| Although law and jurisprudence are full of various fictions,legal fictions have not been specially and comprehensively sorted out.People talk about legal fictions at least in three aspects: first,methodological fictions,which mainly include specific fictional methods or techniques used by legislators and judges,exist in legal practice.The second is epistemological fictions,as a thinking structure serving cognition,exist in legal science.The third is the ontological fiction,that is,from the angle of fiction to consider the legal research object--the existence of law and the rule of law.Traditional legal fictions include micro legislative fictions and judicial fictions,which can be collectively called methodological fictions:1.Micro legislative fiction is a specific legislative expression technology,which is usually marked by "deem".A fictitious clause is a "hidden reference or limitation" to a base clause.There are three reasons for this form of expression: an effort to maintain the appearance of consistency;To make decisions in uncertain situations;Avoid tedious repetition,the pursuit of concise and economy.2.Judicial fiction of the common law is a device by which the judge "suspend" the constituent elements of the facts in the specific case,then directly lets the relevant legal consequences come.Legal historians believe that fiction is a tool for judges to coordinate the development of law and society.It bottles the new facts of life into the old legal rules,and that only makes sense in certain historical periods.However,history has not abandoned fiction,the exploratory nature of fiction is exactly the spirit of the common law.The debate on the abolition of legislative fictions and judicial fictions has caused the author to rethink the nature of legal fictions.As a tool and a method,it must of course be chosen according to the end,but if fiction is the property of the existence of things,then it cannot be chosen arbitrarily.Fictions of jurisprudence include the fiction of legal paradigm and the epistemological fiction expounded by Kelson:1.Legal paradigm is the cornerstone of a system of legal theories,such as social contract,national spirit,natural human rights,basic norms,etc.They are a kind of fictions(especially "personificatory fictions" and "neglective fictions").Paradigm revolution can be explained by the revisability of fiction.Kelson's basic norm is an example of the fiction of legal paradigm,the basic norm has undergone a change from "presupposition(or hypothesis)" to "fiction".2.Kelson's epistemological fiction originated from Vaihinger's philosophy of as-if,especially the latter's scientific fictions,and to some extent,Kelson ignored the importance of practical fictions.In the early stage,Kelsen insisted on scientific epistemology and took norm as the only legal fact,criticized Vaihinger for confusing legal fictions with scientific fictions,and excluded legislative fictions,judicial fictions,ethical fictions,and law's fictions from legal fictions in a strict sense.However,after Kelsen accepted Merkl's theory of "double-headedness of the legal act",his strict fiction viewpoint could no longer be justified.The process of fiction includes both cognitive and creative factors,which leads to the ontological fiction of law as institutional fact.The study of legal fictions need not be limited to the traditional micro legislative fictions and judicial fictions,and need not only start from the epistemological perspective like Kelson.The interpretation of ontological fiction is based on Bentham's theory of fiction,Kaufman's "analogy of existence",fictionalism(especially moral fictionalism),institutional jurisprudence and John Searle's theory of institutional fact.1.In his Ontological Theory,Bentham considered fiction to be an entity whose existence is conferred by the grammatical form of the discourse about which it is spoken,but which is not a reality or a real existence.The names of fictitious entity are empty symbols that can only be understood by reverting to reality,as is the case with legal concepts such as "duty".Bentham was a nominalist who tended to analyze the concept of law with the "external point of view".I think the concept of law was not just an empty symbol,from the internal point of view,they are a real state,a social fact or an institutional fact.2.Kaufman thought that fiction is nothing but analogy after all.He briefly reviewed the history of the theory of "analogy of existence",and thought that the traditional theory of "analogy of existence" just survived in Vaihinger's philosophy.In the process of the legal realization of legal idea--legal norm--legal judgment,the analogy of existence and the analogy of cognition are interwoven."Analogy of existence" is the theory of relational ontology,which holds that law is the correspondence between ought and is.In short,law,as the correspondence between the ought and is,is the correspondence between norm and fact,and is the birth of institutional fact.3.Moral fictionalism is based on the theory of moral fallacy.The latter holds that moral fact is a kind of "queer entity",which does not exist in reality,and therefore moral judgments,propositions and other moral discourses are all "fallacies".How to deal with these fallacies? Moral fictionalism argues that they need to be pretended to be true because they are "useful fictions"(Vaihinger and Fuller also define "fiction" in this way).Actually,the "queer fact" is not queer.If we change the view of a single fact,we will find that the "queer fact" is institutional fact.But it must be admitted that the institutional fact is both factual and fictitious,and it is a kind of fictitious fact.We can learn from the standpoint of fictionalism to treat the discourse of law and rule of law,that is,to distinguish between critical context and daily context.4.Finally,the legal fictions as