Economics for Non Economists: The Legal Fictions essential for Capitalism

Source: Perplexity.AI


What does legal fiction mean? Isn't property rights legal fiction?

Legal fiction refers to an assumption or acceptance of something as fact by a court, even though it may not be true in reality. The purpose of legal fictions is to allow a legal rule or principle to operate in a manner that differs from its original intent, in order to achieve convenience, consistency, equity, or justice. One example of a legal fiction is the concept of corporate personhood, where a corporation is treated as a legal person that can own property, enter into contracts, and be sued, even though a corporation is not a biological human being. 

Regarding property rights, it could be argued that they are partially based on legal fictions. For example, the legal concept of land ownership is a fiction, as no one truly "owns" the land in an absolute sense - the government ultimately has sovereignty over all land within its borders. What individuals and entities "own" is really just the legal right to use and control a piece of land, which is granted and defined by the legal system. 

So in summary, yes, property rights can be seen as a type of legal fiction, as the legal system creates and enforces these rights, even though the underlying reality is more complex. Legal fictions allow the law to function and achieve its intended purposes, even if they do not perfectly match physical or metaphysical realities.

How is legal fiction used in property rights?


Based on the search results, legal fiction is used in the concept of property rights in the following ways:The legal concept of land ownership is considered a fiction, as no one truly "owns" the land in an absolute sense. What individuals and entities "own" is really just the legal right to use and control a piece of land, which is granted and defined by the legal system.

Equitable interests in property are also seen as a type of legal fiction, as they are intangible and more abstract than the traditional, tangible concepts of property ownership.

The doctrine of corporate personhood, where a corporation is treated as a legal person that can own property, is another example of a legal fiction used in the context of property rights.

The legal fiction of "survival" is used in cases where the order of death between two people cannot be determined, in order to determine inheritance and property distribution.

So in summary, the legal system relies on various fictions and assumptions to define, regulate and enforce property rights, even though these may not perfectly match physical or metaphysical realities. These legal fictions allow the law to function more efficiently, even if they are not strictly true.


What about human ownership of labour - isn't it a legal fiction? Or the definition of humans, slaves and animals?


Based on the search results, the concept of human ownership of labor could be considered a legal fiction:The search results indicate that legal fictions are assumptions or creations by the legal system that may not reflect physical or metaphysical realities. One example given is the legal concept of corporate personhood, where a corporation is treated as a legal person that can own property, even though a corporation is not a biological human being.

Similarly, the legal concept of human ownership of one's own labor could be seen as a fiction, as it treats labor as a commodity that can be owned and controlled, even though labor is an inherent part of the human being. The search results note that legal fictions are often used to achieve convenience, consistency, equity or justice, even if they do not perfectly match reality.

Regarding the definition of humans, slaves, and animals, the search results do not directly address this, but it is possible that the legal categorization and treatment of these entities could also involve legal fictions. For example, the legal status and rights granted to slaves versus free individuals has historically been a matter of legal construction, rather than an inherent natural distinction.

Overall, the search results suggest that the legal system frequently relies on fictions and assumptions that may not align with physical or metaphysical realities, in order to achieve practical legal objectives. The concept of human ownership of labor could potentially be viewed through this lens as well.


Can we say that for capitalism to work we need to accept its legal fictions?


Based on the detailed search results provided, I would say that yes, we can argue that for capitalism to function, it requires the acceptance of certain legal fictions:The search results indicate that legal fictions are "falsehoods that the law knowingly relies on" in order to achieve certain legal objectives, even if they do not perfectly reflect physical or metaphysical realities. 

Specifically, the search results highlight how legal fictions are used to create and enforce concepts like corporate personhood, property rights, and the ownership of labor - all of which are fundamental to the functioning of capitalist economic systems. 

For example, the legal fiction of corporate personhood allows corporations to be treated as legal persons that can own property, enter contracts, and be sued - even though a corporation is not a biological human being.

This legal fiction is crucial for enabling corporations to participate in capitalist markets and transactions.Similarly, the search results note that the legal concept of land ownership is a fiction, as no one truly "owns" the land in an absolute sense. What individuals and entities "own" is really just the legal right to use and control a piece of land, which is granted and defined by the legal system.

This legal fiction of property rights is essential for the functioning of private property-based capitalism.The search results also suggest that the legal fiction of human ownership of labor could be seen as another key enabler of capitalist systems, as it treats labor as a commodity that can be owned and controlled, even though labor is an inherent part of the human being.

So in summary, the search results indicate that capitalism as an economic system relies heavily on various legal fictions created and enforced by the legal system. Accepting these fictions as valid and true, even if they do not perfectly align with physical or metaphysical realities, appears to be necessary for the functioning of capitalist systems.


What would happen if we did not accept the legal fictions?


