From The Legal Fiction To Political Fiction

This thesis is composed of four parts.The first part is the introduction (including the preface and chapter one).The preface gives a brief introduction on the research methods and put forward the fundamental proposition which is developed and extended in chapter one.The superstition to the science, which is brought to the humanities by the scientism itself, makes people believe that the decisive power of the political behavior is the fact. Consequently the faith and the human mentalities are ignored in the political activities. From the point of view of the pure science, the law is the art rather than the accurate science. The science is based on the fact. Only as a kind of instrument for cognition, the presumption and the hypothesis are significant. The makeup has no ultimate significance, however, the art do. The fictitious beauty doesn't need to be condemned or exposed. The law is a kind of art, which is not a figure of speech but a simple description from another point.The research of this paper reveals that in the different fields of cognition and practice, the status of the fact is different. The fact and the truth are no doubt important in politics, but the makeup is also important. Because the political conclusion itself is not based on the fact or the truth sometimes, and the makeup can also form the proper judgment. It is the propriety not the correctness that the political cognition pursues. These fabrications are significant not only as the cognition experiments. Indeed, they have practical significances and ultimate values, which can help people not only to make proper judgments but also to take essential actions.The fiction is the makeup which cannot be repudiated. There full of the fictions of the law and political phenomena which are regarded as the main research objects of the law. To form the system and the order, the fictitious facts and relations fabricated when the facts is absent or incapable to ensure cannot be refuted or repudiated, even if the genuine facts appear or are proved, for the fiction is not based on the fact. It is the need of the reality and the consideration from the value that is its real foundation.The second part dissertates the concepts (consisting of chapter two, chapter three, chapter four and chapter five).This part emphasizes on the political property of the legal fiction, and stresses that fiction is a kind of political behavior and decisive fabrication.Chapter two shows the political property of the legal fiction by researching and explaining the concept put forward by Maine.Chapter three clarifies the concept of the legal fiction and indicates its foundation and value of existence, which includes the clarification from the value assessment and the one from the concept analysis.The fiction is a presumption or assumption which cannot be refuted from the law, a presumption which cannot be repudiated, a well-intentioned mistake, a legal assumption and a surreal untruth.The legal fiction can help people not only to make proper judgments but also to take essential actions.Chapter four further brings the political property of the legal fiction to light by comparing the presumption and the fiction.The presumption permits to be refuted and repudiated on the basis of the fact, however, the fiction is ultimate though it does not accord with the logic or the fact possibly.In chapter five, the fiction is classified to be the presumption one and the assumption one. The political property of the legal fiction obtains further demonstration.The third part is the argumentation about the politics (including chapter six and seven).This part introduces the concept of the legal fiction to the field of the politics and put forward the concept of the political fiction.Chapter six is about the theory analysis, which expounds the necessity and the reality of the legal fiction's entrance into the political field starting from the difficult problems of the political conception and norm.Chapter seven is about the system analysis. By analyz...