Legal Fiction Research Articles

Current Legal Fictions in Public Law

Current Legal Fictions in Public Law

The Case(s) of Thomasine Ostler: Gender, Fiction, and Theatre History in Common Law Court Records

Abstract This article asks what theatre historians can (and can’t) learn from the records of Thomasine Ostler in the court of King’s Bench between 1615 and 1619, during which period Ostler filed suit not only against her father, the actor John Heminges, but also the son of Walter Raleigh. Ostler’s name is not unfamiliar to scholars, but neither she nor the enrolments of her suits have been examined in detail, and both have been misunderstood or simply overlooked. The article hinges on a new way of working with the plea rolls of England’s common law courts, whose Latin entries have long been seen as limited repositories of ‘essential facts’ to be extracted from ‘smokescreens of formalism and legal fiction’. This article argues instead that plea rolls should be understood as sites of fiction-making, and uses Ostler’s suits to show why their constitution of character and plot should matter to theatre historians. The article thereby casts light on not just the ownership of playhouse shares contested by Ostler and Heminges, but the actions, motivations, and interpersonal relationships of all three parties in Ostler’s suits. It also challenges scholars to re-think the value of plea rolls as sources for women’s lives and stories.

Повторный лизинг как необходимая юридическая фикция

The article explores the issue of implementing the concept of re-leasing in Russia and examines the main fea-tures of the current regulatory and law enforcement practice concerning transactions that are currently used by civil turnover participants instead of this construct. The main obstacles preventing the direct extension of finan-cial lease regulation to this category of transactions without the introduction of legal fiction have been studied. The article evaluates the key advantages and, consequently, the market’s demand for such a construct in leas-ing services, as confirmed by judicial practice and the position of the Supreme Court of the Russian Federation. Additionally, the article considers methodological aspects of financial accounting and the differentiation of re-leasing as a subtype of financial leasing from rental (operational leasing), and offers proposals for amending the current legislation based on the Ministry of Economic Development’s draft law, with revisions that take into account the protection of the rights and legitimate interests of all parties to the re-leasing agreement.

In Search for the Better Sentence: Legal Fictions in Thirteenth Century Icelandic and Norwegian Laws

ABSTRACT This article posits the existence of legal fictions (Lat. fictio legis) in the customary and royal laws of Norway and Iceland. It argues that legal fictions played a significant role in the installation of the Norwegian king as a third party in all penal cases in Iceland, as well as in the introduction of a new idea of justice in the form of equity (Lat. aequitas, Gr. epikeia). In its treatment of the existence of Roman influences in Icelandic and Norwegian laws, this article argues that, regardless of the evidence in favour or against such influences, attention should be devoted to the creative process of adoption of legislative techniques and how these tools were appropriated in the process of administering justice and law-making in both Iceland and Norway.

Liberty, the Maria Luz Incident and the Liminal Legal Status of Chinese Indentured Labourers and Japanese Licensed Prostitutes

Abstract While covering the same ground as recent scholarship on the emancipatory potential of the Maria Luz incident, this article takes a radical departure, arguing that the background to the incident was British desire to disrupt the Macao trade in Chinese labour to Peru; that the legal focus of the ad hoc tribunals was not on any nascent human right to free the Chinese men and minors from being trafficked to Peru but on who owned and controlled their labour; and that the release of Japanese licensed prostitutes from their contracts was an unintended consequence of the legal fiction that the Japanese legal system was comparable with the principles of British common law.

Shares owned by a limited liability company : grounds and consequences

The object of the study is the legal facts that lead to the emergence of rights to a share in the authorized capital of a limited liability company (hereinafter referred to as the company). The author examines the consequences of the appearance of a share owned by the company. The legislation provides for two types of shares in the authorized capital of the company, which can exist simultaneously. The first type arises as a result of payment by the participant of the authorized capital, which in return for the contributed property receives an indefinite right of participation. It is this right that is hidden behind the share owned by the participant. The second type has a derivative character and arises from the decisions of the supreme governing body or the behavior of the participant and belongs to the company throughout the year. The purpose of the work is to develop and construct new theoretical provisions on the grounds for the emergence and consequences of a share owned by the company. Research objectives: to determine the legal facts of the emergence of rights to a share in the authorized capital of the company, to systematize and classify the grounds for their occurrence and consequences. The following methods were used in conducting a study: permissive regulation, normativism, general contexts of a philosophical and legal nature and national law and order. The science of civil law is closely related to legal regulation, therefore, the doctrinal understanding of some constructions affects the consolidation of certain categories in the rule of law. This is exactly the category of the share owned by the company. It was found that the constructions associated with the transfer or acquisition by the company of rights to a share in its authorized capital are a legal fiction. The grounds for the emergence of a share owned by the company were classified, depending on the will of the latter: the first group consists of bilateral reimbursable transactions, and the second - two unilateral transactions. In both cases, the consequences are the same - the corporate legal relations arising from the right of participation and binding between the company and the participant are terminated. Three options for the sale of the share owned by the company were identified: the division of the former participant's right of participation among the remaining ones, sale to a predetermined buyer and repayment with a simultaneous decrease in the authorized capital and an increase in the size of the participants' shares while maintaining their nominal value.

