Legal Fiction Research Articles

(Re)positioning Indigenous games in HPE: turning to criticality

ABSTRACT In 2011, the Australian national curriculum called for the inclusion of Indigenous histories, cultures and perspectives/knowledges, prompting Health and Physical Education (HPE) teachers in schools and academics within higher education have experimented with and reported upon different purposes and ways of teaching Indigenous Games. However, Australian schools remain sites of epistemic injustice, where the privileging of Western knowledges marginalises alternative voices and knowledge systems, maintaining disciplinary terra nullius [terra nullius means ‘empty land’ – it was a legal fiction, overturned by the High Court of Australia in 1992, used by British settler-colonisers to justify the invasion of Australia. In this context, we mean that Physical Education in Australia still assumes erroneously that Western knowledges are the only available knowledges]. Worryingly, experimentation with Indigenous games, by predominantly white educators with minimal understanding of Indigenous histories and cultures, has resulted in confusion and apprehension over their purpose and place in the curriculum, leading toward either omission or cultural appropriation, rather than deep, critical engagement with Indigenous Knowledges. Centring on the publication and implementation of Yulunga: Traditional Indigenous Games [Edwards, K., & Meston, T. (2009). Yulunga: Traditional indigenous games. Ausport. http://www.ausport.gov.au/participating/indigenous/resources/games_and_activities/full_resource], we reappraise the Australian approach toward Indigenous games, suggesting this work has occurred over three distinct time periods or ‘waves’. Conceptualising this work with the heuristic of ‘three waves’ provides a useful contribution to the field, revealing a lack of substantive progress in including Indigenous knowledges and perspectives in HPE. We argue HPE educators and researchers are complicit in the marginalisation and/or omission of Indigenous knowledges and perspectives and must shift current practice toward a ‘fourth wave’ of implementing Indigenous games with criticality. We call for a revisiting of Martin Nakata’s [(2002). Indigenous knowledge and the cultural interface: Underlying issues at the intersection of knowledge and information systems. IFLA Journal, 28(5-6), 281–291. https://do.org/10.1177/034003520202800513; Nakata, M. (2007). The cultural interface. Australian Journal of Indigenous Education, 36, 1–7. Nakata, M. (2011). Pathways for Indigenous education in the Australian curriculum framework. The Australian Journal of Indigenous Education, 40(1), 1–8. https://do.org/10.1375/ajie.40.1] theory of the Cultural Interface – a theory of critique of knowledge systems. Nakata [(2002). Indigenous knowledge and the cultural interface: Underlying issues at the intersection of knowledge and information systems. IFLA Journal, 28(5-6), 281–291. https://do.org/10.1177/034003520202800513] cautioned that Indigenous knowledges and perspectives cannot be simply dropped into contested knowledge domains. Now more than ever, knowledge of critical frameworks like Nakata’s are required to disrupt the entrenched white disciplinary praxis of Australian HPE.

The Role of 'Legislative Intent' and 'Legal Fiction' in Retrospective Law - Justification and Limitation

The Role of 'Legislative Intent' and 'Legal Fiction' in Retrospective Law - Justification and Limitation

Actual coverage of the funds in the account by order on physical evidence under Polish criminal procedure

The subject of this article is a consideration of recent changes to the current Polish criminal procedure. The changes concern in particular the investigation. Initially, the Supreme Court issued two resolutions, which eliminated the actual coverage of the funds in the account by order on physical evidence (this is a legal fiction - funds in an account are not physical objects). At that time, the public prosecutor could only use the "transaction suspension" or "blocking of an account" to freeze the funds. Later, the Polish legislator added Art. 236b to the Code of Criminal Procedure. The purpose of this provision is to outdate the above-mentioned resolutions. Instead of a suspension or blockade, the actual coverage of the funds in the account by order on physical evidence may take place. However, in the authors' opinion, this should only take place in the case of an ultima ratio action. This means, firstly, the end of the maximum duration of the "transaction suspension" or "blocking of an account" and, secondly, the impossibility to apply property collateral. These restrictions are not currently in Polish law. This means that the Polish public prosecutor can theoretically omit the provisions on the "transaction suspension" or "blocking of an account". This possibility applies to fiduciary currencies and virtual currencies. This paper may be useful in considering the options currently available to the public prosecutor in relation to a request for legal assistance to Polish law enforcement authorities which concerns the seizure of funds in an account.

