Legal Fictions in Theory and Practice (Law and Philosophy

This multi-disciplinary, multi-jurisdictional assortment deals the 1st ever full-scale research of felony fictions. Its concentration is on fictions in felony perform, reading and comparing their roles in numerous diverse components of perform (e.g. in Tort legislation, felony legislation and highbrow estate legislation) and in several occasions and locations (e.g. in Roman legislations, Rabbinic legislation and the typical Law). the gathering ways the subject partly throughout the dialogue of convinced key classical statements by way of theorists together with Jeremy Bentham, Alf Ross, Hans Vaihinger, Hans Kelsen and Lon Fuller. the gathering opens with the first-ever translation into English of Kelsen’s overview of Vaihinger’s as though. The 17 chapters are divided into 4 elements: 1) a dialogue of the central theories of fictions, as above, with a spotlight on Kelsen, Bentham, Fuller and classical pragmatism; 2) a dialogue of the connection among fictions and language; three) a theoretical and ancient exam and overview of fictions within the universal legislations; and four) an account of fictions in numerous perform parts and in several criminal cultures. the gathering could be of curiosity to theorists and historians of felony reasoning, in addition to students and practitioners of the legislations extra regularly, in either universal and civil legislation traditions.

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E. a lawful result which is reached by means of the analogous-fictitious interpretation. Now, the legality of this result can only be measured against the legal order itself; however, the contradiction to the legal order in the case of a fictitiousanalogous application of law is not merely a provisional, correctible one, but a definite one, one which cannot be corrected in due course. 27 Of the juridic fictions, however, he claims that such a correction is not necessary. 28 However, it is thereby by no means established that the correction of juridic fictions in case of the application of the law is superfluous!

5 IV In order to demonstrate that the fictions of the application of the law do not belong within Vaihinger’s system of fictions, it needs to be stated, that cognition of law— which alone can lead to a fiction in the true sense of the term—only plays a subordinate role in the application of law. It is not the essence, the actual purpose of this activity, but only the means by which it reaches its goal. The application of law, just as the creation of law, does not really intend the cognition of law, but its realisation, it is about acts of the will.

9 1 On the Theory of Juridic Fictions 7 of a thing is also a personifying fiction lets the legal subject and the subjective right, which are somehow understood as “things” appear to be quite similar, if not identical hypostases of the “objective” legal norm. e. of the concept of the soul, or the concept of force,13 the logical untenability of which does not militate against its actual practicability. It would certainly be a worthwhile endeavour to try to understand the legal person as a kind of legal soul.

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