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This paper examines the pervasive yet often overlooked role of legal fictions in shaping the European Union's legal framework. It focuses on the concept of space, exploring three key fictions: lex rei sitae, habitual residence, and non-entry. Lex rei sitae, a fiction that simplifies property disputes by anchoring contracts to the location of the property, gains new layers of meaning through the CJEU case-law. Habitual residence, while intentionally flexible, defines jurisdiction for various legal matters. The controversial „non-entry” fiction allows member states to deny legal entry to migrants despite their physical presence. By analysing these fictions, the paper sheds light on how the EU constructs and defines space within its legal system. This analysis paves the way for further research on legal fictions within EU law.

This essay argues that the New Laws of 1542 responded both legislatively and narratively to contemporary suspicions that Spanish rule in America constituted a tyranny, which, if true, would invalidate Charles V's exclusive rights of sovereignty and property on the continent. To affirm the legitimacy of Charles's authority, the New Laws showed him exercising good governance: reforming the corrupt Consejo de Indias, expanding the duties of the lackadaisical Audiencias, restricting the privileges of abusive encomenderos, and mandating the good treatment of his Amerindian vassals. The changes that the New Laws prescribe for the councilors', oidores', and encomenderos' behavior tell the story of a righteous monarch defending the public good against the incursions of greedy and faithless subordinates, suggesting that they—not he—are the true authors of tyranny in Spanish America. [ABSTRACT FROM AUTHOR]

This paper examines the pervasive yet often overlooked role of legal fictions in shaping the European Union's legal framework. It focuses on the concept of space, exploring three key fictions: lex rei sitae, habitual residence, and non-entry. Lex rei sitae, a fiction that simplifies property disputes by anchoring contracts to the location of the property, gains new layers of meaning through the case-law of the Court of Justice of the European Union (CJEU). Habitual residence, while intentionally flexible, defines jurisdiction for various legal matters. The controversial "non-entry" fiction allows member states to deny legal entry to migrants despite their physical presence. By analysing these fictions, the paper sheds light on how the EU constructs and defines space within its legal system. This analysis paves the way for further research on legal fictions within EU law. [ABSTRACT FROM AUTHOR]

Copyright of Süleyman Demirel Law Review / Süleyman Demirel Üniversitesi Hukuk Fakültesi Dergisi is the property of Suleyman Demirel Universitesi Hukuk Fakultesi Dergisi and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

Copyright of Legal Research Quarterly is the property of Shahid Beheshti University and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

Based on the general rules of contracts, contractual obligations create based on the intention and will of the parties and the content of the agreement; However, in some cases, the legislator does not observe this rule and he assumes that there is a contractual relationship between the parties, contrary to the real will of the parties; and he replaces the real nature with a contractual nature, and he imposes the effects of the second nature on the first. The present study aims to explain the nature and extent of this practical procedure of the legislator. Based on this, the authors have examined the examples of legal relations witch the legislator assumed as another contract, so that by using the descriptive-analytical method, authers could get a rule to identify them in the legal system of Iran and England. In English law, examples of this presumption are similar to collateral contract, good faith and legal fiction. On the other hand, its examples in the law of Iran should be considered such as apparent representation, coercive suretyship, etc. The comparison of the mentioned institutions can lead to providing a clear Criterion of this practical rule of the legislator. Finally, it was concluded that the examples of domestic‌ law are consistent with the structure of Usool-based Hokumat rule, and on the other hand, despite the similarities of this concept with the collateral contract and the good faith in English law, their nature should be considered different. But although the legal fiction is generally used in the field of non-contractual relations and it is less used in the contractual field in the English legal system (both in the legal literature and in practice); it is similar to Hokmi contract, and the logical relationship between the two can be described as “absolute general and specific”;

The article presents the ways customary law could be gradually changed in the ancient Near East. They included working with existing institutions while modifying their consequences as well as their scope of application with tools such as legal fiction. However, the conservative nature of the ancient oriental culture, as well as that of the scribal education made any sudden, radical modification impossible, and even if a new contract type was created, it would keep the pretense of following a long-established practice.