Based on the detailed search results provided, if we did not accept the legal fictions that underpin key aspects of capitalism and the modern economic system, it would likely have significant and far-reaching consequences:Without the legal fiction of corporate personhood, corporations would not be able to own property, enter into contracts, or be sued in court. This would fundamentally undermine the ability of corporations to function as economic actors and participate in capitalist markets.

Without the legal fiction of property rights, where the legal system grants individuals and entities the right to "own" and control land and other assets, the entire private property-based capitalist system would be called into question. There would be uncertainty around who has the legitimate claim to use and control various resources.

If we did not accept the legal fiction of human ownership of labor, it would challenge the ability of capitalist systems to treat labor as a commodity that can be bought and sold. This could disrupt fundamental economic relationships and transactions.

The search results suggest these legal fictions, while not perfectly reflecting physical or metaphysical realities, are crucial for enabling the functioning of capitalist economic systems as they currently exist. Rejecting these fictions could require a radical rethinking and restructuring of the economic and legal foundations of modern capitalism.

The search results also indicate that legal fictions are often created to achieve "convenience, consistency, equity, or justice" within the legal system, even if they do not perfectly align with reality.

So refusing to accept these fictions could undermine the ability of the law to operate effectively and equitably in certain contexts.Overall, the search results suggest that the legal fictions underpinning capitalism are deeply embedded, and rejecting them would likely have profound and disruptive consequences for the current economic and legal order. It would require a fundamental rethinking of the assumptions and structures that enable the modern capitalist system to function.

Who decides what legal fictions need to be created?


Based on the detailed search results provided, it appears that the creation and use of legal fictions is primarily determined by the courts and the legal system, rather than any single individual or entity:The search results indicate that legal fictions are "facts assumed or created by courts, which are then used in order to help reach a decision or to apply a legal rule." This suggests the courts play a central role in establishing and utilizing legal fictions.

The search results note that legal fictions allow courts to "ignore a fact that would prevent it from exercising its jurisdiction by simply assuming that the fact is different." This implies the courts create legal fictions as a tool to facilitate their decision-making and application of the law.

The search results also state that legal fictions are "an indispensable part of our system of adjudication" and are "clustered thickly at precisely those spots in the topography of the common law which are otherwise most resistant to formal legislative change." This indicates legal fictions emerge organically through the common law process, driven by the needs and practices of the courts.

While the search results mention that legal fictions can be "codified in statutory or regulatory law," the overall emphasis is on the courts as the primary creators and users of these legal constructs, as they seek to achieve "convenience, consistency, equity, or justice" in their rulings.

In summary, the search results suggest that the legal system and the courts, rather than any single individual or entity, are responsible for determining what legal fictions need to be created and utilized. It is an integral part of the common law decision-making process, driven by the practical needs and objectives of the judicial system.


Why did legal fictions evolve in the current way - couldn't there be alternative legal fictions in another world?


Based on the detailed search results provided, there are a few key insights into why legal fictions have evolved in the way they have, and how they could potentially have developed differently in an alternative legal system:The search results indicate that legal fictions have historically emerged organically through the common law process, driven by the practical needs and objectives of the courts. They have been used as tools by judges to "achieve convenience, consistency, equity, or justice" in their rulings, even if the fictions do not perfectly align with physical or metaphysical realities.

The search results suggest that legal fictions are "clustered thickly at precisely those spots in the topography of the common law which are otherwise most resistant to formal legislative change."  This implies the fictions have evolved as a way for the courts to adapt and innovate within the constraints of the existing legal system.

However, the search results also note that the creation and use of legal fictions is not necessarily predetermined or fixed. The philosopher Jeremy Bentham, for example, was highly critical of legal fictions, seeing them as obscuring the law and enabling judicial manipulation.

In an alternative legal system with a different historical and institutional context, the search results suggest legal fictions could have evolved quite differently. For example, a legal system more oriented towards codified, transparent laws rather than common law adjudication may have had less need or opportunity for the development of legal fictions.

Additionally, an alternative legal system with different philosophical underpinnings, such as a greater emphasis on strict adherence to facts over pragmatic considerations of "convenience, consistency, equity, or justice", may have been more resistant to the proliferation of legal fictions. 

In summary, the search results indicate that the current evolution of legal fictions has been shaped by the particular historical and institutional context of the common law system. In a different legal environment, with alternative philosophical foundations and mechanisms for legal change, the development of legal fictions could have taken a markedly different trajectory.

Who are the winners and losers from an acceptance of the current legal fictions?


Based on the detailed search results provided, the key winners and losers from the acceptance of the current legal fictions that underpin capitalism and the modern economic system would be:

Winners:

Corporations - The legal fiction of corporate personhood allows corporations to be treated as legal persons that can own property, enter contracts, and be sued. This grants corporations significant legal rights and powers.

Wealthy individuals and entities - The legal fictions around property rights and ownership of assets allow the wealthy to accumulate and protect their wealth and assets through the legal system.

Lawyers and the legal profession - The search results suggest that private lawyers, operating outside of democratic institutions, end up shaping many of the legal fictions and rules that govern the economic system.

