Purposive Interpretation and the Regulation of Technology: Legal Constructs, Legal Fictions, and the Rule of Law

Blackstone and Bentham held opposing views about the legitimacy of legal fictions. Blackstone felt that legal fictions could be useful devices, whereas Bentham held them in complete contempt. This paper aims to partially reconcile these two positions. It distinguishes between two types of fictions i...

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Bibliographic Details
Published inMedical law international Vol. 8; no. 4; pp. 305 - 324
Main Authors Adcock, Mike, Beyleveld, Deryck
Format Journal Article
LanguageEnglish
Published London, England SAGE Publications 01.12.2007
AB Academic Publishers
Subjects
Fiction
Legitimacy
Rule of law
Technology
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Summary:Blackstone and Bentham held opposing views about the legitimacy of legal fictions. Blackstone felt that legal fictions could be useful devices, whereas Bentham held them in complete contempt. This paper aims to partially reconcile these two positions. It distinguishes between two types of fictions in the law, one described as a fiction for the purposes of the law and the other as a fiction about the law. Examples are drawn from medical and patent law to highlight situations where the law has been used in a purposive manner to achieve fundamental values, compared to where the law has been distorted to realise an aim incompatible with the rule of law. Some implications for the standard doctrine of legal fictions are drawn.
ISSN:0968-5332
2047-9441
DOI:10.1177/096853320700800402