Legal Fictions in Theory and Practice

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.

Legal Fictions in Theory and Practice

Author: Maksymilian Del Mar

Publisher: Springer

ISBN: 3319092324

Page: 413

View: 275

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.

Legal Fictions in Theory and Practice

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.

Legal Fictions in Theory and Practice

Author: Maksymilian Del Mar

Publisher:

ISBN: 9783319092331

Page:

View: 712

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.

The Average Consumer in Confusion based Disputes in European Trademark Law and Similar Fictions

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
 ...

The Average Consumer in Confusion based Disputes in European Trademark Law and Similar Fictions

Author: Rasmus Dalgaard Laustsen

Publisher: Springer Nature

ISBN: 3030263509

Page: 435

View: 704

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.

Fictional Discourse and the Law

Frederick Schauer, “Legal Fictions Revisited”, in: Legal Fictions in Theory and
Practice, ed. William Twining & Maksymilian Del Mar (Cham: Springer, 2015),
113–29, though Schauer admits “a complex relation between legal truth and truth
 ...

Fictional Discourse and the Law

Author: Hans J. Lind

Publisher: Routledge

ISBN: 0429887612

Page: 272

View: 158

Drawing on insights from literary theory and analytical philosophy, this book analyzes the intersection of law and literature from the distinct and unique perspective of fictional discourse. Pursuing an empirical approach, and using examples that range from Victorian literature to the current judicial treatment of rap music, the volume challenges the prevailing fact–fiction dichotomy in legal theory and practice by providing a better understanding of the peculiarities of legal fictionality, while also contributing further material to fictional theory’s endeavor to find a transdisciplinary valid criterion for a definition of fictional discourse. Following the basic presumptions of the early law-as-literature movement, past approaches have mainly focused on textuality and narrativity as the common denominators of law and literature, and have largely ignored the topic of fictionality. This volume provides a much needed analysis of this gap. The book will be of interest to scholars of legal theory, jurisprudence and legal writing, along with literature scholars and students of literature and the humanities.

Form and Substance in the Law of Obligations

20 See generally on fictions M Del Mar and W Twining (eds), Legal Fictions in
Theory and Practice (Cham, Springer, 2015). For a helpful review of this book,
see L Shmilovits, 'Legal Fictions in Theory and Practice' (2017) 76 CLJ 683.

Form and Substance in the Law of Obligations

Author: Andrew Robertson

Publisher: Bloomsbury Publishing

ISBN: 1509929460

Page: 504

View: 995

This volume explores the relationship between form and substance in the law of obligations. It builds on the rich tradition of legal thought that deploys the concepts of form and substance to inform our understanding of the common law. The essays in this collection offer multiple conceptions of form and substance and cover an array of private law subjects, scholarly approaches and jurisdictions. The collection makes it clear that the interplay between form and substance is a key element of the dynamism that characterises this area of the law.

Artefacts of Legal Inquiry

Del Mar, M (2015a) 'Legal Fictions and Legal Change in the Common Law
Tradition', in Del Mar, M and Twining, W (eds) Legal Fictions in Theory and
Practice (Dordrecht: Springer) 225. Del Mar, M (2015b) 'Introducing Fictions:
Examples, ...

Artefacts of Legal Inquiry

Author: Maksymilian Del Mar

Publisher: Bloomsbury Publishing

ISBN: 1509936181

Page: 400

View: 971

What is the value of fictions, metaphors, figures and scenarios in adjudication? This book develops three models to help answer that question: inquiry, artefacts and imagination. Legal language, it is argued, contains artefacts – forms that signal their own artifice and call upon us to do things with them. To imagine, in turn, is to enter a distinctive epistemic frame where we temporarily suspend certain epistemic norms and commitments and participate actively along a spectrum of affective, sensory and kinesic involvement. The book argues that artefacts and related processes of imagination are valuable insofar as they enable inquiry in adjudication, ie the social (interactive and collective) process of making insight into what values, vulnerabilities and interests might be at stake in a case and in similar cases in the future. Artefacts of Legal Inquiry is structured in two parts, with the first offering an account of the three models of inquiry, artefacts and imagination, and the second examining four case studies (fictions, metaphors, figures and scenarios). Drawing on a broad range of theoretical traditions – including philosophy of imagination and emotion, the theory and history of rhetoric, and the cognitive humanities – this book offers an interdisciplinary defence of the importance of artefactual language and imagination in adjudication.