The subject. The article is devoted to the study of the trinity of properties of constitutional principles.The purpose of the article is to confirm the hypothesis that constitutional principles, often perceived by researchers and law enforcement officials as abstract norms with declarative content, are in fact full-fledged legal institutions that are endowed with all the necessary properties to achieve constitutional goals. In this regard, the article analyzes the property of axiomaticity, the property of presumptivity and the property of fictitiousness of constitutional principles.The methodology. The systemic-structural, comparative, formal-legal and formal-logical methods made it possible to identify and characterize the properties of constitutional principles, such as axiomaticity, presumptivity and fictitiousness. The use of these methods in their combination predetermined the appeal not only to topical problems of constitutional law, but also to issues of the theory of law, as well as other branches of law, which made it possible to most objectively and comprehensively approach the study of the properties of constitutional principles.The main results of the research. The trinity of the properties of the constitutional principle lies in the fact that the constitutional principle formulates the basic rule and determines the direction of development of the legal system and thereby has the property of axiomaticity. At the same time, the constitutional principle has the property of presumptivity due to the duty of the law enforcement officer to proceed from the assumption of compliance with the provisions of such a principle by all subjects of legal relations. Thereby constitutional principle ensures the necessary stability of the legal system of the state. At the same time, in order to achieve full-fledged stability of the legal system, along with the assumption that the subjects of legal relations comply with the provisions of the constitutional principles, it should be possible to monitor such compliance. In the absence of prior control over compliance with the provisions of the law, the solution is the application of legal presumptions. In this regard, within the framework of the presumptive property of constitutional principles, constitutional presumptions are inextricably linked with the corresponding constitutional principles. In turn, having the property of fictitiousness, the constitutional principle allows to interpret the provisions that make up such a constitutional principle and, as a result, create the necessary regulatory legal framework.Conclusions. Constitutional principles are the driving force of the legal system. They fill all legal relations without exception with legal meaning and content and have a special meaning due to their irreplaceability and the obligation to strictly observe them. In turn, the trinity of properties of the constitutional principles reflects their legal essence as fundamental normative provisions that determine the generally binding basic rules and directions of the development of the legal system, ensure the stability of the legal system of the state, and also have the possibility of timely development and adaptation to the changing legal reality.

This text is a critic of the formalism and historicism of the American legal thought in the beginning of the Twentieth century. The term « law in books » refers to the written statutes, and Pound considered that these written statutes was often too harsh, too inadequate and sometimes outdated. The term « law in action » refers to how the courts tend to interpret and apply these written statutes. Due to inadequacy of the written law, these judicial interpretations may be very different as the law in the books. Pound saws three main reasons of divergencesa withdrawn way of thinking about law, and preference given to legal justice in place of social justice ; an overly rigid and individualist legislation ; an complex and expensive and slow-moving administrative machinery. In conclusion, Pound proposed possible ways of improving the legal system : lawyers had to look the changes in the face and the jurisprudence had to open itself to others sciences. Legal thought must be renovated according to the reality of human conduct to reduce divergences between law in books and law in action.

In the evolution of human civilization and law, the institution of the legal person has found a well-deserved place, having today, unlike its past history, a precise outline and legal complexity. The legal person is a complex legal organism that has evolved along the science of law because it has registered the changes necessary for its survival, being obviously a useful fiction in the legal relations between individuals and, in the same time, a form of expression of the rights recognized to them. [ABSTRACT FROM AUTHOR]

The article discusses the issues of historical validity of creating a collective subject of law in the form of a legal entity construction. The dual nature of a legal entity as a legal fiction and as a subject of legal relations is shown, which also determines the specificity of the liability of a legal entity and the grounds for its occurrence. This is especially true for such a reason as the presence of guilt, because by virtue of the artificial nature of the legal structure of a legal entity, the rules for determining its guilt differ from the rules applicable to an individual. The risks of ineffective punishment of individuals hiding behind the "screen" of an artificial subject of law are analyzed; use of a legal entity as an instrument for committing unlawful acts by individuals. A comparison is made of the features of holding a legal entity liable for committing acts in civil and public law spheres, as well as measures of this responsibility. The ideas on the possibility of a criminal procedure investigation of offenses of legal entities are considered, on the categorization of types of administrative responsibility and the amount of administrative fines in relation to legal entities.

The subject. The article studies legal fictions from the point of view of their correlation with ideological sources of law.The purpose of the article is to confirm or disprove hypothesis that legal fictions may be described as one of the ideological sources of law.The methodological basis for the study includes analysis and synthesis, interpretation of legal literature.Results, scope of application. Legal fictions are legal provisions enshrined in the text of regulatory legal acts in the form of separate regulatory regulations. They play an important role in lawmaking and in the mechanism of legal regulation. Fictions perform the function of protecting various interests and the function of procedural economy, contribute to the rapid and correct resolution of the case on the merits, have the necessary impact on the participants of the proceedings.Legal fictions have their own set of features. They are characterized by a) the deliberate falsity of the assumption; b) this assumption is legally irrefutable, the possibility of proving the opposite is excluded; c) the assumption is legal. provided for in regulatory legal acts; d) assumption, which is given the importance of legal facts.The ideological significance of legal fictions as sources of law is manifested in the fact that they are associated with legal norms, in the content of many of them; this is a special kind of legal norm, in the content of which there is a certain fiction; fictions are one of the means of formalization of normative material and simplification of the structure of actual compositions. Legal fictions are widely used in the gaps in the law, are one of the ways to effectively fill them.Legal fictions bring clarity to the legal regulation of public relations, being a necessary part of legal regulation. Fictions participate in legal regulation in two forms (types): through theoretical and practical (normative) constructions. Theoretical fictions, being a part of the legal doctrine, act as independent regulators (for example, constructions of the legal entity, the state, etc.). Legal fictions perform certain functions. They eliminate the uncertainty in the legal regulation; they help to simplify legal relations and make legal regulation stable and stable; they help to translate everyday reality into legal reality; they help to simplify legal relations and make legal regulation stable and stable.Conclusions. Legal fiction can be considered an ideological source of law, if we consider it as a legal fact, its variety. But this characteristic is not prevailing among other significant properties of legal fictions.

