Christoph Kletzer - Kelsen on Vaihinger

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<p>King’s Research Portal</p><p>DOI:</p><p>10.1007/978-3-319-09232-4_2</p><p>Document Version</p><p>Peer reviewed version</p><p>Link to publication record in King's Research Portal</p><p>Citation for published version (APA):</p><p>Kletzer, C. (2015). Kelsen on Vaihinger. In Legal Fictions in Theory and Practice (Vol. 110, pp. 23-29). (Law and</p><p>Philosophy Library; Vol. 110). Springer. https://doi.org/10.1007/978-3-319-09232-4_2</p><p>Citing this paper</p><p>Please note that where the full-text provided on King's Research Portal is the Author Accepted Manuscript or Post-Print version this may</p><p>differ from the final Published version. If citing, it is advised that you check and use the publisher's definitive version for pagination,</p><p>volume/issue, and date of publication details. And where the final published version is provided on the Research Portal, if citing you are</p><p>again advised to check the publisher's website for any subsequent corrections.</p><p>General rights</p><p>Copyright and moral rights for the publications made accessible in the Research Portal are retained by the authors and/or other copyright</p><p>owners and it is a condition of accessing publications that users recognize and abide by the legal requirements associated with these rights.</p><p>•Users may download and print one copy of any publication from the Research Portal for the purpose of private study or research.</p><p>•You may not further distribute the material or use it for any profit-making activity or commercial gain</p><p>•You may freely distribute the URL identifying the publication in the Research Portal</p><p>Take down policy</p><p>If you believe that this document breaches copyright please contact librarypure@kcl.ac.uk providing details, and we will remove access to</p><p>the work immediately and investigate your claim.</p><p>Download date: 23. ago.. 2024</p><p>https://doi.org/10.1007/978-3-319-09232-4_2</p><p>https://kclpure.kcl.ac.uk/portal/en/publications/2394c0b5-551f-467e-86a9-b76944554e40</p><p>https://doi.org/10.1007/978-3-319-09232-4_2</p><p>Electronic copy available at: http://ssrn.com/</p><p>abstract=2599954</p><p>Chapter 2</p><p>Kelsen on Vaihinger</p><p>Christoph Kletzer</p><p>C. Kletzer (</p><p>)</p><p>The Dickson Poon School of Law, King’s College London, Strand, London WC2R2LS, UK</p><p>e-mail: christoph.kletzer@kcl.ac.uk</p><p>Abstract This is a comment by the translator on the translation of Hans Kelsen’s</p><p>‘On the Theory of Juridic Fictions. With special consideration of Vaihinger’s Phi-</p><p>losophy of the As-If’ (Chap. 1).</p><p>Vaihinger’s philosophy of the As-If is a work which is almost as famous as it is un-</p><p>read and the strong intuitive appeal of its programme—so very neatly expressed in</p><p>its title—has not been appealing enough to generate a lasting debate or something</p><p>of a heritage in the English-speaking world.1 However, Kelsen’s early engagement</p><p>with this work is still relevant and should attract our attention. This is so not only</p><p>because of Kelsen’s comments on the concept of juridic fiction, but also because</p><p>in this work Kelsen sketches out, and be it en passant, early ideas on freedom, nor-</p><p>mativity and the relation of law and morality. In this early discussion of his ideas</p><p>we can see themes evolve which are central to the Pure Theory albeit not yet over-</p><p>burdened by the discourse of the basic norm.2</p><p>Apart from a respectful but largely critical analysis of Vaihinger’s use of juridic</p><p>fictions, to which I will turn in a moment, Kelsen also makes two important points</p><p>not trivially related to the question of juridic fictions. Kelsen claims, firstly, that</p><p>the concept of the freedom of the will with all its metaphysical confusions is an</p><p>unnecessary consequence of an insufficient separation of the realm of the is and the</p><p>1 Being a commentary on Kelsen’s essay, this is not the place to discuss Vaihinger’s work in any</p><p>detail. It has to suffice to say that it is a