Open AccessLEGAL SYMBOL AND LEGAL FICTION: PROBLEMS OF DEMARCATION
Author(s) -
Olesya Zatsepina
Publication year - 2020
Publication title -
rossijsko-aziatskij pravovoj žurnal
Language(s) - English
Resource type - Journals
ISSN - 2687-010X
DOI - 10.14258/ralj(2019)4.3
Subject(s) - legal realism , legal formalism , legislator , law , legal research , symbol (formal) , empirical legal studies , precept , legal fiction , legal opinion , legal profession , legal history , political science , philosophy , linguistics , black letter law , comparative law , private law , legislation
The article considers the legal symbol and legal fiction as special legal categories. The correctness of anarrow approach to their essence was established according to which the notion of «legal fiction» does notinclude fictitious phenomena, and the notion of «legal symbol» does not cover symbols prohibited by law,and symbols which represent certain values. It was revealed that both considered categories have a certaindegree of conventionality, in a specific way according to the scheme established by the legislator, thereforethey are sometimes mixed in the literature. Legal symbols, unlike legal fictions, are more fundamental, buthave an auxiliary character, since they reflect an existing legal precept, and are not part of a new legal norm,contain an encrypted meaning, but do not distort the legal reality.Legal symbols and legal fictions play a very important role in legal regulation, since they optimize it andmake it more quality, and also provide legal and linguistic economy.