Rekonstrukcja pojęcia prawniczego domniemania interpretacyjnego

Juridical presumptions, including interpretative juridical presumptions, have not been elaborated on in detail in theoretical and legal terms, although they are an interpretative tool often used in jurisdiction and literature. Recently there has been a revival of the discussion on the presumption of constitutionality (conformity with the constitution) of laws (statutes). Another example of an interpretative juridical presumption is the presumption of rationality of the legislator, based on the assumption of rationality of the legislator elaborated in the 1970s by Leszek Nowak and Jerzy Wróblewski. A comparative analysis of interpretative juridical presumptions with institutions such as legal presumptions and legal fictions allows to reconstruct the most important features of the former in terms of their structure and functions, and this in turn will allow to claim that interpretative juridical presumptions are directly referred to by the authorities applying the law in difficult cases in which it is impossible to complete the interpretation process without taking into account the basic values of the legal system, not directly expressed in this system or only sketched at the level of constitutional standards. Due to the special role that interpretative juridical presumptions play in the process of interpretation, their law-making function may be also discussed.

Fiktion und juristische Begriffsbildung

Legal fictions are usually defined as consciously false assumptions. This definition is suitable for distinguishing fictions from presumptions, but it conceals some important nuances about the role of fictions in a legal system. For this reason, this paper proposes an alternative definition of legal fictions as discrepancies between different conceptual systems. In doing so, it makes it possible to focus not primarily on external fictions, which consist in a discrepancy between legal terminology and colloquial language, but rather on internal fictions, which consist in a discrepancy between two versions of a legal conceptual system. The juxtaposition of two versions of a legal conceptual system makes it clear that the addition of an internal fiction, as the most trivial form of representation for the result of an analogy, increases the distinctiveness of a system in an expedient way, but at the cost of a significant loss of perspicuity. As long as the internal fiction plays only a marginal role, it can provide a clever and elegant solution. But when it assumes a structural role, it is accompanied by too great a loss of perspicuity, and is therefore an indication that the system could profitably be restructured by explicitly adjusting the meaning of some of its key concepts.

Liability Rules for Automated Vehicles: Definitions and Details

This paper explains how the law ought to assign liability for automated vehicle accidents by providing an example of a proposed statute. We advocate for the creation of the legal fiction of a “Computer Driver,” which can have negligence liability, anytime a court or jury determines that the Computer Driver’s behavior failed to imitate or exceed the level of care we would expect of an attentive and unimpaired Human Driver in similar circumstances. We then use this concept to explain how to determine contributory negligence and comparative fault when control of a vehicle is transferred from a Computer Driver to a Human Driver by specifying a portion of time during the take-over transition period in which the Human Driver cannot have contributory negligence or comparative fault as a matter of law. We have proposed and defended these views in contemporaneous traditional law review articles, but to achieve the needed regulatory reform, our suggestions must be presented in a form containing proposed statutory language for adoption by a legislature. To that end, we make our case in this paper by presenting proposed legal definitions and explanatory legislative history for use by legislatures to implement our recommended structure. We use this non-traditional presentation because we believe the complexity associated with automated driving technology can only be fully conveyed by providing the details in a precise way, with technical definitions and wording that should be familiar to engineers and safety specialists.