Folk Law

The collection begins by defining various forms of “folk law,” drawing on examples from many cultures. The second section provides historical profiles of pioneering figures in the study of folk law.

Folk Law

Author: Alison Dundes Renteln

Publisher: Univ of Wisconsin Press

ISBN: 9780299143442

Page: 1037

View: 675

In every culture there exists unwritten law—obligations and prohibitions that are understood and passed on, and transgressions that are punished. Folk Law, a comprehensive two-volume collection of essays, examines this meeting place of folklore and jurisprudence. The contributors explore the historical significance and implications of folk law, its continuing influence around the globe, and the conflicts that arise when folk law diverges from official law. The collection begins by defining various forms of “folk law,” drawing on examples from many cultures. The second section provides historical profiles of pioneering figures in the study of folk law. Following sections examine field research techniques used to identify folk laws; aspects of folk law within the realm of rituals, songs, and other forms of expressive culture; instances where folk law comes into conflict with national law, and the role of folk law in the international arena. The volumes also include description and analysis of two approaches to folk law—the rule approach, in which scholars dissect the codes that underlie folk law, and the case approach, in which researchers examine specific cases involving folk law. Valuable for students and scholars of law, folklore, or anthropology, this extensive casebook marks a rare interdisciplinary approach to two important areas of research.

Contemporary Pragmatism

... from within legal thought as to validate the claim that within legal theory and
practice the idea of pragmatism has become just another legal fiction . Denis
Brion's book , Pragmatism and Judicial Choice , is focused upon the judicial
process ...

Contemporary Pragmatism

Author: John R. Shook

Publisher: Rodopi

ISBN: 9789042019119

Page: 191

View: 212

Chaucer s legal Fiction

... Rhetoric , and the Practice of Theory in Literary and Legal Studies ( Durham ,
N.C .: Duke University Press , 1989 ) ; and Richard Weisberg , Poethics , and
Other Strategies of Law and Literature ( New York : Columbia University Press ,
1992 ) ...

Chaucer s  legal Fiction

Author: Mary Flowers Braswell

Publisher: Fairleigh Dickinson Univ Press

ISBN: 9780838639177

Page: 170

View: 382

For centuries, Chaucer has been associated with law. This study, however, is concerned less with the overt in Chaucer that concerns law than with the concealed and private: a specific body of materials -- records from the medieval English law courts that the poet evidently read, studied, discussed with colleagues, and then threaded into his texts. This book examines the effects of those documents on the so-called "minor" poems, The House of Fame, and The Canterbury Tales.

Theory and Practice of Classic Detective Fiction

detective — Hercule Poirot and, later, Miss Marple and a host of others — who
almost always succeeds in standing between the lawbreaking and the law-
abiding world. Indeed, in many ways The Mysterious Affair at Styles, Poirot's first
case, ...

Theory and Practice of Classic Detective Fiction

Author: Jerome Delamater

Publisher: Greenwood Publishing Group

ISBN: 9780313304620

Page: 202

View: 424

Essays that explore major theoretical viewpoints of the detective fiction genre and then apply those theories to the novels of Agatha Christie and her heirs in the British ratiocinative tradition.

Poetic and Legal Fiction in the Aristotelian Tradition

In this discussion, in other words, the old debt of Aristotelian psychology to the
fundamentally legal model of judgment and action reemerges as a reciprocal
relation. ... 179-80), Hamlet not only reiterates the theory but also puts it into
practice.

