Published 2023-01-10
Keywords
- Fictions, Presumptions, Similitudes, Images of disputed cases, Disguise of facts, Jurists, Normative innovations
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Abstract
Fiction is a logical procedure by which the representation of a fact is altered or falsified. In legal discourse, the altered or falsified image of the fact serves to justify the choice of legal qualification and regulation, which otherwise could not apply. In Roman law, fiction is often used both in norms (such as leges, senatus consulta, edicta, constitutiones principum) and in jurisprudence. Jurists interpret norms, but they also construct autonomous fictions to introduce in disputed cases. They differ from the inductive procedures underlying presumptions and similitudes. The pattern of fiction also recurs in rhetorical treatises. Between legal and rhetorical uses there is a convergence, a similar way of intervening on facts. The goal is in rhetorical discourse persuasion, in legal discourse the establishment of an objective discipline of cases. This discipline is usually the bearer of innovations. The essay examines them, dwelling on the contributions of individual jurists.