Maksymilian Del Mar

Legal Fictions and Legal Change in the Common Law Tradition

This chapter offers a definition of legal fictions and an evaluation of the role of legal fictions in legal practice, especially insofar as they enable legal change. The first part of the chapter defines legal fictions as any suspension of one or more of the required operative facts leading to the imposition of an associated normative consequence, whether this suspension is introduced because of (1) the absence of proof of some previously required fact; or (2) the presence of proof to the contrary. The second part argues that legal fictions have an unjustifiably bad reputation as enablers of legal change. This chapter makes a plea for seeing legal fictions as forms of tentative cognition that enable courts to communicate with each other, exploring whether a certain change in the law (i.e. precisely a suspension of a required operative fact in the imposition of a certain normative consequence) ought to be introduced at a more explicit level. Under the guise of this relational reading of legal reasoning, legal fictions become an instrument of careful experimentation—a way of testing the extent to which the potential introduction of a rule will be beneficial. Seen in this light, legal fictions are by no means signs of the immaturity of the system; they are, instead, dynamic resources that allow courts, over time, to balance flexibility and responsiveness with stability and predictability.

Legal fictions in theory and practice

Preface William Twining.- Introducing Fictions: Examples, Functions, Definitions and Evaluations Maksymilian Del Mar.- I. Theories of Fiction, Fictions of Theory.- 1. On the Theory of Juridic Fictions. With special consideration of Vaihingers Philosophy of the As-If Hans Kelsen, translated by Christoph Kletzer.- 2. Kelsen on Vaihinger Christoph Kletzer.- 3. Is Law a Fiction? Geoffrey Samuel.- 4. Fuller on Legal Fictions: A Benthamic Perspective Michael Quinn.- 5. The Pragmatic Value of Legal Fictions Douglas Lind.- II. Community, Language and Literature.- 6. Legal Fictions Revisited Frederick Schauer.- 7. Legal Fictions and the Limits of Legal Language Karen Petroski.- 8. Legal Fictions and Exclusionary Rules Simon Stern.- 9. Laws Fiction, Legal Fiction and Copyright Law Burkhard Schafer and Jane Cornwell.- III. Change and the Common Law.- 10. Legal Fictions before the Age of Reform Michael Lobban.- 11. Legal Fictions and Legal Change in the Common Law Tradition Maksymilian Del Mar.- 12. Fictions in Tort James Lee.- 13. Ejectment: Three Births and a Funeral Peter Sparkes.- IV. Fictions in Practice: Past, Present and Future.- 14. Fact, Fiction, and Social Reality in Roman Law Clifford Ando.- 15. Rabbinic Legal Fictions Leib Moscovitz.- 16. Presumptions and Fictions: A Collingwoodian Approach Raymundo Gama.- 17. Some Uses of Fictions in Criminal Law Peter Alldridge.- 18. Fictitious Fraud: Economics and the Presumption of Reliance Randy D. Gordon.- Index.

Marmor’s Social Conventions: The Limits of Practical Reason

This essay argues that the practical reason approach to the study of social conventions (and social normativity more generally) fails to adequately account for the fluency of social action in environments that we experience as familiar. The practical reason approach, articulated most recently in Andrei Marmor’s Social Conventions: From Language to Law (2009) does help us, though not wholly adequately, to understand how we tend to react to, and experience, unfamiliar situations or unfamiliar behaviours, i.e., those situations in which a certain practice becomes problematic or is problematised, or where we are obliged to, or moved to, justify or deliberate. The reason why the practical reason approach is not wholly adequate when it comes to understanding unfamiliar situations or unfamiliar behaviours is that it tends to subsume the unfamiliar under the familiar, i.e., it tends to negatively evaluate anything that is deemed to be not in accordance with the rules and reasons already familiar to the observer. This excludes the possibility of the observer having to transform himself or herself, and thus change what is familiar to him or her.This essay argues that the practical reason approach to the study of social conventions (and social normativity more generally) fails to adequately account for the fluency of social action in environments that we experience as familiar. The practical reason approach, articulated most recently in Andrei Marmor’s Social Conventions: From Language to Law (2009) does help us, though not wholly adequately, to understand how we tend to react to, and experience, unfamiliar situations or unfamiliar behaviors, that is, those situations in which a certain practice becomes problematic or is problematized, or where we are obliged to, or moved to, justify or deliberate. The reason why the practical reason approach is not wholly adequate when it comes to understanding unfamiliar situations or unfamiliar behaviors is that it tends to subsume the unfamiliar under the familiar, that is, it tends to negatively evaluate anything that is deemed to be not in accordance with the rules and reasons already familiar to the observer. This excludes the possibility of the observer having to transform himself or herself, and thus change what is familiar to him or her.

