oa Comparative and International Law Journal of Southern Africa - The application of foreign law: science and fictions (2372BK)



Fictions are a useful and sometimes necessary instrument in juristic technique..This recourse to fictions admits of a certain danger: far from facilitating the understanding of the problems which are peculiar to the application of foreign law, these fictions result in obscuring them. Formulas like the rinvio ricettizio or the characterization of foreign law as a factual element of the proceedings turn the attention away from the real factors governing the procedural status of foreign law and take their place. In fact, by dint of repeating such a formula one ends up by forgetting its fictitious nature; from then onwards the formula, according to the critical remarks of Paillet, has the appearance of an axiom which needs no other proof than its own obviousness.


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