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How can one develop a progressive agenda of international law, while at the same time not sacrificing the unity and rigour which traditional formalism can appear to claim? In France formalists will not come out of a limited agenda of preservation of the integrity of the French and other classical states, while the progressives, searching for grounds of solidarity in international society, tread uncertainly in the formlessness of material demands made upon the law. Dupuy finds a material basis of unity of the legal order in a triad comprising the general principles of international law, the instrument of the legal fiction and the Kantian theory of the transcendental grounding of the validity of law. Dupuy places the task of developing such a material law in the hands of the international judiciary, despite reservations about their performance. Indeed, it is difficult to imagine any judiciary with the philosophical skill to undertake the tasks he sets them. In fact it is Pierre Legendre, the type of polymath which French culture so readily supports, who demonstrates how problematic is the formalist legal thinking based upon the classical French state. Despite Dupuy's conciliatory spirit towards his formalist compatriots he has opened a Pandora's box for them.

To ensure the respect of legality by commercial corporations, the doctrine of abuse of rights is of practical use. Thus, if the corporate personality is resorted to for improper purposes, courts will not hesitate to set it aside and examine the actual facts behind legal fiction. Cases of criminal activities, public order and equity will justify such an approach. The exercise by company directors of the rights entrusted to them by law is also subject to the doctrine. Directors who use their position for their self-aggrandizement are exposed to judicial reprimand : most of the classic duties imposed on corporate executives fall within the sphere of application of the doctrine. Abuse of rights of a corporate nature thus offers an interesting application of the doctrine in the field of commercial law.

Informed by Jacques Derrida's philosophies of writing and law, this article reads the Mabo decision and the Treaty of Waitangi as defining “charged crossings” of incommensurably different narratives of origin and law. Reading both texts together also performs a trans-Tasman “charged crossing”, comparing and contrasting the legal constitution of the nation in respect of Indigenous and “settler” populations. This “charged crossing” locates both constitutional texts within the frame of a white, British diaspora. The Treaty of Waitangi is examined as the founding document of Aotearoa New Zealand, although it has—significantly—never been ratified. The treaty has been read in a contradictory fashion as guaranteeing both Māori self-determination and Crown sovereignty. In counterpoint, the Mabo decision marks an attempt to re-constitute the national narrative of modern Australia. Re-writing the legal fiction of terra nullius, the Mabo decision attempts to write difference into the history of modern Australia by a...

Keeping track of legislative history-even within one`s own jurisdiction-is not always easy. Some sources-even primary sources-are obscure. One such instance is the legislation of the English Interregnum. The English Common Law conveniently smoothes over this disruption to legal continuity by means of a legal fiction. The restored monarchy takes effect as if the discontinuity had never taken place. Although not king de facto until 29 May 1660, Charles II is king de jure from the execution of Charles I on 30 January 1649. The regnal years flow unabated for parliaments without a king, no less than they did for the 11 years that Charles I ruled personally without a parliament.Historians focus on the facts, while lawyers prescribe a greater forcefulness to law. The Interregnum is a fact that for its own time took precedence over law. Nevertheless, what is one to do with the 10 years of intervening and often anomalously enacted legislation? The proponents of the Cromwellian Protectorate say recognise it, while the Restoration Monarchists say ignore it. There has already been a long drawn-out Civil War, so the compromise is to leave the records hard to find and let the legislation languish, thus providing one of the earliest examples of political correctness.Under various rules of recognition, the intervening legislation of the Long and Little Parliaments, together with the Ordinances of the Protectorate, have legislative status. As seen to satisfy the legislative protocols of their own time, such Acts and Ordinances are arguably either statute law, or else, through subsequent parliamentary confirmation, are given the force of statute law.The fact remains that much of this extraordinary legislation remains hard to find. Rumours abound-especially in such areas of highly disputatious, politically controversial, radically reformative, and otherwise outrightly pathological legislation. Until authenticated, one of the most obvious examples of apparently apocryphal, but obviously pathological legislation is that which outlawed the celebration of Christmas in England. This article tracks this legislation down to an Appendix to the Directory for Public Worship. According to its title, this was `an Ordinance for taking away the Book of Common Prayer and for establishing and putting in execution of the Directory for the Publique Worship of God`. Although without royal assent, this was passed by the Lords and Commons assembled in the Parliament on 4 January 1644/1645. This article is as much concerned with the process of legislative research and legal authentication as it is with the substantive and jurisprudential issues.

Book Reviews Internet Gambling Offshore: Caribbean Struggles over Casino Capitalism. Andrew F. Cooper. Basingstoke, U.K.: Palgrave Macmillan, 2011. xvii + 201 pp. (Cloth US$ 85.00) Chronicling the dispute between Antigua and the United States over off- shore Internet gambling, this book is set against the backdrop of the historic speculative boom in finance that precipitated the global financial crisis. Antigua hosted offshore gambling operations that eventually brought it to the World Trade Organization (WTO) to argue—and win—its case against the United States. Other Caribbean islands meanwhile served booking functions for derivatives, insurance, and complicated subsidiary structures. Yet even in the wake of the financial crisis that began in 2008, official sanc- tions against financial speculation have been significantly weaker than those against offshore gambling. Furthermore, despite Antigua’s win at the WTO, the United States was able to stop offshore Internet gambling. The international effort against Caribbean tax havens has not been as success- ful. This fascinating book helps explain why: U.S. politics are full of strange bedfellows, regulatory carve-outs for specific industries, and unlikely alli- ances that thwart easy International Relations (IR) accounts of power in the global political economy. Since ancient times, gambling has faced moral stigma. One reason is the confounding of media of value with mechanisms of chance. States thus have sought to segregate gambling spatially from other economic activities (think Las Vegas . . . or Wall Street). The Internet complicates this enclav- ing. If you are physically in Ohio but logged into a server in Antigua, what is the connection—metaphysical, moral, legal—between the actions of your fingers, the transmission of data through wireless and fiber optic networks, and the act of gambling? There are obvious parallels to offshore finance: registering a company offshore creates a legal fiction that confounds space. Cooper argues that offshore gambling has been an easier target for interna- tional actors than offshore finance because the former is not as “decoupled” from the “real” economy as the latter: it relies on local ancillary labor, media, and advertising in order to achieve the scale to make it profitable (p. 43). Internet gambling is a mass phenomenon; its market is not the high net worth individuals of offshore finance but the common man, sitting at his computer, bored, looking to play some online poker or off-track betting. © 2013 Bill Maurer DOI: 10.1163/22134360-12340028 This is an open-access article distributed under the terms of the Creative Commons Attribution-NonCommercial 3.0 Unported (CC BY-NC 3.0) License, http://creativecommons.org/licenses/by-nc/3.0/

