Law & Humanities Blog |
Posted: 10 Aug 2011 02:54 PM PDT John D. Haskell, University of Helsinki, University of London, and International University College of Turin, has published Hugo Grotius in the Contemporary Memory of International Law: Secularism, Liberalism, and the Politics of Restatement and Denial in volume 25 of the Emory International Law Review (2011). Here is the abstract.
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In response, I have organized the paper into three themes, which overlapping in some respects, are nevertheless helpful in parceling out the various approaches and motivations at work in the literature. The first and second sections provide an overview and then a revisionist account of the claims to what might be labeled the turn to 'the secular' and 'liberal tolerance'. In the third section, the paper moves to reflect more broadly upon the implications of this attraction, attempting particularly to deduce some possible motivations for the continuous misreading of Grotius' actual work. In conclusion, I briefly trace out some initial suggestions about an alternative future towards the legacy of the Grotian tradition, what might be characterized as a shift from a politics of restatement and denial to a politics of truth.The full text is not available from SSRN.
The Permanence of Legal Fictions
Posted: 10 Aug 2011 02:48 PM PDT
Frederick Schauer, University of Virginia School of Law, has published Legal Fictions Revisited. Here is the abstract.
Download the full text from SSRN at the link.There was a time when the topic of legal fictions engaged many of the most important thinkers about law, including Jeremy Bentham, Morris Cohen, John Chipman Gray, Jerome Frank, Lon Fuller, Rudolf von Ihering, Hans Kelsen, Henry Sumner Maine, Alf Ross, and Pierre de Tourtoulon, among many others. But that time has passed, and these days "legal fiction" has become little more than a loosely used all-purpose term of legal criticism. This change is unfortunate, however, because real legal fictions still exist and are still important. Even more significantly, however, understanding legal fictions helps us to understand legal presumptions, and, even more broadly, provides a valuable window into understanding legal truth and legal language. This paper, prepared for the Project on Truth and Law of the Instituto Tecnológico Autónomo de México (ITAM), explores these issues, recapturing some of the historical thinking about legal fictions, distinguishing true legal fictions from the notion of a fiction in Kelsenian legal philosophy, deflating the notion that legal presumptions are legal fictions, and examining the relationship among true legal fictions, legal truth, and legal language.
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