"Le parole e le cose". appunti sulle finzioni nel diritto

Law teems with myths, metaphors and symbols. The legislator, the judge and - even more - scholarship make use of them. They often resort to them unconsciously, almost as if obeying a conditioned reflex and paying tribute to the 'legal tradition' in which they were trained. Other times they make use of them deliberately, in order to conceal the interests pursued or to pave the way for new dogmas. Working together with such devices is legal fiction, some legal systems (Roman and English) are quite familiar with and of which those working in the field of law still today seem unable to do without. However, when these expedients become the object of study it is easy to find confusion in the use of the terminology regarding them, at times owing to the difficulty of distinguishing one from the next or to the close relation between them. The work gives an account of the nexus existing between such particular figures of legal thought and praxis and it concentrates especially on fiction as paradigm of the artificial nature of law and of its irrevocable historicity. The basic thesis of the work, which unfolds by making evident the reasons why law still makes use of such devices, holds that fiction is none other than a confirmation of the indissoluble link between legal phenomenon and social reality since the autonomy that law professes is impossible to be conceived in terms of 'purity', i.e. as self-sufficiency with respect to the underlying material relations. It then becomes the task of the jurist to unmask the use of fictitious stratagems - and the needs that give life to them - if anything seeking the limits beyond which their utilization becomes intolerable