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"legal Fiction" And "legal Formalism" Interactive Relationship

Posted on:2013-03-28Degree:MasterType:Thesis
Country:ChinaCandidate:N J WangFull Text:PDF
GTID:2246330395450916Subject:Legal history
Abstract/Summary:PDF Full Text Request
Legal fiction is a widespread phenomenon that exists in many legal systems and involves some significant issues in jurisprudence. This thesis tries to analyze legal fiction in the development of English common law from the perspective of the interaction between legal fiction and legal formalism, with a special reference to the influence legal fiction imposed upon the growth of English contract law. In addition to an introduction and an epilogue, this thesis is composed of four chapters.The introduction reviews the related literature on legal fiction to clarify the academic basis of this thesis, shows the significance of this topic, and explains the rationale in choosing the growth of English contract law as an example.The first chapter summarizes the debates on the definition of legal fiction, and puts forward the author’s definition.The second chapter discusses the influence that legal fiction had in the growth of English contrat law, revealing how legal fiction developed tresspass on the case into assumpsit, a new form of action with the contents of the modern contract law. Besides, the chapter explored the relations between legal fiction and the doctrine of consideration with a conlusion that legal fiction can be absorbed by a new legal form.The third chapter focuses on legal formalism, examining its definition, its characteristics in the writ system, and how inevitably it relies on legal fiction.The fourth chapter shows how legal fiction works in a formalistic legal system, especailly its working mechanism in legal reasoning in the writ system. The author distinguishes two types of legal fiction and their mutual relations, and discusses the remedy legal fiction gave to legal formalism, i.e., the methods through which social norms, usages and ideas entered into a legal system via legal fiction.The last part concludes and points out some unsolved questions worthy of further research.
Keywords/Search Tags:Legal Fiction, Legal Formalism, English Common Law, EnglishContract Law
PDF Full Text Request
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