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A law in Utah simply provides that a person may not deposit a dead animal upon the land of another person without the landowner's consent. It has been a frequent observation, made as one might expect in the most negative terms by Bentham, that resort to fiction amounts to a form of legislation, in which variation of fact can be used to alter the incidence of a pre-existing rule: A fiction of law may be defined as a willful falsehood, having for its object the stealing of legislative power, by and for hands which durst not, or could not, openly claim it; and, but for the delusion thus produced, could not exercise it. {n12} Whether offered in Bentham's terms or in a more neutral form, in which the courts are said to be filling the "interstices" of the legislative scheme, {n13} the idea expresses a presupposition that the archetypal form of law making is (and in Bentham's view, ought emphatically to be) legislation--that is, the prospective declaration of abstract "rules" for the resolution of disputes by a body, called a legislature, politically charged with that responsibility.

Pages: 44

Publisher: Gale, U.S. Supreme Court Records (October 28, 2011)

ISBN: 127045062X

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