Legal fictions in practice and legal science |
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Page 65
... respect should be cleared up.8 For an understanding of the structure of the
metaphor, Margolis' analysis appears to me the most helpful.9 Margolis sets out
to distinguish between the logical construction of metaphors, similes and
analogies.
... respect should be cleared up.8 For an understanding of the structure of the
metaphor, Margolis' analysis appears to me the most helpful.9 Margolis sets out
to distinguish between the logical construction of metaphors, similes and
analogies.
Page 166
The jurist who is asked to explain any new legal rule, or to predict the future
development of a rule, or to systematise new rules, must of necessity refer back to
a known premise; by a process of analogy and comparison to existing norms,
new ...
The jurist who is asked to explain any new legal rule, or to predict the future
development of a rule, or to systematise new rules, must of necessity refer back to
a known premise; by a process of analogy and comparison to existing norms,
new ...
Page 167
must be treated as if it were B. This means that in future cases the existence or
non-existence of a true analogy is immaterial. In fact, the fiction must be applied
even when a particular case shows no correspondence between A and B. Very ...
must be treated as if it were B. This means that in future cases the existence or
non-existence of a true analogy is immaterial. In fact, the fiction must be applied
even when a particular case shows no correspondence between A and B. Very ...
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Contents
The continental romanistic concept | 3 |
Vaihinger and his followers | 38 |
Denial of the legal fiction | 50 |
Copyright | |
5 other sections not shown
Common terms and phrases
accepted action adopted analogy analysis applied assumptio Bartolus basis bona child Cinus conclusion conclusive presumption condition conservatism contract contradiction contrary to reality court created deemed definition discussion doctrine of fictional dogmatic fiction employ fictions equity example existing expression fact factual false assumption feigned fiction concept fictional fulfilment fictitious formulae ficticiae Gaius glossators historical fictions Hoge Raad Ibid implied term Inst intention interpretation irrebuttable irrebuttable presumption iure iuris ius civile judge judicial fictions jurists Kaser legal consequences legal fiction legal rule legal science legis legislative legislature logical major premise means merely metaphor nasciturus fiction nature norms object particular parties person positive law practical praetor presumption principle quod Recht recognised regarded Roman law Roman-Dutch law rules of law Section sense situation South African statute theoretical fictions theory thought tion truth Ulpian usucapio Vaihinger Vaihinger's veritate veritatem element