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"The Loss of the Person: The British Debates on the Legal Status of Groups and Individuals, 1880-1930"
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and the early 1930s saw the rise of the reaction against both Realism and orthodox Fiction Theory, constituting an ersatz legal movement I will call Fiction Theory Nominalism.
Fiction Theory Nominalism, unlike Realism, does not reflect any
unified school of thought, or group of individuals who saw themselves as engaged in a collective enterprise. Instead, the label is meant to encompass several different schools of thought, each coming to prominence during the 1920s. Their single overlapping consensus was a shared disgust for a jurisprudential orthodoxy they believed to be constituted by sloppy metaphors and half remembered metaphysics. This harsh judgment included, but extended beyond, the Realists, who were an almost too easy target for the Nominalists. Their scorn more significantly extended to the incomplete thinking of Hollands and Salmonds of the textbook orthodoxy, as the later editions of their now canonical textbooks continued to guard the separation of natural and artificial personhood.
There are three different strands of jurisprudence that end up with a
more rigorously nominalist conclusion to the problem of personhood. The first group consists of legal pragmatists and American legal realists (not to be confused with Realists like Figgis). Their application of pragmatic thought, anti-metaphysical bent, and orientation toward the social sciences constituted the major American contribution to legal thought and practice of the twentieth century. The second group of nominalists represents the jural relations school, a more stringent strain of analytical jurisprudence than that practiced by the late Victorians. The final school seeking to dissolve the dualism between natural and artificial persons is legal positivism, whose adherents sought a stricter separation between law and morality than was achieved by the Victorian positivists. I shall study an exemplar representing each of these different schools: John Dewey, Albert Kocourek, and Hans Kelsen.
Before turning to these thinkers, let me say a few words about why I
have identified these different schools with nominalism. Nominalists contend either that no universals exist in reality or are unperceivable to the human mind.
101
Universal concepts such as horses, red, beauty, and justice
exist merely through the names that are used to designate what are actually products of the mind. The nominalists who subscribe to Fiction Theory argue that the unreality of the person was not restricted to juristic persons
101
D.M. Armstrong. Nominalism and Realism. (New York: Cambridge University Press, 1978)
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39
and the early 1930s saw the rise of the reaction against both Realism and
orthodox Fiction Theory, constituting an ersatz legal movement I will call
Fiction Theory Nominalism.
Fiction Theory Nominalism, unlike Realism, does not reflect any
unified school of thought, or group of individuals who saw themselves as
engaged in a collective enterprise. Instead, the label is meant to encompass
several different schools of thought, each coming to prominence during the
1920s. Their single overlapping consensus was a shared disgust for a
jurisprudential orthodoxy they believed to be constituted by sloppy
metaphors and half remembered metaphysics. This harsh judgment
included, but extended beyond, the Realists, who were an almost too easy
target for the Nominalists. Their scorn more significantly extended to the
incomplete thinking of Hollands and Salmonds of the textbook orthodoxy, as
the later editions of their now canonical textbooks continued to guard the
separation of natural and artificial personhood.
There are three different strands of jurisprudence that end up with a
more rigorously nominalist conclusion to the problem of personhood. The
first group consists of legal pragmatists and American legal realists (not to
be confused with Realists like Figgis). Their application of pragmatic
thought, anti-metaphysical bent, and orientation toward the social sciences
constituted the major American contribution to legal thought and practice of
the twentieth century. The second group of nominalists represents the jural
relations school, a more stringent strain of analytical jurisprudence than that
practiced by the late Victorians. The final school seeking to dissolve the
dualism between natural and artificial persons is legal positivism, whose
adherents sought a stricter separation between law and morality than was
achieved by the Victorian positivists. I shall study an exemplar representing
each of these different schools: John Dewey, Albert Kocourek, and Hans
Kelsen.
Before turning to these thinkers, let me say a few words about why I
have identified these different schools with nominalism. Nominalists
contend either that no universals exist in reality or are unperceivable to the
human mind.
101
Universal concepts such as horses, red, beauty, and justice
exist merely through the names that are used to designate what are actually
products of the mind. The nominalists who subscribe to Fiction Theory
argue that the unreality of the person was not restricted to juristic persons
101
D.M. Armstrong. Nominalism and Realism. (New York: Cambridge University Press, 1978)
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