From Coke to Maine: The Formation of Concept of “Legal Fiction” at English Law

Chuanxi ZHANG

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.


Keywords


Legal fiction; English jurisprudence; Intellectual history; Historical role

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References


Bentham, J. (1843). Introductory view of the rationale of evidence; for the use of non-lawyers as well as lawyers. In J. Bowring (Ed.), The works of Jeremy Bentham (Vol.VI, p.100). London: Simpkin, Marshall and Co.

Bentham, J. (1843). A fragment on government. In J. Bowring (Ed.), The works of Jeremy Bentham (Vol.I, pp.242-3). London: Simpkin, Marshall and Co.

Bentham, J. (1843). Rationale of judicial evidence, specially applied to English practice. In J. Bowring (Ed.), The works of Jeremy Bentham (Vol.VII, pp.283-7). London: Simpkin, Marshall and Co.

Blackstone, W. (1765). Commentaries on the laws of England. Oxford: Printed at the Clarendon Press.

Bowring, J. (Ed.). (1843). The works of Jeremy Bentham. London: Simpkin, Marshall and Co.

Coke, E., et al. (1826). The reports of sir Edward Coke (Vol.V, Part X). London: Joseph Butterworth and Son.

Maine, H. S. (1871). Ancient law: Its connection with the early history of society, and its relation to modern ideas. New York: Charles Scribner & Co.

Renton, A. W. (1897). Encyclopaedia of the laws of England being a new abridgment by the most eminent legal authorities (Vol.5, pp.335-6). London: Sweet & Maxwell L LD.




DOI: http://dx.doi.org/10.3968/9661

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