Large Legal Fictions: Profiling Legal Hallucinations in Large Language Models

Abstract Do large language models (LLMs) know the law? LLMs are increasingly being used to augment legal practice, education, and research, yet their revolutionary potential is threatened by the presence of “hallucinations”—textual output that is not consistent with legal facts. We present the first systematic evidence of these hallucinations in public-facing LLMs, documenting trends across jurisdictions, courts, time periods, and cases. Using OpenAI’s ChatGPT 4 and other public models, we show that LLMs hallucinate at least 58% of the time, struggle to predict their own hallucinations, and often uncritically accept users’ incorrect legal assumptions. We conclude by cautioning against the rapid and unsupervised integration of popular LLMs into legal tasks, and we develop a typology of legal hallucinations to guide future research in this area.

Current Legal Fictions in Public Law

Current Legal Fictions in Public Law

Enhanced Distinctiveness and Why “Strong Marks” Are Causing Us All Confusion

A “strong” trade mark, one which has a high level of distinctiveness, is entitled to a greater level of protection in the European Union, the United Kingdom and the United States than other weaker marks. The psychological and marketing evidence suggests that, in fact, stronger marks are less likely to be confused by consumers. Accordingly, courts and tribunals are required to find confusion in cases involving strong marks even where the facts do not support it. The antecedence for this legal fiction (normative correction or public policy choice) is confused, it makes the law conceptually uncertain and now that marks with a sufficient reputation are entitled to protection from dilution, the fiction has become unsupportable from a normative perspective. Indeed, it appears that a neutral approach – that is not taking into account that it is a “stronger” mark during any confusion analysis – does little, if any, harm to the proprietors of strong marks and clearly benefits competitors. It is argued therefore that the rule giving more protection to strong marks (whether it is inherent or acquired strength) should be abolished.

Morristown Memorial Hospital: The Nonprofit Property Tax Exemption Debate

ABSTRACT This case highlights nonprofit hospital organizations’ changing roles and relationships with their tax-exempt status and the communities they serve. Historically, nonprofit hospitals justified tax exemption by meeting community health needs but have evolved into extensive partnerships with for-profit organizations to obtain the resources necessary to provide state-of-the-art care. Unfortunately, these arrangements have raised issues regarding tax-exempt status, making nonprofit hospitals an increasing target of property tax exemption challenges for cash-strapped municipalities. This was the case when the property tax exemption of Morristown Memorial Hospital was called into question. The New Jersey Tax Court pointed to a complex structure in which nonprofit and for-profit interests were inextricably intertwined. It is held that, if modern nonprofit hospitals operate like this, they are essentially legal fiction. Students assess whether the Hospital satisfies the criteria for property tax exemption and debate the legitimacy of tax exemption given the changing nature of nonprofit hospital operations. Data Availability: Data are available from the public sources cited in the text. JEL Classifications: H22; H71; H75; I18; K34; L31.

FutureNewsCorp, or how the AI Act changed the future of news

Inspired by scenario writing methods to foster discussion on the societal implications of technology and regulation, the paper develops a ‘legal fiction scenario’ to anticipate the impact of the proposed European AI Act and examine some of the regulatory choices made. The paper tells the story of FutureNewsCorp – the largest news media company in Europe in the year 2043. The story of FutureNewsCorp is used for a critical analysis of the most recent draft of the AI Act and here, in particular, of the role of standardisation bodies and the division of responsibility between providers of AI systems and their professional users. Using the scenario method, the paper demonstrates that regulations like the planned AI Act can result in a shift of the power to decide what responsible use of AI is - from regulators and editors to technology developers and standardisation bodies - and that in doing so it may contribute to changing the structure and workings of an entire sector.

Social Justice Tropes in Law and Literature: Rights Narratives, Legal Fictions, and (Un)Writable Wrongs?

Social Justice Tropes in Law and Literature: Rights Narratives, Legal Fictions, and (Un)Writable Wrongs?