surprisingly erudite work, rich in detail which mainly suf-</p><p>fers from a repetitive urge to subsume everything under the construct of the fiction and to claim</p><p>that all problems of philosophy can be solved thereby. Vaihinger is convinced the fiction is the key</p><p>to a mediation between the actual and the ideal, a mediation which he calls “idealistic positivism”</p><p>and which turns out to be a thoroughly un-dialectical assemblage of disparate and incompatible</p><p>elements. He is drawn to the fiction because in it he believes to have found a construct that al-</p><p>lows us to continue to talk about the phantasies and dreamt up concepts we hold so dearly, yet</p><p>still remain devoted to cognition of the actual world. It is thus a theory which promises to allow</p><p>us to eat the cake, yet at the same time have it. Philosophically Vaihinger’s work is a combination</p><p>of voluntarism, naturalism, Nietzscheanism, pragmatism and a reading of Kant along the lines of</p><p>pragmatism.</p><p>2 On the misunderstood role of the Basic Norm, see Jestaedt 2013.</p><p>23© Springer International Publishing Switzerland 2015</p><p>M. Del Mar, W. Twining (eds.), Legal Fictions in Theory and Practice,</p><p>Law and Philosophy Library 110, DOI 10.1007/978-3-319-09232-4_2</p><p>christoph.kletzer@kcl.ac.uk</p><p>Electronic copy available at: http://ssrn.com/</p><p>abstract=2599954</p><p>24 C. Kletzer</p><p>realm of the ought and that as soon as one accepts this separation, the concept of</p><p>freedom becomes superfluous; he claims, secondly, that the law can only ever be</p><p>an object of cognition if it is understood as a sovereign normative order not derived</p><p>from morality or religion and that, accordingly, law and morality cannot stand in</p><p>any relation to each other, because they are not realms of actuality.</p><p>But let us start with the fictions themselves. According to Kelsen, Vaihinger is</p><p>right in his general characterization of them. They are very peculiar intellectual</p><p>constructs: they help us gain a better understanding of the world, but they do that by</p><p>making claims about the world which are in clear opposition to facts or are plainly</p><p>self-contradictory. For instance, in mathematics we make regular and expedient use</p><p>of the concept of the “infinitely small”, despite it being clear that there is nothing</p><p>in the world which is actually infinitely small and that the concept of something</p><p>being infinitely small yet not being nothing, is self-contradictory; the same holds</p><p>true for imaginary numbers (the square root of negatives); ditto for concepts like</p><p>“matter”, “force”, and so on.3 In a fiction we treat X as if it were a Y in order to</p><p>better understand the world, even though we very well know that X actually is not</p><p>Y or cannot be Y.</p><p>From this Vaihinger develops the four main characteristics of fictions: (1) they</p><p>include a contradiction with reality or a self-contradiction, (2) the fiction has to be</p><p>fundamentally provisional, i.e. it has to disappear later on or be logically elimi-</p><p>nated, (3) the awareness of the fictivity has to be expressly stated, and (4) the fiction</p><p>has to be expedient.4</p><p>So far so good. However, Vaihinger states that it was only in mathematics and</p><p>in the law that fictions have so far been systematically discussed,5 and goes on to</p><p>elaborate his understanding of the use of fictions in the law. And it is precisely</p><p>this to which Kelsen takes exception. He claims that on close inspection nearly all</p><p>the examples Vaihinger uses to illustrate juridic fictions cannot count as fictions in</p><p>Vaihinger’s own sense. After all, Vaihinger quite naively talks about the “fictions</p><p>of the law” and does not distinguish between the various possible authors of fic-</p><p>tions, i.e. between who exactly makes the fictitious statement. According to Kelsen,</p><p>Vaihinger refers to at least three possible authors: the legislature, the judiciary (and</p><p>other agents applying the law) and legal science. Now, of these three, only the latter</p><p>can be said to satisfy all four of Vaihinger’s own characteristics of fictions.