This chapter proposes a definition for legal fiction. The problem of definition has divided scholars into multiple camps and held back progress. The definition proposed here is a compromise which seeks to preserve precision while covering the true range of fictitious devices. My definition is composed of two limbs: Hard Fiction and Soft Fiction. In developing this definition, I address a range of theoretical issues. I rebut arguments by Vaihinger and Kelsen that fictions do not exist. I discuss fictions from a linguistic perspective. I discuss the relationship between fictions and rules, and between fictions and counter-factuals. Also explored are contributions to the definitional debate by Fuller, Olivier, Ross, Chiassoni, Del Mar and earlier thinkers. The Chapter concludes with an application of the proposed definition in two case studies: the reasonable man and volenti non fit injuria. I argue the latter is a Soft Fiction and the former is not a fiction.

Hans Kelsen’s interventions in the law of the Nuremberg trials have remained unexplored with the exception of notes in passim or a couple of brief studies. International criminal law, is true, was not Kelsen’s main object of study. However, the events culminating in Nuremberg, both the shocking Nazi policies and that Kelsen was an émigré in the United States were instrumental to precipitate his close engagement with international criminal law during the dawn years between 1942 and 1945. This chapter introduces the man and his ideas, traces elements of the pure theory that relate to the principle of individual criminal responsibility and, with the help of hitherto unknown archival material, describes for the first time Kelsen’s personal participation in the preparations of Nuremberg and the history behind his absence from the International Military Tribunal. The chapter concludes with a selection of two aspects of Kelsen’s activities as a legal advisor for the US War Crimes Commission: first, his insistence on the need for an international treaty as the legal basis of the IMT in order to avoid victors’ justice and problems of jurisdiction; second, his contribution towards the inclusion of individual criminal responsibility in the London Agreement.

Notwithstanding the obvious lacunas and lack of documents concerning Trainin’s controversial biography, the author makes an attempt to take a fresh and independent look at Trainin’s personality and scholarship. Kisaburō Yokota (1896–1993) was one of the most influential, albeit not uncontentious, international lawyers in interwar and postwar Japan, and an eminent early champion of international criminal justice, when this was still highly unpopular in Japan. His internationalist vision inspired by Kelsen and his critique of Japan’s aggressive expansion politics in the 1930s put him in the minority. After Japan’s defeat, this earlier position stood him in good stead and he advanced to being the most influential lawyer and public intellectual in postwar Japan, advising the Supreme Commander for the Allied Powers (SCAP) as well as the Japanese government in matters of international law and criminal justice. Thus, he was a strong advocate for the Tokyo Trial of 1946–1948, published widely in support of it and also helped SCAP translate the final verdict into Japanese. The onset of the Cold War soon led to a more realistic repositioning of Yokota, but in his advocacy of international criminal justice, he remained steadfast. A study of Yokota’s writings and discussions serve to understand the historical position of Japanese lawyers and intellectuals towards the Tokyo Trial and international criminal justice even today.

Chapter 2 discusses the existing theories of legal obligation. Here I introduce a basic distinction between approaches to legal obligation, or paradigms for an understanding of it: the distinction between the ‘empirical model’ (with its main variants consisting in the ‘predictive account’ and ‘imperatival account’) and the ‘normative model’ (which comes in different versions, irreducible one to another, the most significant of which are the ‘formal account’, the ‘social practice account’, the ‘interpretivist account’, and the ‘reason account’). I will also defend the view that, without too much oversimplification, the basic conceptions of legal obligation advocated in jurisprudence today can be reduced to those two paradigms. However, I will go on to claim, only the normative model offers a presumptively sound interpretation of the kind of obligation engendered by law.