Sense and Sententiae

This essay aims to rethink a rhetorical microgenre: the “sentence” or sententia, a brief maxim usually stating a moral principle. My aim is to show that rhetorical sentences entail more flexible cognitive and interpretive acts than has usually been recognized. I read the theory and practice of the sentence alongside that of legal maxims, arguing that these small forms can cast a useful light on each other. I focus in particular on literary characters who misuse sentences in ways that prompt inferences about them that go beyond anything they either could or would say themselves. The act of sentence-making entails a judgment that balances the content of the statement against the context in which it is made; that judgment has analogues in law, in both equitable interpretation and the theory of fictions; in literature, that legal hermeneutics is put to work for the construction of character, conscripting what cognitive science calls “mentalizing” for the projection of a kind of inwardness fashioned out of the materials of common opinion. The essay ends by arguing that connecting rhetorical sentences to legal maxims allows us to think seriously about the relationship between legal and literary fiction as it shapes Shakespeare’s Hamlet.

PENYULUHAN HUKUM MENGENAL DAN MEMAHAMI UNDANG-UNDANG NOMOR 1 TAHUN 2023 TENTANG KITAB UNDANG-UNDANG HUKUM PIDANA KEPADA MASYARAKAT KAMPUNG PALUH KECAMATAN MEMPURA KABUPATEN SIAK

The outreach seeks to improve public accessibility by introducing and explaining the newly enacted Criminal Code and how to educate. Socialization is the obligation of all people who are aware of the law, including legal academics. The principle of legal fiction makes socialization urgent. Legally, the obligation to disseminate the new rules is regulated in Law Number 12 of 2011 concerning Formation of Legislation and Presidential Regulation Number 1 of 2007 concerning Ratification, Promulgation and Socialization. The purpose of this research is to find out the principles, types of crimes, qualifications of crimes and violations in the National Criminal Code and the status of specific crimes in the National Criminal Code. The method used in this Community Service activity is in the form of socialization and legal counseling. Good legislation meets the needs of society. New crimes require legal restrictions to suit the ever-changing period. From here, the Criminal Code Law No. 1 of 2023 was passed.

The possibility of AI-induced medical manslaughter: Unexplainable decisions, epistemic vices, and a new dimension of moral luck

The use of artificial intelligence (AI) systems in healthcare provides a compelling case for a re-examination of ‘gross negligence’ as the basis for criminal liability. AI is a smart agency, often using self-learning architectures, with the capacity to make autonomous decisions. Healthcare practitioners (HCPs) will remain responsible for validating AI recommendations but will have to contend with challenges such as automation bias, the unexplainable nature of AI decisions, and an epistemic dilemma when clinicians and systems disagree. AI decisions are the result of long chains of sociotechnical complexity with the capacity for undetectable errors to be baked into systems, which introduces a new dimension of moral luck. The ‘advisory’ nature of AI decisions constructs a legal fiction, which may leave HCPs unjustly exposed to the legal and moral consequences when systems fail. On balance, these novel challenges point towards a legal test of subjective recklessness as the better option: it is practically necessary; falls within the historic range of the offence; and offers clarity, coherence, and a welcome reconnection with ethics.

Russia was ‘Doomed to Expand [its] Aggression’ Against Ukraine: Cultural Property Criminals’ Responses to the Invasion and Occupation of the Donbas Since 20th February 2014

ABSTRACT This study explores how Russia’s invasion and occupation of Ukraine has affected cultural property crime and how cultural property criminals have responded to those practical, social, political and economic changes. To do so, this online ethnography draws on netnographic data from 184 artefact-hunters across Ukraine, Russia, Belarus, Greece, Germany, Belgium, the United Kingdom, the United States and Canada, two artefact-dealers and one violent political operator, whose discussions spanned 19 online communities. It examines the legal fictions and legal nihilism of antiquities looters; the criminal operations of antiquities looters and antiquities traffickers in the occupied territories of Ukraine; the international networks of artefact-hunters that facilitate the trading of equipment and antiquities, plus the movement of the artefact-hunters themselves and the conduct of their criminal operations. Thereby, it documents the pollution of Western markets with tainted cultural goods from the occupied territories of Ukraine and elsewhere in Eastern Europe and the contribution of Western consumers to the conflict economy.