</p><p>(A) Fictions of the legislator, e.g. cases where the legislator decrees “that goods</p><p>not returned to the sender within the proper time are regarded as if the recipient</p><p>had definitely authorised and accepted them”6 cannot count as proper fictions as by</p><p>3 Vaihinger actually ends up arguing</p><p>that nearly every concept is a fiction. In the 800 pages of his</p><p>work there seems to be no linguistic construct which he thinks would not benefit from being un-</p><p>derstood as a fiction. After all he says that every abstract and every general term is a fiction. Now,</p><p>since every term, even an indexical, has an element of generality, according to Vaihinger every</p><p>term must have a fictional element. This, however, is clearly proving too much as this generality</p><p>robs fictions of any explanatory power.</p><p>4 Vaihinger (1924, p. 97).</p><p>5 Vaihinger (1924, p. 33).</p><p>6 Vaihinger (1924, p. 35).</p><p>christoph.kletzer@kcl.ac.uk</p><p>252 Kelsen on Vaihinger</p><p>means of them the legislator does not attempt to facilitate knowledge of the actual</p><p>world and they do not set up an explicit contradiction to the actual world. Legisla-</p><p>tive acts are acts of will, and as such they do not intend to represent knowledge of</p><p>anything. What is more, a legislative act cannot set itself in contradiction to actual-</p><p>ity (which it does not even intend to represent). All it does is create a normative</p><p>reality. So when the legislator says that A is to be treated as if it were a B, then by</p><p>that he is not asking us to treat A as B in order to better know A, even though we</p><p>know A not to be B. Rather, the legislative act normatively makes A a B. This means</p><p>that the same normative consequences which are attached to B are by means of this</p><p>“fiction” also attached to A. The legislator does not ask us to treat A “as if” it was a</p><p>B, but he asks us to treat A “just as” B. Rather than being “fictions” in Vaihinger’s</p><p>sense these constructs are only a convenient way of legislating, they are mere regu-</p><p>lative shortcuts.</p><p>There can be little doubt that Kelsen is correct here. Whether he has made more</p><p>than a terminological point, and whether he ever intended more, remains, however,</p><p>doubtful. What nevertheless warrants comment is the fact that since Kelsen has not</p><p>yet incorporated Merkl’s doctrine of the “double-headedness of the legal act”,7 he</p><p>did not yet seem to appreciate the fact that there can be no difference in principle</p><p>between legislation and adjudication, since both apply existing law and create new</p><p>law.</p><p>(B) In contrast, the fictions of the application of the law, e.g. fictions used by a</p><p>judge to treat a case which is explicitly not covered by a statute as if it were covered</p><p>by a statute, might satisfy the “cognition requirement” in that as a subaltern element</p><p>the application of law involves a cognitive element in relation to the law which is</p><p>applied; however, what this supposed “fiction” lacks is expediency, since, accord-</p><p>ing to Kelsen, these “fictions” cannot reach a correct conclusion. They cannot reach</p><p>a correct conclusion, Kelsen claims, since as concerns the cognition of the law, only</p><p>the law itself can be the standard of correctness. Now, adjudicative “fictions” do not</p><p>simply provisionally treat cases as if they were different, but they permanently alter</p><p>the legal material, thus violating criterion (2) and (4) of Vaihinger’s above stated</p><p>characteristics of fictions.