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RULES TO THE GAME- LEGAL FICTIONS- WHY YOU DON’T WIN IN COURT

19 June 2017 Blog


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The Fiction as a Linguistic Phenomenon – page 9-10 Ihering once said that the History of the Law could write as a motto over her first chapter the sentence, “In the beginning was the Word.”26 Students of the legal fiction might also take this motto to heart. For certainly it is a truth commonly overlooked that the fiction is “a disease or affection of language.” 26 Ihering expresses in this fashion the exaggerated respect shown by early law for the written and spoken word. “Among all primitive peoples the word appears as something mysterious; a naive faith ascribes to the word a supernatural Power” (II2,441). Anyone who has thought about the legal fiction must be aware that it presents an illustration of the all-pervading power of the word. That a statement which is disbelieved by both its author and his audience can have any significance at all is evidence enough that we are here in contact with the mysterious influence exercised by names and symbols. In that sense the fiction is a linguistic phenomenon. What Is a Legal Fiction? – Pages 4-5 The influence of the fiction extends to every department of the jurist’s activities. Yet it cannot be said that this circumstance has ever caused the legal profession much embarrassment. Laymen frequently complain of the law: they very seldom complain that it is founded upon fictions. 


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