Правовая природа цифровых финансовых активов по законодательству Российской Федерации

Introduction. The paper develops the problems of ontological content of the category “digital financial assets” from the perspective of its legal nature. The purpose of the study is to solve the scientific problem of identifying the legal nature of the phenomenon of “digital financial assets” which allows us to accurately determine the directions for improving the legal regulation of the turnover of digital financial assets. Methods. The methodological framework for the research is materialistic positivism, integrating general scientific, specific scientific and special methods of cognition, among which the dialectical method, ascent from the abstract to the concrete, analysis and synthesis, hermeneutical method, generalization, comparative jurisprudence, etc. are the main ones. Results. Based on the well-established provisions of the civil doctrine and relevant studies of law enforcement practice, the authors substantiate recommendations for resolving a number of conflict-of-laws issues existing in the Russian legislation regarding the interpretation of the essence of the category of “digital financial assets” that slow down and hinder the introduction of this innovative technology of investing in civil turnover. Conclusions. The authors have concluded that the essential content of the category “digital financial assets” is a set of property rights defined in the legislation of the Russian Federation, while the construct of “digital financial assets” is nothing but a new original way (innovative technology) of fixing such rights in information systems. This method should be attributed to a kind of written form of the transaction. The necessity of considering the term “digital financial assets” from the position of a legal fiction mediating the turnover of obligations, claims, rights of participation in the electronic virtual environment of computer networks of information system operators, in which the release, circulation and exchange of digital financial assets, in turn, integrated into the global Internet, is justified.

공무원으로의 벌칙의제 규정이 문서의 ‘공문서성’을 결정할 수 있는지 여부

Recently, the Supreme Court ruled that a document issued by the governor of the Financial Supervisory Service(FSS) is considered a public document according to Articles 29 and 69(1) of the Act on the Establishment of the Financial Services Commission. Article 69 of this Act states that individuals who are not public officials are treated as public officials when it comes to applying penalties under the Criminal Code or other laws. The governor of the FSS is classified as a public official by presidential decree, thus falling under this Legal Fiction of Public Officials. Based on this regulatory framework, the Supreme Court concluded that a document issued by the governor of the FSS should be considered an official document. This interpretation is justified as it is appropriate to interpret the governor of the FSS and other employees as public officials for the purpose of imposing equal responsibilities and providing them with the same protection as public officials. However, this interpretation does not justify treating crimes against non-government employees as crimes against government employees, as it broadens the scope of the current penalty system and serves as a compensatory mechanism for excessive punishment. According to this interpretation, there are always errors of the the actor. In this case, it would be appropriate to penalize the actor for falsifying a document under Article 15(1) of the Criminal Code. Despite the lack of merit in this interpretation, it is difficult to agree that interpreting, when they provide penalties for non-public officials based on the 'type of criminal law fiction,' exceeds the limits of interpretation. The role of the judiciary is to declare what the law is, and if bad legislation exists, it is the responsibility of the legislature to correct it through new legislation. Expanding the scope of punishment for bad legislation through an interpretation that goes beyond the literal meaning of the text.

Правовое регулирование несостоятельности (банкротства) граждан в России и Германии

The article analyses the peculiarities of bankruptcy of citizens. There are general and special insolvency procedures that are introduced over the property of citizens. The conclusion is made about the identity of regulation of consumer and commercial insolvency of citizens, in connection with which the rehabilitation of the entrepreneur’s enterprises is difficult. Particular attention is paid to the insolvency procedure of the mass of succession, as well as the insolvency procedure of the common property of spouses, qualified as special procedures, to which the rules on ordinary procedures are applied in a subsidiary manner. It is concluded that the heir, by virtue of a legal fiction, fulfils the rights and obligations of the debtor in the insolvency procedure in the event of the death of the testator. The emergence of the insolvency procedure of the common property of the spouses is noted, since it is introduced in judicial practice simultaneously regarding several separate property masses. The comparison of legal regulation and the objectives of procedures concerning separate masses of succession in Russia and Germany is made.