This article will discuss current issues surrounding the administration of capital punishment in the U.S. with insights from Shirley Jackson’s “The Lottery”. The story itself shows the atavistic nature lurking beneath humankind’s civilized surface and leads the reader to examine such notions as scapegoating, ritual cleansing, gender, class structure, arbitrary condemnation, and sanctioned violence. There may be more truth in Jackson’s short story than the reader cares to confront. This opens the possibility that fiction can give us more insight into value issues than other sources can. Although fiction is made up of imaginary elements, it is true to reality and human experience. The legal historical reality of capital punishment and its subsequent implementation as it has existed and still exists in our culture purports to establish and maintain what amounts to a legal fiction of its own. In this story, Jackson presents us with a glimpse into humankind’s past and brings the reader to question the justific...

The entitlement of all persons capable of validly contracting marriage to have such marriage solemnised in the church or chapel of the parish in which they live was, until recently, widely accepted and often repeated. Argar v Holdsworth is the case most often cited as evidencing the existence of this right. However, this received orthodoxy has recently been challenged from two sources. First, by Professor Norman Doe in The Legal Framework of the Church of England and secondly by the late the Reverend Michael G. Smith, in an article in this Journal. Both Doe and Smith throw doubt upon Argar v Holdsworth as providing any basis for proving the existence of such a right and Doe goes further in suggesting that the right to marry was abolished by the Marriage Act 1936 and has only survived since that date as a legal fiction. I seek to demonstrate that Smith's understanding of Argar v Holdsworth is seriously flawed and also that the criticisms levelled against this case as an authority both by Smith and by Doe cannot be upheld.

Globalization processes imply the self-deconstruction of the hierarchy of legal norms. Thus, legal pluralism is no longer only an issue for legal sociology, but becomes a challenge for legal practice itself. Traditionally, rule making by `private regimes' has been subjugated under the hierarchical frame of the national constitution. When this frame breaks, then the new frame of legal institutions can only be heterarchical. The origin of global non-state law as a sequence of recursive legal operations is an `as if', not only a founding myth as a self-observation of law, rather the legal fiction of concrete past operations. This fiction, however, depends on social conditions outside legal institutions, on a historical configuration in which it is sufficiently plausible to assume that in earlier times, too, legal rules were applied.

Боровая, Е. В. Правовые фикции в теории права / Е. В. Боровая // Вестник Академии МВД Республики Беларусь. - 2014. - № 2. - С. 118 - 121. В процессе регулирования общественных отношений возникает множество нетипичных ситуаций, урегулирование которых возможно только при помощи нестандартных способов, к числу которых можно отнести правовые фикции. Анализируются теоретические подходы к понятию правовой фикции. Рассматриваются ее природа и признаки, а также вопросы разграничения правовых презумпций и правовых фикций в теории права. Показана роль правовых фикций в процессе правового регулирования общественных отношений. = In the process of regulation of public relations there are many unusual situations, the settlement of which is possible only by using non-standard methods, which include the right of new fiction. The article is devoted to the analysis of theoretical approaches to the concept of legal fiction. Discusses its nature and characteristics, issues of division of legal presumptions, legal fictions in the theory of law. The role of legal fictions in the process of legal regulation of social relations.

For contemporaries, the transition from the ninety-year-old Kaiser Wilhelm I to his twenty-nine-year-old grandson Wilhelm II seemed like jumping a generation. Ideologically, however, the Year of the Three Kaisers was more a matter of leaping a chasm of centuries. It is true that the Empress Frederick, as Victoria now asked to be known, with her almost republican convictions, was in many respects far in advance of her time; she could never have gained acceptance for her ideas in the system of ‘personal monarchy’, which, thanks to Bismarck, was once again firmly entrenched in Germany (and Prussia in particular). Yet the conception of the divine monarchical principle that the young Wilhelm had absorbed, not least as a counterweight to his parents’ liberal ideals, belonged to the eighteenth century, to the era before the Enlightenment, the French Revolution and Napoleon. Although Bismarck had prided himself on preserving the Hohenzollern monarchy from the clutches of parliamentarianism and preventing it from degenerating – as in Britain, Italy, Scandinavia, the Netherlands and Belgium – into an ‘automatic signing machine’, he was compelled to realise, soon after the double change of sovereign in 1888, that by keeping alive the ‘monarchical principle’ he had put an axe to the roots not only of his own position of power but also of the entire Reich structure he had built up. By ignoring the constitutional aspirations and the centuries-old experience of Europe, he had opened the door to arbitrary rule, sycophantic favouritism and strutting militarism at the court of the Hohenzollerns. If ‘personal monarchy’ was no more than a legal fiction in Bismarck’s eyes, Wilhelm II took it literally and regarded the monarchical principle of divine right as legitimising his autocracy.