</p><p>Kelsen is correct, as long as we presuppose the truth of positivism, i.e. as long as</p><p>we accept that the law includes only positive norms and not some interpretative ele-</p><p>ments. However, Kelsen himself seems aware of the limitation of his position as he</p><p>concedes that since juridic fictions are ultimately indistinguishable from analogical</p><p>interpretations, they have to be accepted as legitimate insofar as the legislator him-</p><p>self allows for the latter or insofar as they are warranted by means of customary law</p><p>or a “natural principle of law”.8 If that is the case, however, then it is doubtful how</p><p>much Kelsen has actually shown in his discussion of the fictions of the application</p><p>of law. It is generally unclear if the big problems of interpretation and the filling of</p><p>legal gaps can be adequately discussed under the heading of juridic fictions.</p><p>7 Merkl (1918).</p><p>8 See Kelsen, Chap. 1 above, p. 16.</p><p>christoph.kletzer@kcl.ac.uk</p><p>26 C. Kletzer</p><p>However, Kelsen’s treatment of the fictions of the application of the law faces</p><p>another challenge, one similar to the one faced by the legislative fiction: after all,</p><p>just as legislation has also an element of the application of (constitutional) law,</p><p>so adjudication has an element of creation of law. In that sense the “fictions” of</p><p>adjudication cannot be true fictions at all, since the judge in his judgment not only</p><p>applies law, but also creates new law and the same logic of legislative “fiction” ap-</p><p>plies. Now, whereas Kelsen is aware of this legislative function of judges when he</p><p>talks about the Roman Praetor being a legislative organ,9 he does not take this into</p><p>consideration when dealing with fictions of the application of law.</p><p>(C) So the only legitimate fictions are the fictions of legal theory itself, i.e. the</p><p>fictions used by legal science to better understand the law. So, for instance, Kelsen</p><p>takes the legal subject and the legal person (including the legal person of the state)10</p><p>to be but a personification or hypostatisation of a complex of norms which is ef-</p><p>fected by legal theory in order to better understand and handle this complex of</p><p>norms. According to Kelsen there is no actual bearer of legal rights and duties out</p><p>there in the world. Rather the legal subject is a construct. The fiction is created for</p><p>the purpose of simplification and illustration and it becomes an error only when we</p><p>mistake it to not be a mere (provisional and counterfactual) fiction, but a hypothesis</p><p>or even dogma about the actual world.</p><p>(D) Let us now turn to Kelsen’s discussion of freedom. Here Kelsen presents</p><p>an argument he will take up again in his Allgemeine Staatslehre and according to</p><p>which the concept of the freedom of the will is mainly the result of a profound con-</p><p>fusion. Freedom is certainly not a fiction in Kelsen’s view. It is a mistaken solution</p><p>to a pseudo-problem that emerges from the insufficient distinction of the realms of</p><p>the is and the ought. As soon as we sufficiently distinguish between the realms of</p><p>the is and the ought, the need for freedom of will withers away:</p><p>Only if one ignores the difference between is and ought (as two distinct forms of cogni-</p><p>tions) and takes the possibility of being actual as a condition of an ought-statement, only</p><p>then the illusion is created that there existed a contradiction between the statement, which</p><p>posits that something ought to be, and the statement, which claims as a matter of fact that</p><p>this something is actually impossible; only then the following error emerges: that a certain</p><p>content (the action which ought to occur) has to be actually possible, the actor thus has</p><p>to be feigned to be free, in order to make possible the statement of ought, and thereby to</p><p>simultaneously make possible the duty to act and maybe even the duty to act differently</p><p>than one actually acts, differently than one actually must or can act. A methodological error</p><p>leads to the fiction of freedom, which becomes superfluous as soon as one acknowledges</p><p>this error. This is the only way to explain the curious fact that a strict opposition between the</p><p>freedom within ethics and jurisprudence, on the one hand, and the un-freedom within natu-</p><p>ral science, on the other, could emerge, yet could at the same time be ignored by both sides.