ПРОБЛЕМИ ВСТАНОВЛЕННЯ ВИНИ У ВИПАДКУ ВИЗНАННЯ ОСОБИ НЕОСУДНОЇ

In the theory of criminal law, the issue of the relationship between the mental phenomena of sanity and guilt is not studied comprehensively. Most scholars who study sanity issues limit themselves to the assertion that sanity is closely related to guilt. At the same time, the specifical features of this relationship are practically not investigated. The scholars, as a rule, limit themselves to pointing out that sanity is a prerequisite for establishing guilt. According to this approach, it is considered that the solution of the issue of guilt can take place only after the previous positive solution of the issue of the sanity of the person. This position is questioned in the article. After all, from a philological point of view, a phenomenon that precedes another in time and exists separately from it can be called a prerequisite. Consequently, if sanity is considered a prerequisite for guilt, then the conclusion will be obvious that, at least, sanity and guilt as certain mental processes (special mental phenomena) do not coincide in terms of their existence. According to such an approach, sanity shall precede guilt by the time of its existence, it shall be separated from it by a time interval. At the same time, the wrongness of such a conclusion is obvious. After all, sanity and guilt as certain mental phenomena coincide in time – their existence is connected only with the time of the commission of a criminal offense. There can be no question of sanity or guilt of a person outside the time of committing a criminal offense. There is no sanity of a person who has not committed a criminal offense, there is no guilt of a person outside of a specific criminal offense. With all the independence of these phenomena for solving the issue of criminal responsibility of a person, their separation from each other can only be conditional. Just as it is conditional to distinguish such separate elements of corpus delicti as a subject and a subjective side. After all, as already indicated, the subject itself is the bearer of the subjective side, and therefore there can be no question of mechanical separation of the subjective side from the subject. The fact is that both sanity and guilt indicate a person`s mental attitude towards the same act and its consequences, if these consequences have criminal legal significance, and at the same time – the moment of committing a socially dangerous act. It is substantiated that from the point of view of the dialectical relationship between the phenomena of sanity and guilt, sanity can be called «psychic material», different forms of combination of which form different types of guilt, respectively. The relationship between these phenomena can be called the relationship of form and content, where sanity is the content, and guilt is the form. The issue of necessity for separate study and establishment of a mental attitude to a socially dangerous act and its consequences by a person who is recognized to be insane. It should be noted that such a question is not raised in the scientific literature at all, and the problem is not investigated. On the one hand, such presentation of the question is strange, because if an insane person is not the subject of a criminal offense and will not be subject to criminal liability under any conditions for committing a socially dangerous act, then why should we separately investigate mental processes in which no single kind of guilt can be established? Indeed, those pathological mental processes that take place in the psyche of an insane person have nothing to do with those intellectual and volitional features, with the help of which the concepts of certain kinds of guilt are defined. And formally, under no circumstances can the mental attitude of insane person towards the act he/she commits and its consequences be called guilt. At the same time, the position according to which it is impossible to ignore the peculiarities of the mental attitude of an insane person towards the act he/she commits and its consequences is substantiated in the article. After all, otherwise it is impossible to qualify the actions of such a person correctly, as well as to resolve the issue of applying a specific kind of medical coercive measure to him. It is substantiated that in such cases it is necessary to use a legal fiction that shall allow the definition of certain kinds of guilt to be applied to the mental processes that occur during the commission of a socially dangerous act by an insane person. The case law regarding this problem is analyzed.