Exemplarity and Narrativity in the Common Law Tradition

Abstract This paper argues that for the purposes of analyzing legal reasoning, exemplarity is profitably understood as a complex concept with the following dimensions: first, typicality; second, atypicality; and third, modelling for the future. These dimensions can also be usefully thought of in temporal terms: typicality is backward-looking, atypicality is present-regarding, and modelling is future-oriented. Any instance of exemplarity delicately balances these dimensions. This is equally so for any legal reasoning process, which must balance respect for the particularity of the present case, with respect for relevant past decisions and respect for the way in which the case might be used by future courts and those citizens most likely to be affected by the decision. The paper argues further that a useful device for balancing these dimensions of exemplarity is narrative. However, when we combine exemplarity and narrativity, we must be careful not to fall into the trap of thinking of narratives in a narrowly exemplary way, that is, as tales with a moral. To combine narrativity with exemplarity usefully—for the purposes of analyzing legal reasoning—narrative is best understood thinly, namely as a temporally organized matrix of happenings that resonates emotionally with the audience. So conceived, the processes of common law reasoning are full of exemplarity and narrativity. The paper is structured in two parts: the first elaborates on the concepts of exemplarity and narrativity used in the paper, situating them in the relevant literature; the second applies those concepts to a particular common law case, Williams v, Roffey (1991).

What Does History Matter to Legal Epistemology

This paper argues that not only does history matter to legal epistemology, but also that understanding legal epistemology can yield a certain understanding of the past. The paper focuses on the common law practice of precedent and argues that there is no set of rules, principles, reasons or material facts that constitute the fixed or foundational content of past decisions (a ‘timeless what’ that determines its own relevance), but rather that what is taken by a judge resolving a particular dispute to be the content of past decisions depends on the active and creative construal of relevance engaged in by that judge. Precedents are better thought of as ‘thick resources with dynamic content.’ Such content is constrained by a variety of stabilising practices, but never so constrained as to determine how it can be construed to be relevant. This image of law’s past may offer a general view of the past as something with which we can actively and creatively relate in the course of coping with the present.

The moral quality of work in international economic institutions: resisting complacency

This paper offers a theory thanks to which, we argue, we can more appropriately evaluate and potentially improve the moral quality of work. There are three components to such a theory. The first two components, which we argue need to be integrated, are normative resources that appeal to two different behavioural capacities: first, the articulation of rules, appealing to the capacity of agents to deliberate about what they ought to do; second, the introduction of forms of institutional design, appealing to the capacity of agents to acquire habits and dispositions in certain social environments. The third and most important component is that of the infinity of suffering and vulnerability. This component has both a negative and a positive aspect. On the negative side, the component is designed to assist us in recognising the inevitable limitations of either normative resource or indeed any one integrated totality of normative resources (i.e., both rules and forms of institutional design). Those limitations consist in the narrowing of the domain of objects of value towards which workers are guided or oriented by either or both normative resources. On the positive side, the component encourages us to construct alternative normative resources on the basis of alternative forms of representation of suffering and vulnerability. In that respect, the specific policy proposal of this paper is that of the establishment of Community Forums, which are designed to offer a framework thanks to which some of the particularities of suffering and vulnerability within a specific community can be recognised and communicated in a multiplicity of ways, thereafter forming a resource for the development of policy with respect to the challenges facing that specific community. The second part of the paper applies this theory to consider the value and limitations of second-generation reforms in international economic institutions. The third part of the paper further considers the values and limitations of reforms for access to public goods and services in Nigeria.

Imagining by Feeling: A Case for Compassion in Legal Reasoning

This paper argues that feeling compassion (and other relational emotions) makes an important, beneficial difference in adjudication, as it improves the exercise of the perspectival imagination – that is, it helps a judge to better understand, and to better describe, a situation as another person experienced it. Even where a judge has a highly developed capacity for empathy and sympathy (these being cognitive and evaluative processes that are distinguishable from emotions), there is something to be gained by a judge actually feeling compassion. However, given the potential for the distortion of understanding as a consequence of feeling compassion, any such feeling has to be accompanied by the robust exercise of the perspectival imagination – that is, by imagining multiple perspectives (including sometimes constructing imaginary ones), so as to avoid privileging any one perspective over others. It is further argued that this ‘imagining by feeling’, as I call it in this paper, is not a threat to impartiality or the rule of law, but in fact a condition of it. It is part of the rule of law that people have a right to be heard, especially those whom we may otherwise find it difficult to understand. Imagining by feeling helps judges to better ‘hear’ a greater diversity of those who come before them, and thus helps the judiciary to improve the quality of the rule of law.