</p><p>The ethical fiction of freedom thus is useful and necessary only as long as the adequate</p><p>methodological insight is absent.11</p><p>9 See Kelsen, Chap. 1 above, p. 13.</p><p>10 For a discussion of Kelsen’s treatment of legal persons see Paulson (1998). It is unfortunate that</p><p>Paulson does not refer to Kelsen’s fiction paper.</p><p>11 See Kelsen, Chap. 1 above, p. 17.</p><p>christoph.kletzer@kcl.ac.uk</p><p>272 Kelsen on Vaihinger</p><p>Freedom seems necessary only if we claim that the statement</p><p>1. A ought to φ</p><p>can be true only if12 the statement</p><p>2. A actually can φ</p><p>is true. Now, Kelsen’s argument simply is that an ought statement cannot be con-</p><p>ditioned by an is statement. For Kelsen</p><p>(1) cannot have as its necessary condition</p><p>(2), as normative and factual statements cannot stand in any logical relation to each</p><p>other whatsoever. They can not contradict each other and they cannot condition</p><p>each other. The absence of the relation of implication can be seen from the fact that</p><p>(1) does not contradict</p><p>3. A actually cannot φ</p><p>Now, to claim that (1) implies (2) means that (1) cannot be true without (2) being</p><p>true. But this, according to Kelsen, can only be the case if (3) conflicted with (1),</p><p>which, according to Kelsen, it does not. “Peter ought to be nice” does not conflict</p><p>with “Peter is not nice”. Nor does it conflict with “Peter cannot ever be nice” or</p><p>“Peter is not free to be nice”. But if “Peter ought to be nice” does not conflict with</p><p>“Peter is not free to be nice” then it is hard to see how “Peter ought to be nice” could</p><p>ever presuppose “Peter is free to be nice”.</p><p>The point Kelsen is making is simply that the existence of freedom, which would</p><p>be a fact, cannot ever be derived from the statement of a norm.</p><p>However, Kelsen thinks that even if we make the Kantian assumption that the</p><p>natural world is fully determined causally, and that there is no place for freedom,</p><p>there is still a point of talking about the ought. The normative realm can do well</p><p>without freedom the concept of freedom is the result of a misunderstanding of the</p><p>normative realm as having a logical relation to the actual realm.</p><p>According to Kelsen the statement “Peter ought to be nice” makes sense even</p><p>when we do not attribute a magical quality of being able to suspend causation to Pe-</p><p>ter, just as it makes sense to state “The coffee ought to be hotter” without attributing</p><p>any such quality to the coffee. Of course, one might argue that “The coffee ought</p><p>to be hotter” only makes sense if understood as “Someone ought to have made the</p><p>coffee hotter”. But, this begs the question as then again we could ask whether this</p><p>someone, who supposedly ought to have made the coffee hotter, was actually in a</p><p>position to have been able to make the coffee hotter.</p><p>The point Kelsen is making is that we do not need freedom to make sense of</p><p>ought statements. Ought cannot and does not need to be analysed in terms of free-</p><p>dom, it is rather itself fundamental. We know what we mean by “Peter ought to be</p><p>nice”, “The coffee ought to be hotter”, “Brutus ought not have killed Caesar” and</p><p>this understanding does not presuppose freedom of will. This Kelsenian view, of</p><p>course, sits much more comfortably with a non-cognitivist, expressivist or emotivist</p><p>12 The relation here is the relation of simple implication: (1) → (2) making (2) a necessary but not</p><p>a sufficient condition of (1).</p><p>christoph.kletzer@kcl.ac.uk</p><p>28 C. Kletzer</p><p>meta-ethical commitment, which takes the above statements to mean: “Peter is not</p><p>nice, but I’d prefer if he was”, “The coffee is not hot, but I’d prefer if it was”, and</p><p>“Brutus did kill Caesar, but I’d prefer if he had not” and thus takes ought-statements</p><p>as expressions of desires and not of beliefs. This again shows that despite claims to</p><p>the contrary Kelsen in his fundamental normative convictions might be much closer</p><p>to Hume than to Kant.