Canadian Social Science
From Coke to Maine: The Formation of Concept of “Legal Fiction” at English Law
Abstract
From Edward Coke to Henry Maine, the discussions on the “legal fiction” gradually rose from the practical level to the intellectual level, and the discussants themselves have changed their positions, from users or makers of legal fictions to pure observers, with different view-points. The nature of a fiction is always falsehood according to its definition, but scholars made different judgments on its role in English legal history. William Blackstone praised legal fictions, but Jeremy Bentham denounced them as tools by which the judges and lawyers stole legislative power. Henry Maine gave his definition of legal fictions and emphasized their historical role.
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DOI: http://dx.doi.org/10.3968/9661
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