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3254.More information
What is the connection between the law of a society at a given moment and its social and political history? Are they the same, or do they present significant distinctions? While acknowledging the link between the two, this article underlines their different nature: social and political history has a goal of objectivity, whereas the law is based upon a purely intellectual construction. Because of this, elements of the law often differ from historical data. A case in point is the notion of legal fiction, a proposition recognized by law as the truth, even though its does not conform to the factual situation. After reviewing the role of fictions in law, this article examines the main fictions of English constitutional law, because this is where the gap between law and history is most pronounced. Can this gap be reduced, even to the point it no longer exists? The question is answered by examining the power of judges to modify existing law, more particularly the common law which is of judicial origins. We see that this power is not absolute: judges cannot modify fictions when they also constitute fundamental principles of the existing legal order. The writer concludes that even the authority of legislators in this matter is not without limit.
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3257.
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3259.