</p><p>(E) The second theme that Kelsen discusses en passant his debate of juridical</p><p>fictions is the epistemological constitution of the object of legal science, i.e. the</p><p>understanding that the sovereignty of the law is a necessary epistemological presup-</p><p>position of legal science. This theme will later move more to the centre of Kelsen’s</p><p>legal theory and turn out to be one of the foundations of the Pure Theory of Law.</p><p>Here, in contrast to the above discussion, we can find strong Kantian allusions:</p><p>After all, legal science—as cognition of a particular object—can only be possible if one</p><p>assumes the sovereignty of the law (or, which is the same, of the state), i.e. if one takes</p><p>the legal order as an independent system of norms which is not dependent on any higher</p><p>order. Otherwise only a moral science (ethics) or theology would be possible, depending on</p><p>whether one takes the law to be a result of morality or religion. (As long as we consider the</p><p>law to be an order, a complex of norms, we do not need to consider here a possible natural</p><p>science or sociology of law, which clearly would also have to be considered a science of</p><p>law).13</p><p>In this statement we can find neatly encapsulated many themes Kelsen will develop</p><p>further later on: the separation of law and morality as a condition of legal science,</p><p>the distinction of the legal order as a normative order from other possible objects of</p><p>empirical sciences, and the sovereignty of the law as an overspill of an epistemo-</p><p>logical requirement into the quality of the law itself.</p><p>What follows from this is that opposed to what Vaihinger claims, the separation</p><p>of law and morality cannot be fictitious. Or, as Kelsen himself put it in exceptional</p><p>clarity:</p><p>The relation of law and morality is in no sense a relation between two “realms of life” as</p><p>two parts of natural reality. Their “actual” relation is no relation in actuality, i.e. in real-</p><p>ity which can be captured by natural science understood in the broadest sense and also</p><p>including social sciences. The juridic perspective which Vaihinger accuses of committing</p><p>a fictitious isolation, cannot depart from an integrated part of actuality, not even in deter-</p><p>mining the relation of its object to morality, since it does not even have actuality in view.</p><p>However, insofar as law and morality are considered as—social—facts, as “actual” going-</p><p>ons in nature (and it remains an open question whether this is at all possible), they are not</p><p>objects of specific juridic cognition, or of normative ethics. And in this sense the related</p><p>fictitious isolation cannot take place at all. There is no need for it at all. For an inquiry of</p><p>the actuality of the so-called experience of law, of the factual moral ideas and the “moral”</p><p>actions effected by them—its methodological possibility simply assumed—law and moral-</p><p>ity are something completely different than what these two same words denote as objects of</p><p>normative legal science and ethics.14</p><p>Kelsen’s engagement with Vaihinger’s theory of fictions is an early text which de-</p><p>spite suffering from some defects, like the language in places being laboured and</p><p>13 See Kelsen, Chap. 1 above, p. 18.</p><p>14 See Kelsen, Chap. 1 above, p. 19.</p><p>christoph.kletzer@kcl.ac.uk</p><p>292 Kelsen on Vaihinger</p><p>stilted, or Kelsen not yet having fully found his elegant voice and intellectual vo-</p><p>cabulary, surprises in many passages with deep insights and fresh formulations still</p><p>unburdened by his later systematic endeavours.</p><p>References</p><p>Hans Kelsen. 2014. On the theory of juridic fictions. With special consideration of Vaihinger’s</p><p>Philosophy of the as-if. In Legal fictions in theory and practice, ed. Maksymilian Del Mar and</p><p>William Twining. Dordrecht: Springer.</p><p>Jestaedt, Matthias. 2013. Geltung des systems und Geltung im system. Wozu man die Grundnorm</p><p>benötigt—und wozu nicht. Juristen Zeitung 21:1009–1021.</p><p>Merkl, Adolf. 