Legal Fictions in Private Law

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.

Exploiting legal fictions in circumventing legitimate rights in marital property

The Marriage is the norm of life and living in the family’s embrace under the shade of affection and tranquility is a goal that everyone who takes this step seeks, and the happiness and balance of the family can only be achieved by obtaining what can be achieved from the requirements of a decent life.But not everything that a person wishes to realize, some have intervened Factors and inconveniences make married life impossible to continue, and the most important of these factors, according to a scientific study, is money According to ourIslamic law, the offspring must be legitimate, and this will not happen except through legal marriage, and in the verse it is associated. Money with children because it has a strong influence and a close link to married life, which in turn is considered a partnership between two parties. The spouses may not be successful in completing this partnership, and the matter ends in divorce, and often the woman is forced to demand her legal and material rights. In this research, I will discuss, in particular, the tricks that some lawyers use to make things difficult, or to prevent the divorced woman from having her rights, especially material ones.

Administrative Justice in the Transitional States

This chapter surveys the state of academic knowledge, conceptual consistency, and theoretical debate relevant for two subtopics of administrative justice narrative: the legal treatment of administrative silence and the alternative dispute resolution tools. The legal fictions associated with administrative silence and the interplay between the two avenues of dispute solving—administrative and judicial—are a persistent preoccupation of the administrative law discourse in modern times. This is even more significant in transitional countries, where the legal tradition was interrupted by political changes and restarted decades later. The chapter seeks to identify and provide a survey of these recurring themes in administrative justice research from the perspective of transitional (former Communist) democracies from Central and Eastern Europe (CEE), taken as a case study. It identifies the challenges posed by the administrative silence and by the adoption of ADR tools meant to alleviate the burden from the courts. The chapter concludes that the success of different (sometimes competing) approaches is highly dependent on the legal culture of the system in which they are implemented.

Hebrew Legal Fictions and the Development of Deuteronomy

Scholars have long proposed that a subset of biblical laws in Deuteronomy 19–25 is rooted in an older collection of family laws. These laws include Deut 21:15–17, the case of a man with two wives; Deut 22:13–19, the case of a man who accuses his wife of adultery; Deut 22:28–29, the case of an assaulted virgin; Deut 24:1–4, the case of a two-time divorcee; Deut 25:5–10, the case of a widow and her negligent in-law; and several others. These and several other texts bear striking parallels to the Mesopotamian legal-pedagogical genre of fictional cases, however, suggesting that the biblical texts reflect an analogous group. Only later were these units supplemented and put to new ends, an act that created the illusion of a law collection in Deuteronomy.

Echoes of Contracts in the Hebrew Legal Fictions

Three biblical laws—Exod 21:7–11, the case pertaining to the daughter sold as a slave-wife; Deut 21:15–17, the case of the man with two wives and two sons; and Deut 25:5–10, the case of the widow and the reluctant levir—concern matters that regularly occur in private contracts from the ancient Near East: the sale of daughters by fathers in debt, the bequeathing of inheritance shares to multiple sons, and the obligation to care for widowed women. Deuteronomy 25:5–10 makes for a particularly strong case study, in that it exhibits striking parallels to wills from the ancient city of Emar (modern-day Tell Meskene, Syria). Parallels in content between Deut 25:5–10 and the Emarite wills suggests that the biblical law was modeled on comparable Israelite/Judahite contracts and/or lists of contract clauses. The same conclusion applies to Exod 21:7–11 and Deut 21:15–17, two texts that likewise are marked by contract terminology.

Ethical and Legal Responsibility of Multinational Corporate Groups for a Fair Share of Taxes

This paper deals with the question whether there are reasons to deem multinational corporate groups ethically or legally responsible for paying their fair share of taxes. Ethical concepts argue that companies should generally be held responsible, but these findings contradict the mainstream market theory that understands companies as legal fictions and therefore not ethically but merely legally responsible. In contrast, we base our argumentation on the political-cultural market theory. We find that this theory provides reasons to ascribe an ethical responsibility for paying their fair share of taxes to multinational corporate groups. We argue, moreover, that this ethical responsibility also speaks for a legal responsibility. The prevailing tax law, particularly the arm's length principle, does generally not see groups as tax subjects. This currently missing legal responsibility gives reasons to rethink tax law. Therefore, we analyze whether the OECD Pillar One proposal may be an alternative to existing law.

International Legal Fictions: Lessons from the South China Sea Award

This paper examines the use of a specific international legal fiction. It is claimed that a legal fiction was confirmed by the Tribunal in the South China Sea Arbitration (2016). The paper asks whether this is an effective legal fiction. The paper will argue that this is not so, pointing to the difficulties that the fiction necessarily creates. From this example, lessons may be learned of the phenomenon of legal fictions of international law generally, and, crucially, of their effectiveness.

Part VI Refugee Rights and Realities, Ch.50 Non-refoulement

This chapter highlights the most fundamental of all obligations owed to refugees—that of non-refoulement. The raison d’être of the obligation continues to provoke debate about the validity of the lines drawn between refugees, other beneficiaries of the obligation, and other migrants, and the way the purported provider of surrogate protection—the State—is implicated in the production of forced migration. That background or deep structure of the State system assists in explaining the phenomenon explored in the chapter: the interaction between shrinking and expansive approaches to non-refoulement. The chapter first outlines the sources of the obligation, noting the obligation’s place in the Refugee Convention and other treaties as well as its status as customary international law, and the corresponding beneficiaries of the obligation. It then examines the scope of the obligation, with emphasis on States’ attempts to divest their responsibilities through legal fictions and extraterritorial immigration enforcement. The chapter also discusses the concept of constructive or disguised refoulement—that is, when an asylum seeker spontaneously leaves the country of asylum as a result of their treatment in that country.

A Dose of Law

This chapter argues that disability was central to the production of racialized medical knowledge in the antebellum years. As white southern physicians professionalized, they constructed racial discourses that dovetailed with disabling legal fictions of blackness. The criminal, property, and manumission laws of slavery analogized blackness and disability by overemphasizing the state of enslaved people’s bodies, while slave codes metaphorically “handicapped” blacks in society through pass laws, literacy laws, and the denial of citizenship rights. Samuel Cartwright, Josiah Nott, and others borrowed from this legal lexicon and invented new conditions and theories of black abnormality. Enslaved women, sexuality, reproductive health, and the imagined link between hereditary defects and racial inferiority played a major role in these conversations and positioned physicians as “experts” of black bodies.