WE have hitherto considered persons in their natural capacities, and have treated of their rights and duties. But, as all personal rights die with the person; and, as the necessary forms of investing a series of individuals, one after another, with the same identical rights, would be very inconvenient, if not impracticable; it has been found necessary, when it is for the advantage of the public to have any particular rights kept on foot and continued, to constitute artificial persons, who may maintain a perpetual succession, and enjoy a kind of legal immortality. In Konigsberg at the end of the eighteenth century, “person” was the basic moral unit anchoring Immanuel Kant’s categorical imperative – the name for those creatures whose “rationality” and insuperable “dignity” “already marks them out as an end in itself.” In classical Greece, “person” referred to the “face,” which in Roman theater became a mask worn by an actor, and later the actor himself. In Philadelphia in 1787, at the US Constitutional Convention, “person” was the unit of measure that determined the apportionment of political representation to the states, based on a formula that counted “the whole Number of free Persons”; “all other persons” to be tallied at the discounted rate of five for three. In 1719, on an island in the Orinoco effluence, “person” referred to Poll, Robinson Crusoe’s domesticated parrot, who “was the only Person permitted to talk” to the shipwrecked sailor. In England, during the era of high imperialism, “person” was the legal fiction that gave life to the business corporation (the colonial charter company) and granted immortality to certain rights that would ordinarily “die with the [natural] person.” In 1947, “person” was the “continental” concept internationalized in the draft of the Universal Declaration of Human Rights (UDHR) that, according to Eleanor Roosevelt, started a “storm” among State Department lawyers who insisted that it was a legal figure alien to US law; the storm abated in embarrassment when it was discovered that there was indeed a precedent for “person” in US law, when Supreme Court Justice Roger Taney opined for the majority in the Dred Scott decision in 1857 that “a slave has no juridical personality” and therefore no right to recognition anywhere as a person before the law.

Legal structures that stipulate when a person no longer has the right to make certain decisions for themselves often assign the concept of mental capacity a central role. In jurisdictions where this is the case, the concept of mental capacity is one of the main tools available to medical and care professionals and courts, to help them navigate the often difficult and contested path between unjustified paternalism and neglect. Understand the concept too broadly, or apply it too stringently, and this will result in inappropriate infringements on personal liberty. However, an overly narrow conception, or undemanding application of the concept in practice, will result in failures to care appropriately for some who need the state to intervene in their private affairs. An assumption often in the background of debates about mental capacity is that infringements by the state on personal freedoms in relation to private decisions are justified only when the individual's ability to decide autonomously is relevantly impaired. However, the relationship between being autonomous and having mental capacity in the legal sense is often unclear in the literature. The nature of this relationship is one of the themes explored throughout the articles in this special issue. In addition to freedom from certain kinds of interference from others, being autonomous is generally thought to require certain psychological capacities, and it is this element that is linked to the concept of mental capacity. Genevra Richardson writes that mental capacity is the ‘legal expression’ of autonomy in this sense (p. 91). One of the difficult questions in this area of law is how to decide which psychological incapacities should be taken into account in assessments of mental capacity. In the context of debates about what grounds properly distinguish non-autonomous from autonomous decisions, or incapacity from capacity, one widely endorsed view holds that the grounds used to draw these lines are appropriate only if they are value neutral. Other factors will be in the mix because not all value-neutral considerations will be appropriate for inclusion as a requirement for autonomy or capacity, but on such views value neutrality is a necessary feature. A political commitment to value neutrality limits − in one way or another − the substantive considerations that can be brought to bear on questions of autonomy or capacity, with the aim of being inclusive when it comes to the different kinds of life people choose to live. The motivating concern is that the requirements necessary for autonomy or capacity should be minimal, particularly in the sense that they leave wide open the issue of what life-shaping commitments those with autonomy or capacity can have. Proponents hold that law and public policy in liberal states should be value neutral. This special issue addresses questions that arise when this principle is applied to law relating to mental capacity, with a focus on decisions about medical treatment. One question concerns how limited the requirements must be for a capacity test to count as value neutral. My contribution to the special issue addresses one dimension of this question, by exploring whether conceiving of mental capacity in diachronic terms − as extended over time − would be consistent with a value-neutral approach. It is concluded that ‘considerations derived from a diachronic perspective are relevant to questions of treatment decision-making liberty – especially in the context of mental disorders – but that they are difficult to reconcile with a value-neutral approach to identifying incapacity’, which I suggest presents us with a moral bind (p. 5). In their article, Tony Hope and colleagues use first person reports from people with anorexia nervosa to tease apart various ways that autonomy can be compromised in this disorder. In doing so, they call into question the sharp distinction drawn between preferences and beliefs, which is used to rule out certain considerations from assessments of mental capacity on the grounds that they concern matters of value. The four problems they identify are: (i) ‘problems with agency’; (ii) ‘affective components, particularly anxiety, can dominate beliefs such that the grounds for making a decision may differ from the reasons given in justification’; (iii) ‘the interactions between the affective components and the objective evidence lead to substantial inner conflicts with resulting lack of stability in preferences and beliefs’; and (iv) ‘this lack of stability leads to concerns around identity and authenticity’ (p. 21). Hope and colleagues argue that only some of these problems should be taken into account in questions regarding involuntary treatment, therefore proposing an asymmetry between mental capacity and the psychological capacities necessary for autonomy. They conclude, however, that ‘there is a significant group of people who could be assessed as competent [on the basis of current tests for capacity] but whose refusal of treatment … may not be autonomous [in ways relevant to capacity]’ (p. 34). Another question concerns whether current legal definitions of incapacity are value neutral. The contribution by Catriona Mackenzie and Wendy Rogers analyses the conception of capacity in the Mental Capacity Act 2005 (MCA) in England and Wales. They argue that while the Act's definition of incapacity in terms of a procedural test seems to understand the concept in primarily cognitive and value-neutral terms, an adequate application of its guiding principles and Code of Practice requires a much richer understanding of capacity and incapacity. In particular, Mackenzie and Rogers argue that the Code's interpretation of the MCA's guiding principles appeals to conditions of authenticity and diachronic coherence, and that establishing these involves engagement in a dialogical process. Their analysis suggests that social dimensions of autonomy play a central role in the MCA's approach to understanding and identifying capacity and incapacity. A number of articles in this special issue address the question of whether value neutrality is something that legislators and courts should aim for. Mackenzie and Rogers argue that rather than raising the bar for capacity too high, the substantive requirements that they focus on could enable vulnerable persons to achieve the greatest degree of autonomy possible for them. In their article, Fabian Freyenhagen and Tom O'Shea ‘highlight significant shortcomings in purportedly normatively neutral accounts of mental capacity, shown by their inability to identify the capacity-subverting, and so autonomy-undermining, effects of some mental disorders’ (p. 54). They call for recognition that mental capacity tests must have substantive elements in order to fulfil their legal role. Given this, they recommend alternative measures to guard against unjustified paternalism: increased transparency, democratic contestability, and historically sensitive caution against involuntary detention and treatment. In her article, Natalie Banner argues that the adoption of procedural tests for incapacity in the pursuit of value neutrality results in a legal fiction because the ‘procedural elements of decision-making [cannot] in principle be considered separately from the substantive contents of beliefs and values that inform the decision outcome’ (p. 71). She prescribes instead that the law should adopt a compromise approach according to which mental capacity is understood in terms of having ‘recognisable reasons’. Banner argues that the proposed approach is not value neutral, because it acknowledges ‘the interplay between procedural and substantive elements of decision-making’ (p. 71), but that it nonetheless avoids unwarranted paternalism. Genevra Richardson's article grapples with the idea that, ‘If persons without disabilities are permitted to refuse life-saving treatment, then persons with disabilities, including mental disabilities, must be equally permitted to do so’ (p. 93). She considers how this principle might be upheld in English law using the concepts of mental capacity, best interests and mental disorder, with a focus on whether a shift to supported decision-making in line with the UN Convention on the Rights of Persons with Disabilities might offer a better solution. Ultimately, she wonders whether in the pursuit of neutrality we might risk ‘losing the hard-won advances achieved under other established international human rights principles’ (p. 103). This special issue came about as the result of a workshop run at the University of Melbourne with the generous support of the University of Melbourne's Social Justice Initiative. Thanks go to all those who attended, and special thanks go to Alicia Coram who was the co-organizer of the event. This work was done with the support of the Wellcome Trust [094910].