Assets As A Legal Subject In Efforts To Recover State Financial Losses In Corruption Crimes

Corruption is a problem that results in high financial and economic losses in Indonesia. UNCAC has launched recommendations for countries to make arrangements regarding Non-Conviction Based asset Forfeiture (NCB) since 2003 which aims to recover maximum state financial losses. This is based on the fact that the state losses recovered are not proportional to the state financial losses incurred due to corruption crimes. The research used is normative juridical with a statutory approach, conceptual approach, and comparison with other countries. The conception of assets as legal subjects in the NCB is based on the theory of legal fiction where assets in their position as legal subjects make them seem "guilty" when the way of use or the process of obtaining them is against the law. Assets in this case are considered to be able to perform a legal act that can be accounted for as happened in several cases in the United States, the Philippines, Thailand, not to mention Indonesia. Thus, because it focuses on the "fault" of the object, asset forfeiture can still be carried out even though the object or asset has changed hands. Legislation in Indonesia has actually adopted the concept of NCB, but it does not fulfill the basic essence of the concept where the goal is to recover state losses arising from corruption maximally and quickly. Therefore, laws governing asset forfeiture must be made specifically to accommodate this, one of which is through the bill on asset forfeiture.

Bentham, Iser, and the Necessity of Fiction

Despite the intense reception and critical discussion which Wolfgang Iser’s work on the reading process and the esthetics of reception (Rezeptionsästhetik) received throughout the 1970s and 80s in Anglo-American literary criticism, his later ambitious attempt to sketch out a “literary anthropology” with the help of a general theory of fiction was almost completely ignored outside of his immediate German context. This is especially lamentable from the perspective of law and literature approaches to legal and literary fiction since Iser’s argument for the anthropological “grounding” of fictions as acts of motivated and strategic “feigning” (fingieren) develops out of a careful analysis and assessment of Jeremy Bentham’s Theory of Fiction. Iser’s discussion of Bentham does not only present a rare case of acknowledgement of Benthamian notions about fictions from the perspective of continental literary theory, it also illustrates the way in which the discussion of fiction in general may serve to foster a more robust interdisciplinary perspective in regard to legal and literary practices of storytelling and narration. 1 Since Iser’s theory of (literary) fiction has been perceived from rather different angles and with a diverging range of comprehension by Anglo-American and European audiences, respectively, the essay will first attempt to introduce and place Iser’s discussion of fiction and the imaginary within the larger disciplinary context and his overarching interest and investment in a literary anthropology. After a more general presentation of the various elements in his larger work, the paper will briefly look at the “anthropological” prospects which Iser had pursued from early on throughout his critical work, culminating in The Fictive and the Imaginary. The second half of the essay will then take a closer look at Iser’s particular interest in and detailed discussion of Jeremy Bentham’s Theory of Fiction, to reveal how Iser’s own anthropological project could derive a central impulse and trajectory from his intense reading of Bentham. In particular, I am interested in how Iser interprets Bentham’s use of legal fictions to project a general theory of fiction, and how Iser then uses the concept of necessity or “need” to gradually translate and transfer Bentham’s theoretical premises to match and support his own conceptualization of the fictive, the real and the imaginary. Iser’s particular understanding of “doing fiction,” I will conclude, might be of considerable value for the interdisciplinary engagement with legal and literary fictions.

