement, the reflections concern either the inclusion of legislative and legal content in literary works (law in literature), or the literary, including aesthetic, value, of normative instruments, and more broadly, also other acts of applying the law (law as literature). A special case of this research stream is legal cinematography, where a film prepared on the basis of a screenplay is treated as a kind of narrative, justifying the statement that law in film further develops the law and literature movement. The practical aspect of such research – of legal aesthetics, law and literature, and law in film – concerns mainly the significance and influence on legal awareness, and on shaping the attitudes towards law. The key thing here is approaching the problem of influencing legal awareness through other means than the text of a normative instrument alone.

scholarly journals LEGAL FICTIONS FOR ADMINISTRATIVE COURTS

2019 ◽  
pp. 102-114
Author(s):  
Anna Barikova
Keyword(s):  
Correct Result ◽  
Judicial Process ◽  
Administrative Process ◽  
Legal Rules ◽  
Legal Fiction ◽  
The Law ◽  
Administrative Proceedings ◽  
The Right ◽  
Legal Fictions

Goal. The paper reveals features of applying administrative procedural legal fictions in order to avoid abuse of the right and evasion of the law when exercising procedural discretion. Methods. For achievement of research purposes, the author uses special legal methods of scientific knowledge: formal-logical, system-functional, formal-logical, comparative-legal. Results. Historiography of the legal fictions use has been dealt with. Essence of fictions has been highlighted in the paper as legal anomalies. The use of legal fictions in the administrative process has been detailed, taking into account the Grundnorm theory. The connection between legal fictions and legal regulations has been revealed. The legal fiction has been described as a reinterpretation of the facts of an event in order to make these facts compatible with the rule, and at the same time allowing to get the correct result. This is a type of legal fiction-reinterpreting X (or class X) as Y in order to avoid an “inconvenient”, unreliable, false, etc. result for the purposes of the law. As a rule, it is recognized that X is not Y. That is, the court considers the creation of a fiction as a legitimate action within the framework of the judicial process; the activity that could be performed without concealment as a discretely true category. Case law on the application of legal fictions has been described. It has been advised to use legal fictions when considering and resolving disputes, provided that there are false or clearly erroneous judgments in the provisions of existing applicable legal rules. As a consequence, time and resource costs for clarifying the facts of the case and over-motivating the judgment are minimized. Conclusions. Firstly, features of legal fictions have been highlighted, in particular, for achieving the goals and objectives of administrative proceedings. Secondly, the classification of arguments, methods and approaches to the application of such atypical regulators in the administrative process has been proposed by the “meta” degree: 1) on the fundamental metric – internal, or zero-order arguments; 2) at the derivative definitive level – by defining functional, structural and relative concepts.

Legal fictions and legal change

2013 ◽  
Vol 9 (4) ◽  
pp. 442-465 ◽  
Author(s):  
Maksymilian Del Mar
Keyword(s):  
Legal Reasoning ◽  
Legal Change ◽  
Legal Practice ◽  
The Law ◽  
Definition Of ◽  
Legal Fictions ◽  
Over Time

AbstractThis paper offers a definition of legal fictions and an evaluation of the role of legal fictions in legal practice, especially insofar as they enable legal change. The first part of the paper defines legal fictions as any suspension of one or more of the required operative facts leading to the imposition of an associated normative consequence, whether this suspension is introduced because of (1) the absence of proof of some previously required fact; or (2) the presence of proof to the contrary. The second part argues that legal fictions have an unjustifiably bad reputation as enablers of legal change. This paper makes a plea for seeing legal fictions as forms of tentative cognition that enable courts to communicate with each other, exploring whether a certain change in the law (i.e. precisely a suspension of a required operative fact in the imposition of a certain normative consequence) ought to be introduced at a more explicit level. Under the guise of this relational reading of legal reasoning, legal fictions become an instrument of careful experimentation – a way of testing the extent to which the potential introduction of a rule will be beneficial. Seen in this light, legal fictions are by no means signs of the immaturity of the system; they are, instead, dynamic resources that allow courts, over time, to balance flexibility and responsiveness with stability and predictability.

‘Reform or Convulsion’: Jeremy Bentham and the Peterloo Massacre

2019 ◽  
pp. 229-249
Author(s):  
Victoria Myers
Keyword(s):  
Law Reform ◽  
Jeremy Bentham ◽  
Popular Resistance ◽  
Parliamentary System ◽  
The Law ◽  
Law Courts ◽  
Systemic Violence ◽  
Legal Fictions

By 1819, Jeremy Bentham was fully aware that the law courts' entrenched practices, perverting and denying justice, were countenanced by parliamentary inaction and required not only law reform but reform of parliament itself - pushing the nation's choice to one between 'reform or convulsion'. This chapter demonstrates Bentham's understanding that, despite all the attention given to popular resistance and uprising, several sorts of violence dominated the British judicial and parliamentary system: violence-promoting language such as legal fictions, 'sinister interest' motivating corruption, as well as legalized violence through punishment. Bentham showed that, those with authority pursued sinister interests by taking the opportunities afforded by natural desires and the situations created by the system. The chapter argues that, through application of his utility principle and through ridicule (his rhetorical counter-violence), Bentham revealed systemic violence, undercut the fallacious and fiction-dependent arguments upholding the system, and challenged legal and parliamentary authority.

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