Several recent judicial decisions have held that bankruptcy planning discussions by boards of directors do not have to be disclosed to the public trading markets under the obligations of the United States federal securities acts. The discussions, the courts held, are not "material." It is hard to imagine anything more important to investors than bankruptcy planning discussions by boards of directors. At issue is why courts are engaging in a legal fiction to amend a federal rule on disclosure obligations.

According to a first approach, the indentured contract resembled forced labor and slavery, and contracts were expressed as legal fiction. 1 Such an approach deprives the abolition of slavery of any historical significance 2 while neglecting all the efforts indentured immigrants made to fight for their own rights.

The intracorporate conspiracy doctrine immunizes an enterprise and its agents from conspiracy prosecution based on the legal fiction that an enterprise and its agents are a single actor incapable of the meeting of two minds to form a conspiracy. The doctrine, however, misplaces incentives in contravention of agency law, criminal law, tort law, and public policy. As a result of this absence of accountability, harmful behavior is ordered and performed without consequences, and the victims of the behavior suffer without appropriate remedy.The vacuum at the center of American conspiracy law has now warped the doctrines around it. Especially in the wake of the financial crisis, prosecutors and the public are searching for new tools to combat corporate conspiracy. The most obvious and tested tool would be to roll back the intracorporate conspiracy doctrine. In the absence of this solution, frustration with applying the doctrine has led to over-reliance on alternative methods to hold agents of enterprises responsible for their actions. Examples of such alternative doctrines include piercing the corporate veil doctrine, the responsible corporate officer doctrine, and unusual approaches such as denying the retroactive imposition of the corporate veil and adopting reverse piercings of the corporate veil.But these doctrines were developed in and adapted to other circumstances. They do not take into account the coordination of actions within an enterprise and the unique nature of conspiracy that fall — and should fall — into the heart of behavior that would trigger liability if not for the intracorporate conspiracy doctrine. Using alternative doctrines to impose liability on behavior that would otherwise be recognized as an intracorporate conspiracy results in inconsistent decisions and disproportionate awards. In sum, not calling a conspiracy a conspiracy asks the wrong questions and sends the wrong signals throughout the law on corporate and individual responsibility.

Death Penalty is not really an issue in Pakistan. Mostly because it’s an ideological state, Constitutionally having a religion which clearly provides for death penalty. In addition to this ideological check, there is also a Constitutional check. Constitution of Pakistan states that all laws need to confirm to Islam and Supreme Court of Pakistan says that among others, this part of Constitution constitutes the ‘Basic Structure’ of the Constitution which cannot be amended, even by adopting the procedure that Constitution itself provides for its amendment!After making a jurisprudential argument in favour of abolition of death penalty, this paper explores the ideological and Constitutional checks in Pakistan legal system locking the death penalty in the system. In the end, an argument is made that in addition to taking the political course, a legal path can be taken to abolish the death penalty in Pakistan, without violating the Constitutional check; legal fiction.

This chapter examines the idea of corporate personhood and the rights that flow from it. Gans argues that the Constitution never mentions corporations and doesn’t give corporations the same rights as individuals. He asserts that the Founders understood that there were fundamental differences between individuals and corporations, which received special privileges that individuals didn’t. While corporations have some rights, he argues that the Constitution cannot be applied wholesale to them. Shapiro agrees that corporations—or other groups of people, regardless of legal form—don’t have the same rights as humans. He gives several examples of corporate rights, however, and concludes that they’re a subset of the rights of natural persons. The disagreement here is over the scope of those rights and how to apply them.

THE DOCTRINE OF WAIVER OF TORT IN THE LIGHT OF ENGLISH COMMON LAW TRANSFORMATIONSummary The waiver of tort was a legal fiction that enabled a plaintiff to sue in quasi-contract in lieu of tort. This was a common law doctrine that resulted from the domination of procedural rules over substantive ones. Each of medieval writs initiated peculiar proceedings that had been drafted specially for separate causes of action. As this proceedings differentiated between themselves, plaintiffs attempted to use those writs that restricted the scope of applicable defenses. Hence one of the most popular actions was a quasi-contractual formula named “indebitatus assumpsit for money had and received”. As compared with the tort actions this formula enabled plaintiff to avoid consequences of “actio personalis moritur cum persona” rule and shortened periods of limitation. That is the reason why plaintiffs attempted to apply the quasi-contractual remedy against tortfeasors. The waiver of tort doctrine took its name from the fiction that an injured party waived his rights based on tort and approved all acts performed by a tortfeasor. In consequence the former party was authorized to sue the latter in quasi-contract. As the forms of action had been abolished in late 19th century, lawyers began to perceive “waiver of tort” as a misnomer and started to focus rather on the fact that from one cause of action separate remedies might arise. The change of this attitude was possible due to transformations that took place in common law. The procedural rules ceased to dominate over the substantive ones.