What’s in a Name? Legal Fictions and Philosophical Fictionalism

This paper uses analytic philosophy to prevent merely verbal disputes about the concept of fiction within discussions on fictiones iuris. It provides a survey of potentially fruitful connections between legal fictions and fictionalism. More specifically, I will argue that by enriching current accounts of legal fictions in legal theory with insights from (1) the philosophy of language on fictional speech and from (2) contemporary metaphysics on philosophical fictionalism, it seems natural to explore the position that talk involving fictiones iuris is structurally an exemplification of elliptical speech. Such fictionalism about legal fictions illuminates why prominent condemnations of fictions in law – e.g. as blatant falsehoods, shady fraudulences, or legal defects – are theoretical myths, since they fail to distinguish between analytically distinct (ontological, epistemic, alethic, semantic, and evaluative) levels. Moreover, a fictionalist account might even sharpen our sense of which legal fictions are more “innocent” than others. I will begin by introducing philosophical fictionalism (II), before the fictiones iuris will be characterized as an operation in legal reasoning by consulting the Leibnizian reconstruction of Roman Law’s epistemology (III). Sections IV and V seek to provide further clarifications on the ‘fictional’ / ‘fictitious’ distinction as well as the heterogeneity of fictionalist research questions. Section VI then contains a little guided tour through the different analyses of the concept of fiction(s) within fictionalism. Subsequently, I will show how insights from those discussions contribute to demystify some of the most prominent allegations raised against legal fictions (VII). Fictionalism about legal fictions, Section VIII tentatively suggests, might not only harmonize with both classic and recent treatments of legal fictions, but help to also highlight their epistemic values. In slogan form: fictiones iuris are instruments to preserve legal truths worth having.

Big Lies, Drag Shows, and Legal Fictions

Today, the United States faces a relentless offensive of lies and falsehoods, as we grapple with the fallout from election denialism and conservative forces work tirelessly to advance anti-LGBTQ laws that directly challenge the validity of LGBTQ identities. Although it may be appealing to dismiss these shocking lies and falsehoods as legal fictions, they are nothing of the sort. They are not legal fictions in the traditional sense because they are not offered as patently false statements. More importantly, such characterization disregards the uniquely constitutive power of the law. This article builds on my earlier observations regarding a similar misuse of the term “legal fiction” in the context of chattel slavery and the doctrine of discovery. By revisiting the controversy in a contemporary frame, it offers an opportunity to study, in real-time, the attempted construction of legal regimes that rest on errors, lies, and the relentless demonization of the Other. It concludes that just as there was nothing fictive about repressive legal systems that spanned centuries and brutalized millions, there is nothing fictive about our current democratic crisis. To the contrary, it is imperative that we remain clear-eyed about the nature and power of the falsehoods that undergird both the Big Lie and the new anti-LGBTQ laws in order to develop effective strategies to refute them. We dismiss them as legal fictions at our peril.

Navigating the Pitfalls of Counterfactuality: Disciplinary and Interdisciplinary Approaches to Legal Fictions

The introductory essay on legal fictionality engages with the practice of legal fictions from Roman Law to the twenty-first century, and with the attempts of legal scholarship to conceptualize this particular form of legal imagination. It will discuss the major questions established in the past, with a particular emphasis on the classical understanding of legal fictions as “untrue” or “counterfactual” assumptions—a dichotomy that has pervaded legal thinking for centuries. It will argue that the classical approach is outdated and in urgent need of revision, also demonstrating that theories of other disciplines are better equipped to adequately deal with the issue, from the early debates on truth to more recent positions, such as possible world theory and institutional theories of fictionality. The essay will mainly draw on analytic philosophy and literary theory, but will also invoke more recent legal scholarship that engages with inter- or transdisciplinary approaches. Authors include James, Bradley, Kelsen, Vaihinger, Cohen, Lewis, Meinong, Fuller, Neurath, Rescher, Habermas, Rorty, Glasersfeld, Goodman, Routley, Searle, Genette, Beardsley, Wolterstorff, Currie, Walton, Eco, Anderegg, Doležel and Pavel.

The Reception of Vaihinger in Civil Law Scholarship

In 1911, Vaihinger’s Philosophy of “As-If” established a comprehensive doctrine of fictions in various fields of science – drawing, in particular, on legal fictions, which, in his view, are prime examples of scientific fictions. This article examines Vaihinger’s reception in legal scholarship and the actual influence of his work based on various reactions after 1911. In particular, the potential consequences of this philosophical work for legal practice and the use of fictions as “legal tools” will be the subject of a more detailed analysis. This article provides the first English compilation and translation of Vaihinger’s reception in German legal scholarship and practice. In contrast to the common perception that Vaihinger’s theorization of fictions was isolated in the German scholarship of his contemporaries, this contribution shows to what extent the status of fictions within the law was already debated before Vaihinger’s Philosophy of “As-If,” and was continued, further developed, and expanded in the ensuing scholarly debate. This research might also allow us to determine the impact of the philosophical perspective of fictionalism on German legal scholarship and facilitate conclusions on its subsequent attention among practitioners and scholars and their understanding of fictions in law.

