The collection will be of interest to theorists and historians of legal reasoning, as well as scholars and practitioners of the law more generally, in both common and civil law traditions.
Author: Maksymilian Del Mar
This multi-disciplinary, multi-jurisdictional collection offers the first ever full-scale analysis of legal fictions. Its focus is on fictions in legal practice, examining and evaluating their roles in a variety of different areas of practice (e.g. in Tort Law, Criminal Law and Intellectual Property Law) and in different times and places (e.g. in Roman Law, Rabbinic Law and the Common Law). The collection approaches the topic in part through the discussion of certain key classical statements by theorists including Jeremy Bentham, Alf Ross, Hans Vaihinger, Hans Kelsen and Lon Fuller. The collection opens with the first-ever translation into English of Kelsen’s review of Vaihinger’s As If. The 17 chapters are divided into four parts: 1) a discussion of the principal theories of fictions, as above, with a focus on Kelsen, Bentham, Fuller and classical pragmatism; 2) a discussion of the relationship between fictions and language; 3) a theoretical and historical examination and evaluation of fictions in the common law; and 4) an account of fictions in different practice areas and in different legal cultures. The collection will be of interest to theorists and historians of legal reasoning, as well as scholars and practitioners of the law more generally, in both common and civil law traditions.
60 It is argued in this book that legal fiction theory can accommodate these
tensions and provide the best means for ... William eds., Legal Fictions in Theory
and Practice (1st edn, Springer, 2015), 3 (a translation of Kelsen's original text in
Author: Rasmus Dalgaard Laustsen
Publisher: Springer Nature
This book contends that, with regard to the likelihood of confusion standard, European trademark law applies the average consumer incoherently and inconsistently. To test this proposal, it presents an analysis of the horizontal and vertical level of harmonization of the average consumer. The horizontal part focuses on similar fictions in areas of law adjacent to European trademark law (and in economics), and the average consumer in unfair competition law. The vertical part focuses on European trademark law, represented mainly by EU trademark law, and the trademark laws of the UK, Sweden, Denmark and Norway. The book provides readers with a better understanding of key aspects of European trademark law (the average consumer applied as part of the likelihood of confusion standard) and combines relevant law and practices with theoretical content and other related areas of law (and economics). Accordingly, it is an asset for policymakers and practitioners, as well as general readers with an interest in intellectual property law and theory.
Legal fictions (here viewed positively, not pejoratively) are necessary whenever
theory and practice are at odds (cf. rabbinic law).169 The conflicts of theory and
practice are threefold. (1) The first conflict results from how a law mediated solely
Author: Theodore J. Lewis
Publisher: Oxford University Press, USA
Few topics are as broad or as daunting as the God of Israel, that deity of the world's three monotheistic religions, Judaism, Christianity, and Islam, who has been worshiped over millennia. In the Hebrew Bible, God is characterized variously as militant, beneficent, inscrutable, loving, and judicious. Who is this divinity that has been represented as masculine and feminine, mythic and real, transcendent and intimate? The Origin and Character of God is Theodore J. Lewis's monumental study of the vast subject that is the God of Israel. In it, he explores questions of historical origin, how God was characterized in literature, and how he was represented in archaeology and iconography. He also brings us into the lived reality of religious experience. Using the window of divinity to peer into the varieties of religious experience in ancient Israel, Lewis explores the royal use of religion for power, prestige, and control; the intimacy of family and household religion; priestly prerogatives and cultic status; prophetic challenges to injustice; and the pondering of theodicy by poetic sages. A volume that is encyclopedic in scope but accessible in tone, The Origin and Character of God is an essential addition to the growing scholarship of one of humanity's most enduring concepts.
In fact the family is a unitary entity with pure common interest only in traditional
common - law theory ( i . e . , in legal fiction ) . A more accurate picture shows
divisions of labor and interest that have important political implications (
Author: William J. Crotty
In this volume, the study of legislatures has traditionally been a central preoccupation of political scientists. Legislatures provide good laboratories for testing theories and methodologies of significance in the discipline and, more broadly, for contributing to an understanding of how representative government works.
Studies of Law and Narrative in the Discursive Worlds of Ancient Jewish
Sectarians and Sages Steven Fraade. CHAPTER THIRTEEN THEORY,
PRACTICE, AND POLEMIC IN ANCIENT JEWISH CALENDARS 1. The Problem
Since the ...
Author: Steven Fraade
Drawing on the ancient writings of the Dead Sea Scrolls and early rabbinic Judaism, this book comprises studies that explore the intersections of scriptural interpretation, narrative fiction, and legal rhetoric. It proposes and models methods of a non-reductive historiography for each of these communities and for both of them in comparison.
Through an examination of the U.S. Supreme Court's written output during a recent landmark term, this book exposes many of the parallels between these two special kinds of language use.
Author: Karen Petroski
Contemporary legal reasoning has more in common with fictional discourse than we tend to realize. Through an examination of the U.S. Supreme Court's written output during a recent landmark term, this book exposes many of the parallels between these two special kinds of language use. Focusing on linguistic and rhetorical patterns in the dozens of reasoned opinions issued by the Court between October 2014 and June 2015, the book takes nonlawyer readers on a lively tour of contemporary American legal reasoning and acquaints legal readers with some surprising features of their own thinking and writing habits. It analyzes cases addressing a huge variety of issues, ranging from the rights of drivers stopped by the police to the decision-making processes of the Environmental Protection Agency--as well as the term's best-known case, which recognized a constitutional right to marriage for same-sex as well as different-sex couples. Fiction and the Languages of Law reframes a number of long-running legal debates, identifies other related paradoxes within legal discourse, and traces them all to common sources: judges' and lawyers' habit of alternating unselfconsciously between two different attitudes toward the language they use, and a set of professional biases that tends to prevent scrutiny of that habit.