1918. Das doppelte Rechtsantlitz. Juristische Blätter 57:425–427.</p><p>Paulson, Stanley L. 1998. Two problems in Hans Kelsen’s legal philosophy. In Pragmatism, rea-</p><p>son and norms. A realistic assessment, ed. Kenneth R. Westphal, 219–242. New York: Ford-</p><p>ham University Press.</p><p>Vaihinger, Hans. 1924. The philosophy of ‘As-If’. A system of the theoretical, practical and reli-</p><p>gious fictions of mankind. Trans. C. K. Ogden. London: Routledge and Kegan Paul.</p><p>christoph.kletzer@kcl.ac.uk</p><p>Preface</p><p>References</p><p>Introducing Fictions: Examples, Functions,Definitions and Evaluations</p><p>I. Examples of Legal Fictions</p><p>II. Jobs for Fictions</p><p>III. Defining Fictions</p><p>IV. The Good, the Bad and the Ugly: Evaluating Fictions</p><p>V. Some Further Themes and Questions for Future Work</p><p>Conclusion</p><p>References</p><p>Acknowledgement Of Previous Publication</p><p>Contents</p><p>About the Authors</p><p>Part I</p><p>Theories of Fiction, Fictions of Theory</p><p>Chapter-1</p><p>On the Theory of</p><p>Juridic Fictions. With Special Consideration of Vaihinger’s Philosophy of the As-If</p><p>1.1 Content</p><p>1.2 I</p><p>1.3 II</p><p>1.4 III</p><p>1.5 IV</p><p>1.6 V</p><p>References</p><p>Chapter-2</p><p>Kelsen on Vaihinger</p><p>References</p><p>Chapter-3</p><p>Is Law a Fiction?</p><p>3.1 Introduction: Problems of Definition</p><p>3.2 Legal Science and Legal Theory: Fact or Fiction?</p><p>3.3 Law as a Science: Science or ‘As If’ Science?</p><p>3.4 Legal Reasoning and the Employment of Fiction</p><p>3.5 Can Law be Reduced to a Fiction?</p><p>3.6 Concluding Remark</p><p>References</p><p>Chapter-4</p><p>Fuller on Legal Fictions: A Benthamic Perspective</p><p>4.1 Fictions and Fictitious Entities</p><p>4.1.1 Fuller’s Definition of a Fiction</p><p>4.1.2 Bentham on Fictions and Fictitious Entities</p><p>4.1.3 Similarities and Differences Between Bentham and Fuller (and Vaihinger)</p><p>4.1.4 The Central Disagreement: Bentham’s Rehabilitation of Fictitious Propositions by Their Exposition in Terms of Real Entities</p><p>4.1.5 A Crude Taxonomy, and the Foundation of Bentham’s Hostility to Legal Fictions</p><p>4.1.6 Kelsen Versus Bentham on Legal (and Ethical) Fictions</p><p>4.2 Facts and Opinions: Objectivity and Subjectivity in Bentham</p><p>4.2.1 Morality and Law as Science: A Big Bold Claim and a Great Many Caveats</p><p>4.2.2 Assessing Judgments, Beliefs, and Opinions: The Demand for Evidence</p><p>4.3 The Useful or the True?</p><p>4.3.1 Fuller After Vaihinger: There is Only the Useful</p><p>4.3.2 Bentham: Useful Truths and Useful Fictions?</p><p>References</p><p>Chapter-5</p><p>The Pragmatic Value of Legal Fictions</p><p>5.1 Introduction</p><p>5.2 Characterizing Legal Fictions</p><p>5.3 Pragmatic Meaning of Truth</p><p>5.4 Pragmatic Characterization of Legal Fictions</p><p>5.5 Assessing the Pragmatic Value of Legal Fictions</p><p>5.6 Fictions of Nullification and Falsification</p><p>Conclusion</p><p>References</p><p>Part II</p><p>Community, Language and Literature</p><p>Chapter-6</p><p>Legal Fictions Revisited</p><p>6.1 I</p><p>6.2 II</p><p>6.3 III</p><p>6.4 IV</p><p>6.5 V</p><p>References</p><p>Chapter-7</p><p>Legal Fictions and the Limits of Legal Language</p><p>7.1 Introduction</p><p>7.2 Fuller on Legal Fictions</p><p>7.2.1 The Allure of Counterfactuality and Taxonomy</p><p>7.2.2 Fuller and Vaihinger: Fictions in Science and Law</p><p>7.3 The Possibilities of Discourse Analysis</p><p>7.3.1 The Study of Discourse Patterns</p><p>7.3.2 How Studying Discourse Patterns can Advance Fuller’s Project</p><p>7.4 Defining the Limits of Legal Language through Legal Fiction and Scientific Fact</p><p>7.4.1 The Functions of “Legal Fiction” in United States Supreme Court Opinions</p><p>7.4.2 The Boundaries of Communication in Scholarship on Science and Law</p><p>Conclusion</p><p>References</p><p>Chapter-8</p><p>Legal Fictions and Exclusionary Rules</p><p>8.1 The Limited Uses of Legal Fictions</p><p>8.2 Artifice and Exclusionary Rules</p><p>8.3 Where Can Fictions Lead?