institutional facts are clarified with the help of Searle and institutional jurisprudence.Legal fictions are legal facts,and legal facts have the following fiction's structure: in legal rules(R),natural facts(X)are count as legal facts(Y),that is,the "legalization" of natural facts.This fiction's structure creates the legal world including legal subject,legal object,legal act and event,etc.In the process of creating the legal world,the community's fictitious attitude is very important for the formation of institutional facts or legal world.Based on various definitions of fiction,such as "regard different as the same","regard non-existence as being","regard change as changeless ","regard false as true",etc.,and on the basis of Searle's formative rule "X counts as Y",I summed up the thinking formula of fiction "regard X as Y".The process of fictitious thinking is not only a rational process of cognition,but also a creative process of will.The result of fictitious thinking Y is legal fact.Therefore,the author defines legal fictionalization as a legal fact constructed by thinking X as Y.Fiction is opposite to reality,but instead of reality,and has the characteristics of construction,self-reference,objectivity,determination,utility,exploration,etc.Fiction has some similarities and differences with presumption,lie,metaphor,etc.Fiction is not pure fiction,it has a aspect of fact.Fiction is not a lie.Ontological fiction can bring new enlightenment to the theory of rule of law.The concept of rule of law is stuck in the disputes between form and substance,thin and thick,universal and national.In view of this,some put forward that the rule of law is a "essentially contested concept",but this concept can not be self-sufficiency,and may fall into the danger of relativism,which will have a bad rhetorical effect on the current construction of the rule of law.And it does not directly answer the problem of the rule of law--how the rule of law is possible,the myth or lie of the rule of law and other deconstruction discourse is still emerging in an endless stream.The rule of law is a life order defined by law,and an ideal state of governance achieved by legal norms,so it is a kind of institutional fact.As a fictitious concept,the rule of law is different from "myth" and "lie".It does not intend to deceive.It has both aspects of falsity and fact,which need to be revealed but more important to construct.It is of great value to human life and civilization.The principles of the rule of law are also fiction.Anti-basic jurisprudence,like Jurisprudence of free,sociology of law,realism jurisprudence,critical jurisprudence,postmodern jurisprudence and so on,with scientific attitude of seeking truth,constantly uncover the falsity of the principles of the rule of law,negate legal autonomy,preach the impossibility of the rule of law.Anti-basic jurisprudence helps to see clearly the fictitious nature of discourse of law and the rule of law,but they do not realize the value of fiction.In a sense,the law and the rule of law originally are fiction.Specifically,1.it is difficult to separate the rules from the generality,and the establishment of the general behavior pattern depends on artificial classification,abstract fictions and schematic fictions.2.The open structure of words is unavoidable,so the heaven of concept,which conforms to the principle of absolute clarity,is a utopian fiction,but utopia contains a power to transform reality into it.3.The legal system is the product of fiction or construction,and the consistent system without contradiction,conflict and loophole is a kind of "practical necessary setting",judges must declare,advocate and even believe it,in order to maintain the authority of the law.4.It is unrealistic for a static society to be controlled by an immutable code of law,but it is important to achieve change under the principle of stability.5.The publication of law is a fictitious state,and the publication of law is a institutional fact.The principle of openness requires the state to meet the basic requirements of the form of publication.6.There are many difficulties in keeping official behavior consistent with law,but the principle of consistency cannot be abandoned.As a "useful fiction",the principle of consistency can limit the power and maintain the authority of law.Facing the challenge of the impossibility of the rule of law,perhaps we can learn from the attitude of "moral fictionalism" to treat the discourse of the rule of law,distinguish critical context and daily context,acknowledge the fiction of the rule of law in the critical context,and adhere to the practice of the rule of law in the daily context,maybe it can be summarized as "legal fictionalism".The subject fiction under the rule of law is very important in the process of realizing the rule of law in national governance.Legal subject is one of the elements of the rule of law.On the basis of Grey's view that subject fiction is "attribution of will " and Kelson's view that subject fiction is "personification of norms ",I put forward the subject fiction is "institutional fact",that is,the legalization of the subject.The issue of subject setting is of great importance in the transition of national governance from the dominant management mode to the rule of law governance mode.Management thinking leads to the inequality of subject,and the equality of governing subject derives from fiction.The equality and co-governance of the subject depends on the fiction of social contract.In the process of realizing the rule of law in national governance,it is necessary to complete the reconstruction between the official and the people,regard the actual relationship between the official and the people as abstract legal relationship,and resolve the contradictions between them by method of the rule of law. |
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