International Social Science Journal (Chinese Edition)

No.3, 2024

 

A Study on the Origin and Transformation of the Concept of Fictio Legis

(Abstract)

 

Zhang Chuanxi

 

Fictions at the Roman law meant “falsehood” and there were various examples and related linguistic phenomena of legal fictions. Those legal fictions’ birth were in their own historical context, and they were means of bridging the gaps between legislation and judicature, with their historical and judicial characteristics. English legal practice and jurisprudential schools adopted and advanced Roman conception of fictio legis (legal fiction), and in this context William Blackstone, Jeremy Bentham and Henry Maine had reconstructed the concept. However, its original meaning, namely falsehood, and its historical and judicial features had been kept in the English legal system. The modern theory on legal fiction has been remodeled in Professor L.L. Fuller’s theory and German jurisprudence. In the written law tradition, the original historical and judicial features of legal fiction have been filtered out.