Legal compilations of the twelfth century include the idea that there were four roads in England, on which travellers enjoyed unique protection. This idea has been regarded as a statement of the origin of the King's Highway from which wider definitions grew. In fact, the Four Highways did not exist as a category in Anglo-Saxon law, but were a twelfth-century fabrication that came to be quite antithetical to the genuine law of the highway. The idea was invented by Henry of Huntingdon around 1130. It was subsequently embroidered by Geoffrey of Monmouth, who concocted the stories of two kings, Dunvallo Molmutinus and Belinus, who gave protection to travellers and built roads to guarantee this protection. These ideas were then adapted in legal and literary texts of the twelfth century. Verbal and conceptual overlaps suggest the transfer of ideas back and forth between the legal and literary traditions. The adaptations do, however, reflect real efforts to limit the definition of the highway and the jurisdictio...

Modern law and economics received much of its impetus from Ronald Coase's analysis in ‘The Problem of Social Cost,’ and a goodly amount of that comes from the Coase theorem, which states that, absent transaction costs, externalities will be efficiently resolved through bargaining. The fact that the analysis that came to be codified in the Coase theorem was (intentionally) an exercise in pure fiction on Coase's part did not deter the erection of a substantial edifice of positive and normative analysis on this foundation, nor, for that matter, has subsequent elaboration of Coase's intent done anything to abate the interest in the theorem and its implications.

The law has long been a popular subject for fiction. As women enter the legal profession in increasing numbers, the subgenre of women's legal fiction has come of age. This bibliography offers brief annotations of 112 novels published between 1980 and 1996 spotlighting women in the legal profession: the law student, the paralegal, the attorney, and the judge. The featured novels are organized geographically, including fictional women in the legal field from all over the United States.

The focus of this paper is not on the person, but on theworkof Carl Schmitt, in particular the significance of Schmitt's concept of the political for an understanding of his legal and constitutional theory. Let me start with a short personal memory. When I was a third year law student, I read Carl Schmitt'sConstitutional Theory. I came across the formulations that the state is the political unity of a people and that the rule of law component in a constitution is an unpolitical component. I was puzzled by these two remarks. I had learned from Georg Jellinek that the state, from a sociological perspective, is a purposeful corporative unit and, from a legal perspective, represents a territorially based corporation. I had also gathered some knowledge about “organic” state theories, especially that of Otto von Gierke who considers the state an organism and a real corporative personality rather than a mere legal fiction. On the basis of these theories, I felt unable to understand Schmitt's point that the state is the political unity of a people, because in those theories the political aspect is largely missing. It was only later that, by reading and studying Carl Schmitt's essayThe Concept of the Political, I gradually learned to make sense of the above remarks. Thus I have discovered that that essay, and the understanding of the political elaborated in it, contains the key to understanding Carl Schmitt's constitutional theory in general. I would now like to explain this.

This chapter addresses the problems underlying Citizens United v. FEC (2010), a case decided by the United States Supreme Court in 2010. Part I discusses political speech within a context defined by three factors: (1) electorates that are so large that speech must address them largely by using “mass media”; (2) a postfactual culture where analysis and debate often rely on distortions, misstatements, or fabrications of factual matters; and (3) a market society where effective political speech depends largely upon having the financial ability to use mass media. After discussing the legal fiction of corporate personhood, Part II argues first, that Citizens United has a reasoned basis and second, that critics allow their concern about the role of wealth in politics to divert them from addressing both the basis of the decision and other avenues of reform. Part III discusses measures to limit the role of money in politics and the problem that, in a market society, speech is always, to some extent, for sale.

The Supreme Court’s 2010 decision in Citizens United v. Federal Election Commission is often criticized for having declared that corporations are persons with the same constitutional rights as human beings. Using standard theories of the nature of the corporation as a guide, this paper traces the concept of corporate personhood from its mythical birth in the 1886 Santa Clara case. This historical perspective reveals that the Court has never settled on one theory of the nature of the corporation. Even after Citizens United the concept of corporate person remains little more than a metaphor or legal fiction. The real significance of Citizens United is that it ignored the traditional limitation on corporate constitutional rights. The idea of corporate constitutional rights springs from early Contract Clause doctrine holding that a state could not deprive a corporation of the essential object of its grant or confiscate corporate property. By ruling that the rights of corporations are not limited to issues that materially affect its business or property, the majority in Citizens United casually dismissed this principle of confiscation. It thus rejected both the most significant limitation on corporate constitutional rights and underlying rationale for giving corporations constitutional rights in the first place.

A patent right is an exclusionary right. With it, the patent holder can exclude third parties from making, using, selling, etc. products or processes protected by his patent. In the past, this right has also been referred to as a 'monopoly right' and this has lead to considerable confusion about the scope of patent rights and the role of the patent system in a modern economy. This paper seeks to provide some clarity on this issue and highlight the distinction between the exclusionary right granted by patent law and the notion of monopoly in economic regulation.

