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Simon Stern is Associate Professor in the Faculty of Law and the Department of English, University of Toronto. William Twining is Emeritus Quain Professor of Jurisprudence at the Department of Laws, University College London. Part I Theories of Fiction, Fictions of Theory Chapter 1 On the Theory of Juridic Fictions. With Special Consideration of Vaihinger’s Philosophy of the As-If Hans Kelsen (Translated by Christoph Kletzer) Abstract This is a translation into English of Kelsen, Hans. 1919. Zur Theorie der Juristischen Fiktonen: Mit besonders Berücksichtigung von Vaihingers Philosophie des Als Ob, Annalen der Philosophie 1: 630–658.

23 However, even though it is quite correct to insist on a distinction between the fictio and praesumptio, the fictio is not accurately captured here. e. 23 Ibid 258. 1 On the Theory of Juridic Fictions 11 the natural father, the progenitor of a child which has been conceived in an adulterous relation. The law does not make any such claim; it does not assume a matter of fact, even though the opposite is certain. Rather it only regulates for certain reasons and to certain ends, that under certain circumstances the husband has the same duties and rights in relation to a child which was conceived by his wife in an adulterous relation and that this child has the same duties and rights in relation to this husband as they exist between the husband and his own children which were conceived in wedlock.

However, in the categories, just as in all true fictions, the human intellect aims to comprehend actuality or some other object. e. an actuality is supposed to be created. Of course, there is a deep connection between the intellect which orders the world by employing categories and which thus creates the world as ordered unity, on the hand, and the law that regulates and thus creates the legal world, on the other. e. of the law as an object of cognition). Such a contradiction could only be found in a statement about what is (and if one 22 Ibid 46 ff.

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