</p><p>References</p><p>Chapter-9</p><p>Law’s Fictions, Legal Fictions and Copyright Law</p><p>9.1 From Legal Fiction to Law’s Fiction: Outline of a Research Programme</p><p>9.2 Legal Fictions: Law’s Troxler Effect?</p><p>9.3 Law’s Fictions: Adjudicating Creativity, Creatively</p><p>9.3.1 Possibilism</p><p>9.3.2 Meinongian Theories</p><p>9.3.3 Creationism</p><p>References</p><p>Part III</p><p>Change and the Common Law</p><p>Chapter-10</p><p>Legal Fictions before the Age of Reform</p><p>10.2 ‘Factual’ Fictions</p><p>10.3 ‘Metaphysical’ Fictions</p><p>10.4 The Working of Fictions</p><p>10.5 Defences and Criticisms of Fictions</p><p>References</p><p>Chapter-11</p><p>Legal Fictions and Legal Change in the Common Law Tradition</p><p>11.1 Introduction</p><p>11.1.1 Defining Fictions</p><p>11.1.2 Evaluating Fictions</p><p>Conclusion</p><p>References</p><p>Chapter-12</p><p>Fictions in Tort</p><p>12.1 Introduction</p><p>12.2 Counter-factual Imprisonment?</p><p>12.2.1 Lumba</p><p>12.2.2 Kambadzi</p><p>12.2.3 Reflections on the Counter-Factuals</p><p>12.3 Fictional Causation in Negligence? Context</p><p>12.3.1 Fairchild</p><p>12.3.2 Barker and the Compensation Act 2006</p><p>12.3.3 Sienkiewwicz</p><p>12.4 The Trigger Litigation</p><p>12.5 Diachronicity</p><p>12.5.1 Fairchild and Its Development</p><p>12.5.2 Fairchild and Its Quietus</p><p>Conclusion</p><p>References</p><p>Chapter-13</p><p>Ejectment: Three Births and a Funeral</p><p>13.1 Use of a Genuine Lease for Freehold Recovery</p><p>13.2 Confessing the Lease, Entry and Ouster</p><p>13.3 Fictionalisation of the Parties</p><p>13.4 Defictionlisation</p><p>Conclusion</p><p>References</p><p>Part IV</p><p>Fictions in Practice: Past, Present and Future</p><p>Chapter-14</p><p>Fact, Fiction, and Social Reality in Roman Law</p><p>14.1 Introduction</p><p>14.2 Roman Theory: The Supposition of (Fictional) Facts</p><p>14.2.1 The Language and Epistemics of Supposition</p><p>14.3 Jurisdictional Rules</p><p>14.4 Let there be Legal Facts</p><p>14.4.1 3rd Person Imperatives and Public Law Procedure</p><p>14.4.2 Prorogation</p><p>14.4.3 Analogy, Equivalence and Substitution</p><p>14.4.4 Legal Facts and Social Reality</p><p>14.5 Life Histories</p><p>Conclusion</p><p>References</p><p>Chapter-15</p><p>Rabbinic Legal Fictions</p><p>15.1 Introduction</p><p>15.1.1 Rabbinic Literature—Preliminary Remarks</p><p>15.1.2 Definition of Legal Fictions</p><p>15.1.3 The Principal Questions</p><p>15.2 Tannaitic Fictions</p><p>15.2.1 Introduction</p><p>15.2.2 Terminology</p><p>15.2.3 Types of Tannaitic Fictions</p><p>15.2.4 Implicit Fictions</p><p>15.2.5 Chronology of Tannaitic Fictions</p><p>15.2.6 Relationship with Roman Fictions</p><p>15.3.1 Introduction</p><p>15.3.2 Stylistic Aspects</p><p>15.3.3 Functionalist Fictions</p><p>15.3.4 Hermeneutic Character</p><p>15.3.5 Types of Post-tannaitic Fictions</p><p>15.3.6 Multiple Application of Post-tannaitic Fictions</p><p>15.3.7 Rabbinic Attitudes toward Fictions</p><p>Conclusions</p><p>References</p><p>Chapter-16</p><p>Presumptions and Fictions: A Collingwoodian Approach</p><p>16.1 Introduction</p><p>16.2 The Distinction in Context</p><p>16.3 The Theoretical and Practical Dimensions of Presumptions and Legal Fictions</p><p>16.3.1 The Role of Presumptions in Theoretical and Practical Reasoning</p><p>16.3.2 Fictions of Legal Theory and Fictions of Legal Practice</p><p>Conclusion</p><p>References</p><p>Chapter-17</p><p>Some Uses of Legal Fictions in Criminal Law</p><p>17.1 Introduction</p><p>17.2 Jury Nullification</p><p>17.2.1 Benefit of Clergy</p><p>17.2.2 Fiction of Pregnancy</p><p>17.2.3 Fiction of Insanity</p><p>17.3 Plea Bargains</p><p>17.4 Forfeiture</p><p>17.5 Pecuniary Advantages</p><p>Conclusion</p><p>References</p><p>Chapter-18</p><p>Fictitious Fraud: Economics and the Presumption of Reliance</p><p>18.1 Introduction: Fiction as a Mode of Justice</p><p>18.2 Securities Laws and Their Fictions</p><p>18.3 Basic, Inc. and its Economic Fiction</p><p>18.4 A Random Walk Through Economic History</p><p>18.5 Fiction at the Crossroads of Law and Economics</p><p>18.6 Law and the Allure of Science</p><p>18.7 Conclusion: Law, Narrative, Economics (and a Dollop of Irony)</p><p>References</p><p>Index</p>