Do citizens have any Fourth Amendment protection from sense-enhancing surveillance technologies in public? This article engages a timely question as new surveillance technologies have redefined expectations of privacy in public spaces. This article proposes a new theory of Fourth Amendment security based on the ancient theory of curtilage protection for private property. Curtilage has long been understood as a legal fiction that expands the protection of the home beyond the formal structures of the house. Curtilage recognizes a buffer zone beyond the four corners of the home that deserves protection, even in public, even if accessible to public view. Based on custom and law protecting against both nosy neighbors and the government, curtilage was defined by the actions the property owner took to signal a protected space. In simple terms, by building a wall around one’s house, the property owner marked out an area of private control. So, too, the theory of personal curtilage turns on persons being able to control the protected areas of their lives in public by similarly signifying that an area is meant to be secure from others. This article develops a theory of personal curtilage built on four overlapping foundational principles. First, persons can build a constitutional protected space secure from governmental surveillance in public. Second, to claim this space as secure from governmental surveillance, the person must affirmatively mark that space in some symbolic manner. Third, these spaces must be related to areas of personal autonomy or intimate connection, be it personal, familial, or associational. Fourth, these contested spaces – like traditional curtilage – will be evaluated by objectively balancing these factors to determine if a Fourth Amendment search has occurred. Adapting the framework of traditional trespass, an intrusion by sense-enhancing technologies into this protected personal curtilage would be a search for Fourth Amendment purposes.The article concludes that the theory of personal curtilage improves and clarifies the existing Fourth Amendment doctrine and offers a new framework for future cases. It also addresses the need for a new vision of trespass to address omnipresent sense-enhancing surveillance technologies.

This chapter argues that the classical legal notion that international legal personality is exclusive to States and some international organizations is nothing more than a fiction based on outdated theories about legal personality. It aims to bridge the gap between the legal fiction of international law being an exclusive State club and the de facto power of transnational corporations (TNCs) over the global environment by proposing an evolution in the legal theory of personality. The chapter examines first how TNCs have directly and indirectly influenced international environmental policymaking. It then argues for a legal presumption that TNCs must have international personality in the arena of international environmental law. The following sections of the chapter proposes one pragmatic model for engaging TNCs as international subjects responsible for good faith participation in international environmental governance and law-making that protects and sustains resources for this generation and future generations. Keywords:de facto power; international environmental law; international legal personality; transnational corporations (TNCs)

Thesis on the topic: The procedures of public administration in the area of state aid Author: Martina Koutná The main aim of this thesis on the topic "The procedures of public administration in the area of state aid" is to analyze the issue of investment incentives in the Czech Republic from the perspective of the state aid rules and the reasons for this regulation. The main attention is paid to the system of investment incentives based on Act on Investment Incentives in the context of the general problems of state aid. The work focuses on the application of the Administrative Code on the investment incentives and analyzes the process of public administration in providing subsidies on the basis of budget rules. The aim is to analyze the diametrically different approaches and to point out key differences. In particular, that the Administrative Code is applicable to the process of providing investment incentives and the process is subject to judicial review. While in the case of subsidies, on the basis of budget rules, neither administrative procedure nor judicial review is possible. In connection with the provision of subsidies " anti-corruption amendment" to the budget rules is critically assessed and the author refers attention to its unconstitutionality. Among other things, the thesis points out...

The doctrine of informed consent functions reasonably within its area of applicability of competent adults, though even in that setting it suffers from some difficulties both theoretical and practical. When applied by proxy to incompetent persons such as mentally incapacitated adults and newborn babies, the doctrine becomes a legal fiction, i.e., a legal construct created to force-fit a set of facts into an established legal analysis that is not literally applicable. The conceptual, ethical and practical difficulties are maximized with proxy permission to authorize circumcision of neonates. “Proxy consent” for neonatal circumcision is a legal fiction that cloaks a usurpation of agency allowing ostensibly hallowed principles of autonomy and self-determination to be violated with impunity. Such legal fictions conceal our violations from ourselves and others under the pretenses of legal authorization and compliance with ethics and human rights, and—in the circumcision context—the further pretense of medical authorization, masking our failure to properly safeguard human dignity and autonomy.

Although there is no term or concept in Islamic law that signifies a communal legal entity, traditional Muslim societies contained several communal entities, such as the Ṭāʾifa or “community”. Such an entity manifests itself in several documents from the sijill of sixteenth-century Jerusalem that deal with relations between the Jewish community and Muslim authorities. For example, when the Jews of Jerusalem attempted to lease a plot for their cemetery, they could not do so as a community, for no such legal entity existed. For this reason, they designated three individuals in whose name the lease was issued, perhaps in an effort to bridge the gap between theory and practice. This was not a mere legal fiction (ḥīla), for when Muslim waqf authorities subsequently determined that one of the three lessees had died, it declared one-third of the lease to be null and void. The Jewish community never challenged this ruling. As demonstrated in this article, the Jewish community applied the same stratagem to other financial matters.

Cet article, qui s’inscrit dans le courant law and economics, est une contribution tant à l’économie de la firme qu’à l’histoire de la pensée juridique. Il propose, à partir d’une étude approfondie d’une littérature ancienne et originale, une analyse critique du paradigme du nœud de contrats qui réduit la firme à une fiction légale. A contrario, il est montré l’intérêt de reconsidérer une approche ontologique singulière de la firme en tant qu’entité (collective) réelle qui intègre sa dimension sociale irréductible. Cette théorie originale de la firme nous semble en mesure d’apporter de nouveaux fondements analytiques pour comprendre la complexité de cette institution primaire du capitalisme. This article, which is based on a law and economics perspective, is a contribution to both the economics of the firm and the history of legal thought. The article aims to benefit from a detailed survey of an old and original literature in order to propose a critical analysis of the nexus-of-contracts paradigm that reduces the firm to a legal fiction. Conversely, it is shown that it is fruitful to reconsider the singular ontological approach to the firm as a real (collective) entity, which takes into account its irreducible social dimension. For us, this innovating view of the firm is able to bring new analytical foundations to understand the complexity of this primary institution of capitalism. Este articulo que se inscribe en la corriente law and economics es una contribución tanto a la economía de la firma como a la historia del pensamiento jurídico. El mismo propone, a partir de un estudio profundo de la literatura antigua y original, un análisis critico del paradigma del nudo de contratos que reduce la firma a una ficción legal. Por el contrario, se muestra el interés de reconsiderar un enfoque ontológico singular de la firma en tanto que entidad (colectiva) real que integra su dimensión social irreductible. Esta teoría original de la firma no parece estar a la altura de aportar nuevos fundamentos analíticos para comprender la complejidad de esta institución primaria del capitalismo.