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This paper examines the use of a specific international legal fiction. It is claimed that a legal fiction was confirmed by the Tribunal in the South China Sea Arbitration (2016). The paper asks whether this is an effective legal fiction. The paper will argue that this is not so, pointing to the difficulties that the fiction necessarily creates. From this example, lessons may be learned of the phenomenon of legal fictions of international law generally, and, crucially, of their effectiveness. [ABSTRACT FROM AUTHOR]

The article discusses the issues of historical validity of creating a collective subject of law in the form of a legal entity construction. The dual nature of a legal entity as a legal fiction and as a subject of legal relations is shown, which also determines the specificity of the liability of a legal entity and the grounds for its occurrence. This is especially true for such a reason as the presence of guilt, because by virtue of the artificial nature of the legal structure of a legal entity, the rules for determining its guilt differ from the rules applicable to an individual. The risks of ineffective punishment of individuals hiding behind the "screen" of an artificial subject of law are analyzed; use of a legal entity as an instrument for committing unlawful acts by individuals. A comparison is made of the features of holding a legal entity liable for committing acts in civil and public law spheres, as well as measures of this responsibility. The ideas on the possibility of a criminal procedure investigation of offenses of legal entities are considered, on the categorization of types of administrative responsibility and the amount of administrative fines in relation to legal entities.

The recent atonement literature reveals a growing trend accepting the thesis that the Reformer's doctrine just is the biblical doctrine of penal substitution. This is the claim of William Lane Craig in his recent works on the atonement. In the present article, we challenge these set of claims in Craig's recent works and advance an alternative theory of the atonement that has some significant footing in the Reformed theological tradition, most notably reflected in the theologian, William Ames. Finally, we lay out several reasons why Craig's doctrine of the atonement fails to capture the biblical data on the atonement and fails to avoid the legal fiction problem parasitic on most, if not all, accounts of penal substitution. [ABSTRACT FROM AUTHOR]

Definitions of death are often referred to as legal fictions since brain death was conceived in the mid-twentieth century. Reference to legal fiction is generally paired with bioethicists' concern that it facilitates post-mortem tissue donation and the health system generally, by determining death earlier on the continuum of dying and availing more viable tissue and therapeutic resources for others. The author argues that spatio-legal theory, drawing from legal geography, can account for the heterogeneity of effects that the fiction has in spatially managing bodies (e.g., physicians, patient, family) at the bedside. The legal fiction is produced in physicians' socio-legal practices, coordinating decision-making according to geographies of scarcity and severable, self-contained live- and dead-bodies. The determination liminally exists between private and public, enacting a sterile, affectless ordering of bodies but administered in the spectacle of sovereign death-making, conveying authority whilst managing patient's and family's consents. Spatialising traces of anatamo-politics and biopolitics thereby congeal and are enacted heterogeneously in and through the legal form of the fiction, securing preferred constructions of the body in the management of mortality. These spatio-legal features of the legal fiction are described from their collision with case law and literature that document competing nomoi produced from or secreted by antinomian bodies. [ABSTRACT FROM AUTHOR]

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Copyright of Reti Medievali is the property of Firenze University Press and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

This article, consisting of four parts, is a philosophical analysis of positive law applied to animals. After putting the law to the test of philosophical astonishment and drawing up an inventory of animal conditions made lawful by law, the author questions the links between the "proper of man" and the rights of animals. These clarifications address the question of who can be a subject of law from a legal point of view. Finally, in the fourth part, the author wonders about the fictional status of the law and shows that the obstacles to confer rights on animals are not technical but ideological. [ABSTRACT FROM AUTHOR]