Poetic and Legal Fiction in the Aristotelian Tradition

Author: Kathy Eden

Publisher: Princeton University Press

ISBN: 1400858321

Page: 210

View: 597

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.

The Theory of Law and Civil Society

CRITICISMS OF THEORIES ON LEGAL FICTIONS . ... referred to its traditional
character or to the authority of the written word , but to the principles on which it
was founded , the function of legal fictions dwindled more and more in practice .

The Theory of Law and Civil Society

Author: Ágost Pulszky

Publisher: Рипол Классик

ISBN:

Page: 443

View: 867

The American Slave Code in Theory and Practice Its Distinctive Features Shewn by Its Statutes Judicial Decisions Illustrative Facts

... accordingly the topic occupies no little space in the reported decisions
collected together in “ Wheeler's Law of Slavery . ... reader may be impressed
with the matter - of - fact nature of the record , and not fancy himself reading “
legal fiction .

The American Slave Code in Theory and Practice  Its Distinctive Features Shewn by Its Statutes  Judicial Decisions    Illustrative Facts

Author: William GOODELL (Reformer.)

Publisher:

ISBN:

Page: 411

View: 496

Origin and Development of Islamic Law

It was brought into agreement with the theory of the shari'a by the hiyal or "legal
devices," which were often legal fictions. ... But their function in Roman law was to
provide the legal framework for new requirements of the practice with the ...

Origin and Development of Islamic Law

Author: Majid Khadduri

Publisher: The Lawbook Exchange, Ltd.

ISBN: 1584778644

Page: 395

View: 262

The Origin and Development of Islamic Law. A committee from The Middle East Institute, led by George Camp Keiser, Chairman of the Board of Governors, enlisted outstanding authorities on Middle East law to contribute chapters on specific topics. Includes an extensive glossary of Islamic legal terms. With a foreword by Robert H. Jackson (Associate Justice, Supreme Court of the United States). Majid Khadduri [1909-2007] was a Professor of Middle East Studies at the School of Advanced International Studies of The Johns Hopkins University and Director of Research and Education at the Middle East Institute in Washington, D. C. He was the author of several books in English and Arabic on Middle Eastern affairs, including War and Peace in the Law of Islam.Herbert J. Liebesny [1911-1985] was a member of the Advisory Board of the Middle East Journal and author of The Government of French North Africa and Foreign Legal Systems: A Comparative Analysis.

Republicanism in Theory and Practice

The grandchildren will be French other than by a legal fiction. At the outset we
should not impose responsibilities that are too great upon foreigners in order that
we are not led to inflict too harsh punishments upon them. In recent years those ...

Republicanism in Theory and Practice

Author: Iseult Honohan

Publisher: Routledge

ISBN: 1134247699

Page: 272

View: 317

Recent claims that civic republicanism can better address contemporary political problems than either liberalism or communitarianism are generating an intense debate. This is a sharp insight into this debate, confronting normative theory with historical and comparative analysis. It examines whether republican theory can address contemporary political problems in ways that are both valuable and significantly different in practice from liberalism. These expert authors offer contrasting perspectives on issues raised by the contemporary revival of republicanism and adopt a variety of methodological approaches to address the practical implications of republican thought within a coherent thematic framework. This book also *clarifies core themes and contested areas of republican thought, especially the notion of liberty, the specific political institutions needed to realize it, and the nature of solidarity among citizens. * shows how republicanism continued to influence the development of liberal thought in nineteenth century Britain * examines the development of alternative republican discourses, including the established political practice and ideology of the French republican tradition * applies republican perspectives to contemporary political concerns such as the creation of social trust and the expansion of public accountability * explores the implications of republican theory for policy areas including houses, education and marriage in diverse multicultural societies This book will be of great interest to researchers and students studying republicanism in political science history, social policy and education. In addition, it is a valuable resource for those concerned with citizenship, democratic theory, multiculturalism, nationalism and patriotism, and politics beyond the nation-state.