International audience; The article is devoted to examination of analogy of law and analogy of legislation as real fiction in legal mechanism of right-deprivation and legal regulation of property relations and as the mean of its correction.

The U.S. Supreme Court holds steadfast to the theory of a color-blind America. While this may be a worthy aspiration, those of us involved in black-white interracial relationships know that color-blindness is but a legal fiction. As a black woman in a long-term relationship with a white man in America, I will analyze some of the sociopolitically and socioculturally imposed challenges faced by black-white interracial couples. While such disparate scrutiny oscillates between curiosity, fascination, and hostility, there remains a racial fixation that reveals the Supreme Court’s theory of color-blindness as wishful thinking. In this respect, interracial couples might be the proverbial canaries in the coal mine, revealing suffocating racial dynamics at work just beneath the surface. Critical Race Theory’s narrative style exposes the ways in which the personal is political. Put another way, the intimate is deeply sociopolitically enmeshed. By exploring the ways in which my interracial relationship has been scrutinized and hypersexualized, I posit that much of the way we comprehend race in America is sexualized, and that much of the way we understand sex is racialized. As such, racism is also often sexualized. This chapter connects such racialized sexualization to its historical roots. Thus, while we have progressed a great deal since the landmark decision of the Supreme Court in Loving v. Virginia , there exists a troubling racial fixation in America that is revealed when one gazes through the lens of encounters faced by black-white interracial couples.

Probiotics are microbes that are claimed to promote health and well-being when added to foods. However, the European Food Safety Authority (EFSA) has so far advised negatively about health claims for probiotics. Companies and scientists have protested against these rejections, sometimes in vigorous language. I argue that EFSA could not have acted differently, given EU regulations and the lack of convincing evidence for some of the claimed effects of probiotics on human health and well-being. One EU regulation that makes it hard to demonstrate the benefits of probiotics is the prohibition of medical claims, i.e. claims that a food prevents or cures a disease. If this prohibition did not exist, manufacturers of nutritional treatments might circumvent the costly procedures required for drugs, and market their products to ill people without thorough proof that they are effective and safe. However, the prohibition is also a legal fiction, because promotion of health and prevention of disease is largely the same thing. EFSA has recently indicated that it will allow health claims based on the ability of probiotics to reduce infections. To a certain extent, this abolishes the distinction between health claims and medical claims. It remains to be seen if probiotics producers can convince EFSA that their products prevent or cure infections and other diseases in humans. © 2012 Wageningen Academic Publishers.

This first part of this paper consists of a personal review of the scientific nature of Criminal Law (which is rejected), of the constant influence of Politics on Law (whichis regrettable) and the deductive or inductive legal method (which is demythologised,because much of it constitutes wishful thinking). As a result of these assertions, it isargued that the system is made for man and not man for the system; what matters is that a legal solution for a social conflict be reasonable, rather than systematic. Applying these conclusions to the traditional problem of the criminal liability of legalentities, it is understood that the reply should not be abstract, but concrete, and should it prove to be advantageous for the ends pursued by Criminal Law, it isadvisable to legally declare this liability, despite its being fictitious, because the Lawis not a product for philosophy but for real life. The author believes that currently this advantage is provided by the belief that this statement reinforces general prevention asthe objective of Criminal Law. In the second part of this paper, the principles that should orient the introduction of this question in the Spanish legal code are indicated, differentiating the legal liability of a physical person who commits a crimeand the liability of a legal entity, which has created the necessary setting for it. Finally, constructive criticism is made of the proposed organic law of 15 January 2007, which reforms that Spanish legal code of 1995, introducing the criminal liability of legalentities. La primera parte del trabajo constituye una revisión personal del carácter científico del Derecho penal (que se rechaza), de la influencia constante de la Política sobre el Derecho (que se lamenta) y del método jurídico deductivo o inductivo (que se desmitifica, porque en él hay mucho de voluntarismo). Como consecuencia de este planteamiento se sostiene que el sistema es para el hombre y no el hombre parael sistema, y que lo que importa de una solución jurídica para un conflicto social esque sea razonable y no sistemática. Aplicando las conclusiones obtenidas al tradicional problema de la responsabilidad penal de las personas jurídicas, se entiende que la respuesta no ha de proceder en abstracto sino en concreto, y, si resulta alguna ventajapara los fines del Derecho penal, es oportuno declarar legalmente esa responsabilidad,aunque se trate de una ficción, porque el Derecho no es un producto filosófico sino para la vida. El autor piensa que en la actualidad la citada ventaja la proporciona la creencia de que con esa declaración se fortifica la prevención general como fin del Derecho penal. En la segunda parte del trabajo, se apuntan los principios que deberían orientar la introducción de esta cuestión en el Código penal español, distinguiendo entre la responsabilidad personal del individuo que comete materialmente el delito y la responsabilidad de la persona colectiva que ha proporcionado el marco adecuado para ello. Finalmente, se critica constructivamente el proyecto de ley orgánica de 15 de enero de 2007, por el que se reforma el Código penal español de 1995 para introducir la responsabilidad penal de las personas jurídicas.

Many comparatists are using the concepts of ’legal culture’ and ’legal tradition’ as synonyms. However, Patrick Glenn has claimed that ‘legal culture’ should be used as an epistemological tool in comparative study of law. According to him, the epistemological main function of ‘legal culture’ has been to exist as a means of differentiation and to provide a conceptual tool that can be used to describe differences between things that are labelled as ‘culture’. Glenn has claimed that when we speak of ‘culture’ we speak of a country as a homogenous legal fiction. According to this view the concept of ‘legal culture’ is a conflictual concept whereas the concept of ‘legal tradition’ is epistemologically more tolerant. Glenn’s criticism of ‘legal culture’ is analysed critically in this article. The author claims that there is, in fact, no important difference between these concepts in epistemological sense. This article doubts that mere conceptual usage of ‘legal culture’ would contain automatically an epistemology of conflict.