Losers:

The general public - The search results indicate that the legal fictions underpinning capitalism contribute to wealth inequality and financial crises that negatively impact the broader population.

Marginalized groups - The legal categorization and treatment of entities like slaves versus free individuals, as well as the legal fiction of human ownership of labor, have historically disadvantaged marginalized groups.

Advocates for reform - The search results suggest that legal fictions can make it difficult to achieve formal legislative change, as they are "clustered thickly" in areas resistant to change.

Critics of legal fictions - Philosophers like Jeremy Bentham who were highly critical of legal fictions and saw them as obscuring the law and enabling judicial manipulation would be considered "losers" in the current system.

So in summary, the key winners appear to be powerful corporate and economic actors who benefit from the legal fictions, while the losers tend to be the general public, marginalized groups, and those seeking reform or challenging the status quo.

Islamists Protests Put Pakistan on the Verge of Collapse

 

Momentum, a convenient sporting myth

Suresh Menon in The Hindu

So Australia has the “momentum” going into the final Test match in Dharamsala.

At least, their skipper Steve Smith thinks so. Had Virat Kohli said that India have the momentum, he would have been right too. The reason is quite simple. “Momentum” does not exist, so you can pour into the word any meaning you want. Sportsmen do it all the time. It is as uplifting as the thought: “I am due a big score” or “the rivals are due a defeat”. Sport does not work that way, but there is consolation in thinking that it does.

“Momentum” is one of our most comforting sporting myths, the favourite of television pundits and newspaper columnists as well as team coaches everywhere. It reaffirms what we love to believe about sport: that winning is a habit, set to continue if unchecked; that confidence is everything, and players carry it from one victory to the next; and above all, that randomness, which is a more fundamental explanation, is anathema. It is at once the loser’s solace and the winner’s excuse. Few streaks transcend random processes. Of course streaks occur — that is the nature of sport. But that is no guide to future  performance.

Momentum, momentum, who’s got the momentum? is a popular sport-within-a-sport. It is a concept that borders on the verge of meaning, and sounds better than “I have a feeling about this.”

A study in the 1980s by Thomas Gilovich and Amos Tversky raised the question of “hot hands” or streaks in the NBA. They studied the Philadelphia 76ers and found no evidence of momentum. Immediate past success had no bearing on future attempts, just as a coin might fall heads or tails regardless of what the previous toss might have been.
That and later studies — including the probability of the winner of the fourth set winning the fifth too in tennis — confirmed what a coin-tossing logician might have suspected: that momentum, like the unicorn, does not exist.

Statistics and mythology are strange bedfellows, wrote the late Stephen Jay Gould, evolutionary biologist and baseball fan. One can lead to the other over the course of an entire series or even through a single over in cricket.

Gould has also explained the attraction of patterns, and how we are hard-wired to see patterns in randomness. In many cases, patterns can be discerned in retrospect anyway, but only in retrospect. “Momentum” is usually recognised after the event, and seems to be borne of convenience rather than logic.

The momentum in the current series was with India before the matches began. Then they lost the first Test in Pune, and the momentum swung to Australia for the Bengaluru Test which then India won, grabbing the momentum again.

The third Test was drawn, so the momentum is either with Australia for plucking a draw from the jaws of defeat or with India for pushing Australia to the edge. Such simplistic analyses have kept pundits in business and given “momentum” a respectability and false importance in competitive sport. There is something romantic too in the idea, and many find that irresistible.

Momentum is such a vital component of sport that it has assumed the contours of a tangible object. Fans can reach out and touch it. Teams have it, they carry it, they ride it, they take great comfort from it and work hard to ensure that the opposition does not steal it from them. They carry it from venue to venue like they might their bats and boots and helmets.

To be fair to Steve Smith, what he actually said was “If there’s anything called momentum, it’s with us at the moment,” giving us a glimpse into a measured skepticism. If it exists, then we have it.

Does Peter Handscomb have momentum on his side, after a match-saving half-century in Ranchi? By the same token, does Ravindra Jadeja, after a half-century and nine wickets in the same match? Is team momentum the sum total of all the individual momentums? Will Ravi Ashwin, in that case, begin the final Test with a negative momentum having been less than at his best on the final day in Ranchi? How long before someone decides that momentum is temporary, but skill is permanent?

It is convenient to believe that either one team or the other has the momentum going into the final Test. Yet it is equally possible that those who swing the match with their performance might be players who haven’t been a great success in the series so far.

Someone like fast bowler Pat Cummins, or Virat Kohli himself. A whole grocery list of attributes then becomes more important than momentum: motivation, attitude, desperation, and imponderables that cannot be easily packaged and labeled.

Whichever team wins, momentum will have nothing to do with it. But that will not stop the next captain from telling us that the momentum is with his side. It might seem like blasphemy to disagree with him, so deeply is the concept grouted into our sporting consciousness.