Il potere creativo del diritto. La finzione dell’impossibile nel pensiero di Andrea Alciato

This paper analyzes Andrea Alciato’s contribution to the theory of legal fiction (fictio iuris). Alciato marked a critical turning point by asserting that law holds the creative power to feign the impossible, a stance previously rejected by medieval jurists like Bartolus of Sassoferrato, who demanded adherence to natural possibility (“ars imitatur naturam”). Alciato’s innovation rests on the principle that impossible fictions, when justified by equity or public utility, do not fundamentally overturn natural reality but instead operate parallel to the truth. This allows the truth and the fiction to coexist without direct conflict, as demonstrated by the possibility of punishing two individuals for a single, dual lethal wound (“dying twice”). This perspective highlights the autonomy and methodological audacity of law, echoing the freedom found in Roman legal experience and anticipating modern doctrines.