This thesis deals with one of the modern topics of international law - diplomatic protection. It provides for its comprehensive assessment from a wider and deeper perspective on the background of the codification process, which culminated in 2006, when the International Law Commission (ILC) adopted 19 Draft Articles on Diplomatic Protection. In the current state of international law, diplomatic protection is based on customary international law. It is an instrument to protect nationals (be it a natural or legal person) by their state of nationality, if they injured by another (host) state in violation of international law. Under the current definition, diplomatic protection means the invocation (through peaceful means) by a state of the responsibility of another state for an injury caused to a national by an internationally wrongful act of that another state. The aim of diplomatic protection is to implement this responsibility. The application and exercise of diplomatic protection is considered to be a sovereign, discretional right of the state, although the thesis points out the some recent developments in international law towards the need to recognize the rights and interests of the individual, as well as the constitutional practice of some states guaranteeing its citizens a (domestic) right to...

In Western jurisprudence, the concept of capacity is a legal presumption. It rests upon the assumption that each of us, at adulthood, is best able to decide what is in our best interest, and that we ought to be left alone to pursue our own choices (Sabatino and Basinger 2000). Incapacity is a term that defines when a state may take actions to shatter this presumption and limit the individual’s right to make decisions about his or her person or property based on disability. Guardianship or conservatorship is the process in which this determination is normally made. Conceptually, incapacity may be seen as a legal fiction. This means that it is a construct treated as a fact, whether or not it is really so, because it is recognized as having utility. Here, we are referring to legal incapacity, and not clinical or de facto incapacity.

In Resurfice Corp. v. Hanke, [2007] 1 S.C.R. 333, 2007 SCC 7, the Supreme Court of Canada created a new causation doctrine – a new test for causation – in Canadian negligence law. The new test is available to plaintiffs only in exceptional cases. Negligence and the possibility of specific factual causation may be sufficient to satisfy the causation requirements of a cause of action in negligence. Proof of specific factual causation on the balance of probability is not required. The justification for the doctrine is fairness and justice. The doctrine does not produce a decision that the negligence did or did not cause the injury on the balance of probability. Where the requirements of the Resurfice doctrine are satisfied, the causation requirements of the cause of action are deemed to be satisfied despite the finding that factual causation was not established on the balance of probability. The Supreme Court called the doctrine a 'material contribution' test.The central premise of this article is that a court’s use of the material contribution to risk doctrine, as declared in Resurfice, as the basis for finding the plaintiff has established causation did not produce a finding of factual causation on the balance of probability. Rather, it produced a conclusion that the plaintiff had satisfied the causation requirements of the cause of action even though the plaintiff had failed to establish factual causation on the balance of probability. That premise may no longer be correct. The Supreme Court released its decision in Clements v. Clements, 2012 SCC 32, on June 29, 2012, a few days after the article was substantially complete. The Supreme Court restated aspects of the material contribution doctrine set out in Resurfice. Statements in Clements render aspects of my analysis of the doctrine, as set out in Resurfice, necessarily wrong. Other statements, and implications of those statements, may make the central premise of this article wrong. The analysis in Parts 1-4 of the article has not been revised to take Clements into account. I added the postscript where I discuss the Supreme Court of Canada reasons in Clements. As such, the law discussed in this article, other than in the postscript, is the Canadian law as I believe it was immediately before the release of Clements. It may be that, as a result of Clements, it does not and will not matter to the development of material contribution jurisprudence, in Canada, whether the finding of causation made under that doctrine is a legal fiction that factual causation has been established on the balance of probability, or a policy decision that causation has been established notwithstanding that factual causation has not been established on the balance of probability. However, it matters to the analysis in Parts 1-4. In the result, while I intended and hoped that the analysis of the material contribution doctrine, in those parts, would be useful for judges and practicing lawyers, it may be that significant portions of that discussion are now of academic, historical, interest only. However, Parts 1-4 also contain some discussion of the but-for doctrine. It is my opinion that the merits of that discussion survive Clements unscathed.

International audience; This conceptual paper starts with a question regarding the nature of the firm: is the firm a nexus of contracts or a real entity? To answer this question, the article departs from a critique of firm contract theory that usually focuses on moral personification to propose some theoretical foundations of the firm as a real entity. This provides crucial insights for the analysis of modern complex organizations. Then, this paper applies the real entity paradigm to the case of the network firm: is the network firm merely a collection of distinct legal entities or a single real entity? The integrating and unifying role of intra-network power relationships is emphasized, and some legal and economic aspects of the network firm are discussed to clarify the argument that the network firm is a singular real entity composed from distinct legal entities. Considering the network firm as a single real entity has strong policy implications in terms of employment protection rights and politico-legal responsibilities.

In Citizens United vs. FEC, the Supreme Court struck down a Federal statute banning direct corporate expenditures on political campaigns. The decision has been widely criticized and praised as a matter of First Amendment law. But it is also interesting as another step in the evolution of our legal views of the corporation. This article argues that by viewing Citizens United through the prism of theories about the corporate form, it is possible to see that the majority and the dissent departed from previous Supreme Court jurisprudence on the First Amendment rights of corporations. It is also possible to then predict what arguments can be expected next.

Avi-Yonah's article is to be commended for bringing corporate theoretical sophistication to bear on the opinions of a Court that is largely unfamiliar with the real world of corporate and business practice. But the essential question with which I leave Avi-Yonahs work is: Why does it matter? The principal flaw in Avi-Yonahs argument is that it consistently operates at the level of high theory while failing to contextualize the theoretical debate in a way that might elucidate for us theorys importance. While he takes us through all of the standard cases, he disregards the purposes for which theory was used in each. For corporate theory in the context of constitutional law is about the power relationship between the corporation and the state, while corporate theory in the context of corporate law is about the relationship between directors and shareholders, and thus the distribution of power within the corporation. One set of theories is largely independent of the other, as clear as the contrast between the Progressive Era theoretical literature Avi-Yonah cites, and Berle and Meanss "The Modern Corporation and Private Property". What difference does it make? Constitutional law is about power within politics, writ both large and small. Corporate law is about power within business. The former goes to the question of the corporations power vis-a-vis the state and society. The latter goes to questions of the efficiency of the enterprise and the legitimacy of its organization.