Pleasures of Liminality

Since the comprehensive theorization of liminality and its attributes by the Scottish anthropologist Victor Turner in the late 1960s and 1970s, the concept of liminality has been applied to more than the threshold experience of individuals. As liminality in general describes a state of transition, the concept has been expanded to include rather different spaces, genres, and conditions. In this article, I propose liminality as a threshold concept that might offer a new and different angle for looking at legal and literary fiction(s). Liminality might allow us to bridge the conceptual gaps between the disciplines with regard to the general use and function of fiction(s) and fictionality in law and in literature; it may thus prove to be valuable for interdisciplinary approaches in both fields. I will, however, not attempt to formulate a new theory of fiction, since in contrast to the numerous and not always successful attempts at defining fiction(s) and fictionality, I am not interested in locking down either phenomena in law and in literature, but rather in identifying and highlighting some common aspects. Liminality, I argue, lends itself profitably to the cross-disciplinary orientation of an approach which addresses both legal and literary perspectives. It appears to be particularly suited to bring out the functions of fictions and fictionality in both law and literature, which is ultimately to translate the merely imaginable into something conceivable.

Riverfront Victorian (with Ghost): Architectural Fact, Legal Fiction

Riverfront Victorian (with Ghost): Architectural Fact, Legal Fiction

Clearing the king’s conscience: tyranny and legal fiction in the New Laws of 1542

ABSTRACT This essay argues that the New Laws of 1542 responded both legislatively and narratively to contemporary suspicions that Spanish rule in America constituted a tyranny, which, if true, would invalidate Charles V’s exclusive rights of sovereignty and property on the continent. To affirm the legitimacy of Charles’s authority, the New Laws showed him exercising good governance: reforming the corrupt Consejo de Indias, expanding the duties of the lackadaisical Audiencias, restricting the privileges of abusive encomenderos, and mandating the good treatment of his Amerindian vassals. The changes that the New Laws prescribe for the councilors’, oidores’, and encomenderos’ behavior tell the story of a righteous monarch defending the public good against the incursions of greedy and faithless subordinates, suggesting that they—not he—are the true authors of tyranny in Spanish America.

Article: The Subtle Knife of Separability: Legal Fictions of Consent to Arbitration and the Problem of Conditions Precedent

The seminal House of Lords decision in Fiona Trust is best known for setting out the ‘one-stop shop’ presumption vis-à-vis the construction of arbitration clauses. Just as important, but often overshadowed, is the requirement it lays down that a challenge to the validity of the arbitration agreement nestled within a surrounding contract must be directed specifically to the arbitration agreement; a challenge that is merely ‘parasitic’ to a general challenge to the surrounding contact will not suffice to impeach the arbitration agreement. This article suggests that this dimension of Fiona Trust in fact requires the acceptance of a legal fiction in relation to the parties’ consent to the arbitration agreement (the ‘Legal Fiction of Untainted Consent’, or ‘LFUC’), which ought properly to be recognized. This article then considers the recent Court of Appeal decision in The Newcastle Express, which involved a challenge to the existence of the arbitration agreement premised upon a condition precedent to the existence of the surrounding contract remaining unfulfilled. This article argues that a modified version of the LFUC (the ‘Legal Fiction of Complete Consent’, or ‘LFCC’) can potentially apply to such ‘condition precedent’ cases, and concludes by conceptualizing and defending a potential LFCC doctrine. arbitration, agreement, separability, validity, fiction, consent

Legal Fictions in Various Forms of Victim Participation

Legal Fictions in Various Forms of Victim Participation

The Legal Construction of and Legislative Issues Concerning Tourist Taxes: A Comparative Law Case Study

Abstract The purpose of this study is to describe the legal construction of and problems related to legislative issues concerning tourist taxes. It is based on analysis of the regulations contained in the conditions for the collection of local taxes, which result primarily from the provisions of the Polish Tax Code. These were compared with the laws of Slovakia and the Czech Republic. From a methodological point of view, we decided to focus on the regulations in force in one of the most famous tourist destinations in Poland, Zakopane, located near the border with Slovakia and the Czech Republic. The research shows that the legal solutions applied in Poland are flawed. In Poland, the tourist tax can as a rule only be levied in locations where certain levels of air pollution are not exceeded; however, this is not followed in practice. This leads to our claim that the legal solutions in this area should be changed. Maintaining the solutions currently in force in Poland leads to a situation in which legal fictions are allowed. We suggest the introduction of solutions similar to those found in the Czech Republic and Slovakia, where the tourist tax is not dependent on air pollution. The characteristic feature of this tax should be that it is levied on all types of stays, regardless of the purpose of the stay, the type of contract between the guest and the accommodation provider or the place where the guest stays.

Цифровой горожанин: вопросы правосубъектности

The article analyzes the problem of regulatory regulation of digital counterparts of citizens in the infosphere of the city, taking into account the potential development of artificial intelligence. The author explores the possibility of recognizing the technical and legal image of a modern city dweller endowed with artificial intelligence, legal fiction and quasi-subject of law.

Legal science fiction—a non-conventional form of legal education?

Legal science fiction—a non-conventional form of legal education?