Dalam sistem pembentukan peraturan perundang-undangan di Indonesia, masih kita temui adanya pemberlakuan teori fiksi hukum.Dimana semua orang dianggap tahu hukum apabila sudah diundangkan dalam lembaran resmi dan ketidaktahuan seseorang atas hukum atau peraturan perundang-undangan yang berlaku tidak membebaskan seseorang itu dari tuntutan hukum (igronantia iuris neminem excusat).Hal ini tentu bertentangan dengan nilai-nilai keadilan yang ada di masyarakat.Diperlukan upaya-upaya untuk mengikis keberlakuan teori fiksi hukum ini.Hal inilah yang menjadi pokok permasalahan dalam tulisan ini.Metode penelitian yang digunakan adalah metode penelitian hukum normatif dan untuk memperoleh data digunakan studi perundang-undangan dan telaah kepustakaan.Dari hasil penelitian memperlihatkan bahwa teori fiksi hukum masih diberlakukan dalam sistem peraturan perundang-undangan di Indonesia. Untuk mengikis keberlakuan teori fiksi hukum dapat dilakukan 2 (dua) upaya baik dari pemerintah maupun dari masyarakat, yaitu publikasi oleh lembaga pembentuk peraturan perundang-undangan dan partisipasi aktif dari masyarakat dalam proses pembentukan peraturan perundang-undangan tersebut. Abstract In Indonesia, we still find an enactment of law fiction theory in the system of legislation formation. Where everyone is regarded to know the law when it is legislated in the official gazette and one`s ignorance on the law or provisions of legislation do not make one free of prosecution (igronantia iuris neminem excusat). It is against the justice values in the society. It is needed effort to erase its enactment, that is the main problem in this research. It uses normative law method. Collecting data by literature and legislation search. The result of this research shows that Indonesia still enact law fiction theory in legislation system. To efface its efficacy can be conducted 2 (two) attempts, both government and society as well, that is publication by lawmaker or legislator and society participation in the establishment of legislation process.

This article aims to deepen the understanding of the Western legal tradition with the instruments of cultural anthropology. Recalling the properties of legal reason, it opens the way for a new relationship between law and anthropology. It also warns against the temptation to extend the domination of this Western reason over other societies and cultures.

This essay asks what legal studies can contribute to the now vigorous debates in economics, sociology, psychology, philosophy, literary studies and anthropology about the nature and sources of hope in personal and social life. What does the law contribute to hope ? Is there anything hopeful about law ? Rather than focus on the ends of law (social justice, economic efficiency, etc.) this essay focuses instead on the means (or techniques of the law). Through a critical engagement with the work of Hans Vaihinger, Morris Cohen and Pierre Schlag on legal fictions and legal technicalities, the essay argues that what is “hopeful” about law is its “As If” quality.

The basic question concerning the compatibility of donation after circulatory death (DCD) protocols with the dead donor rule is whether such protocols can guarantee that the loss of relevant biological functions is truly irreversible. Which functions are the relevant ones? I argue that the answer to this question can be derived neither from a proper understanding of the meaning of the term "death" nor from a proper understanding of the nature of death as a biological phenomenon. The concept of death can be made fully determinate only by stipulation. I propose to focus on the irreversible loss of the capacity for consciousness and the capacity for spontaneous breathing. Having accepted that proposal, the meaning of "irreversibility" need not be twisted in order to claim that DCD protocols can guarantee that the loss of these functions is irreversible. And this guarantee does not mean that reversing that loss is either conceptually impossible or known to be impossible with absolute certainty. [ABSTRACT FROM AUTHOR]

Multiple viewpoints have been expressed regarding the principle nulla poena sine lege (there exists no punishment without a pre-existing penal law). Some scholars advocate the inviolability of this maxim because it safeguards personal freedom—an opportunity to do everything not prohibited by law. However, its critics assert that rigid adherence to the principle nulla poena sine lege may do more harm than good. They argue that the maxim, while prohibiting judges from punishing non-criminal acts, makes it impossible for courts to deter them in a timely manner, which, in certain cases, may have a detrimental effect on society. To determine the correct approach to nulla poena sine lege, the paper considers its history in continental criminal law and then analyses the principle theoretically. The examination reveals that two contradictory interests—the need to safeguard personal freedom and the need to combat lawful, yet socially harmful, acts through judicial punishment—cannot be completely ignored in practice. Therefore, the findings suggest a balancing between these interests and propose a way to achieve this compromise. [ABSTRACT FROM AUTHOR]

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The Administrator of Fact is a little used figure in our country, since it is only regulated, as of the year 2012, in the Tax Code as a mechanism used by the Tax Administration to delimit joint liability in the taxpayers; however, in the case of the contribution to Essalud, the figure of the Administrator of Fact leaves its tax context of joint and several liability to be taken into other fields of national law in order to avoid violation of labor rights; with which it becomes necessary to study and possible incorporation to other branches of law such as the company within the responsibility of administrators, as long as its field of action is defined. Finally, according to the author's experience, the Fact Administrator is for business law, what the precarious holder is for the civil right, in that both require certain acts (administrative or judicial) so that their rights and obligations be recognized. [ABSTRACT FROM AUTHOR]

Copyright of Revue Historique (0035-3264) is the property of Presses Universitaires de France and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)