The Forward-Looking Requirement of Formal Justice: Neil MacCormick on Consequential Reasoning

This paper discusses a much-neglected aspect of Neil MacCormicks theory of legal reasoning, namely what he calls ‘consequential reasoning’. For MacCormick, consequential reasoning is both an omnipresent feature of legal reasoning in England and Scotland, as well as being a valuable one. MacCormick articulates the value of consequential reasoning by seeing it as contributing to the forward-looking requirement of formal justice, ie, of deciding the instant case on grounds that one is willing to adopt when deciding future similar cases. This paper situates consequential reasoning in the overall picture of legal reasoning MacCormick develops in Legal Reasoning and Legal Theory (1978), going on to show the evolution of his view on consequential reasoning in later work, which culminates in Rhetoric and the Rule of Law (2005). It is argued that MacCormicks later view of consequential reasoning, ie, of a process of testing (including refining) possible rulings by evaluating the acceptability or unacceptability (ie, the normative status) of possible conduct under the guise of the possible ruling in concrete hypothetical scenarios, is indeed a common feature of legal reasoning and also one of great value.This paper discusses a much-neglected aspect of Neil MacCormicks theory of legal reasoning, namely what he calls ‘consequential reasoning’. For MacCormick, consequential reasoning is both an omnipresent feature of legal reasoning in England and Scotland, as well as being a valuable one. MacCormick articulates the value of consequential reasoning by seeing it as contributing to the forward-looking requirement of formal justice, ie, of deciding the instant case on grounds that one is willing to adopt when deciding future similar cases. This paper situates consequential reasoning in the overall picture of legal reasoning MacCormick develops in Legal Reasoning and Legal Theory (1978), going on to show the evolution of his view on consequential reasoning in later work, which culminates in Rhetoric and the Rule of Law (2005). It is argued that MacCormicks later view of consequential reasoning, ie, of a process of testing (including refining) possible rulings by evaluating the acceptability or unacceptability ...

Common virtue and the perspectival imagination: Adam Smith and common law reasoning

ABSTRACTThis paper considers the similarities between Adam Smiths device of the impartial spectator and the use of perspectival devices in common law reasoning. The paper adopts a reading of Smiths device as one involving the exercise of imaginative sympathy by an ordinarily virtuous, and culturally and historically situated, spectator who does not have a stake in the outcome of the scene being evaluated. The point here is to show that the impartial spectator is 1) a device of common, ordinary virtue – both in the sense of being located in a culture at a specific point in time, and in the sense of possessing only moderate, achievable virtues (e.g. being moderately affectively sensitive); and 2) a device that enables a focus on a situation, which requires imaginative work, emotional engagement and careful, particularised description. Having so modelled Smiths device, the paper shows the similarities between it and the use of perspectival devices in common law reasoning, specifically here via the ‘right-...

Must We Play to Win? A Reply to Morgan

This paper offers a brief reply to William Morgan’s critique of my review of Andrei Marmor’s Social Conventions (2009). Morgan’s principal critique is that I am wrong to think that the constitutive rules of games do not determine their aims and values. In particular, with regards to chess, Morgan argues that the rules of chess determine that the aim of playing chess is to win the game. I defend my position that one can play the game of chess without the aim of winning - e.g. one can aim to play beautifully, and not, as Morgan suggests, only to win beautifully. More broadly, I argue for an account of games that is sensitive to the gap between playing and the game’s constitutive rules. Ultimately, the argument points to the descriptive priority for the social sciences of the concept of ‘play’ over the concept of games understood as ‘rule-governed domains’.This paper offers a brief reply to William Morgan’s critique of my review of Andrei Marmor’s Social Conventions (2009). Morgan’s principal critique is that I am wrong to think that the constitutive rules of games do not determine their aims and values. In particular, with regards to chess, Morgan argues that the rules of chess determine that the aim of playing chess is to win the game. I defend my position that one can play the game of chess without the aim of winning - e.g. one can aim to play beautifully, and not, as Morgan suggests, only to win beautifully. More broadly, I argue for an account of games that is sensitive to the gap between playing and the game’s constitutive rules. Ultimately, the argument points to the descriptive priority for the social sciences of the concept of ‘play’ over the concept of games understood as ‘rule-governed domains’.