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What is legal fiction and why is it controversial?

I must admit that as we prepare for the intensive course in law and the humanities I find myself struggling with the concept of ‘legal fiction’. LL Fuller describes legal fiction as a statement which is made with a consciousness of its falsity or a false statement recognised as having utility. A more basic definition is provided by the OED: ‘an assertion that is accepted as true for legal purposes, even though it may be untrue’.  I find it somewhat difficult to understand why the use of such fictions is regarded as controversial. It is especially hard to grasp the reason for Bentham’s demonstrable contempt for them as ‘a syphilis’ positioning the legal system with ‘rottonness’.

In an attempt to understand how fictions can be regarded as such I considered the purpose of law.  In ‘The Inner Morality of Law’, Fuller explains the notion of law as a means of achieving social order by subjecting humans to the governance of rules. This description does not require a connection between law and reality; legal fiction is simply an expedient means of fulfilling the function of a legal system.  As Vaihinger notes, jurisprudence is ‘not a science of objective reality but a science of arbitrary human regulations.’  So there is a sense in which the law is a set of rules necessary for creating social order in which the terms of the legal system do not need to accord with reality but merely be accepted by its citizens.  The system may be conceived as self-contained: it it takes existing terms of language, divorces it from its everyday meaning and appropriates it for its own purposes. As Posner reflects on the legal fiction that a chimpanzee is a person, there is no pretence that this means a person as the term is used in ordinary parlance.  Rather, ‘person’ is to be employed more figuratively as a means by which to ensure that the law has the authority to remedy a perceived wrong.

It then came to mind the notion of precrime contained in The Minority Report: individuals are charged for murder despite the fact that they were stopped before committing the act through the invention of technology that enabled the prediction of inevitable acts.  This appears to me to be be a legal fiction: stating that someone has committed murder despite the individual never in reality committing the act. This seems to be unjust as it does not reflect the social reality. Alternatively, the employment of the fiction allows the legal system to achieve social order by subjecting its citizens to its rules.

I am very much looking forward to tomorrow when hopefully the notion and controversy of the legal fiction will become clear.

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One thought on “What is legal fiction and why is it controversial?

  1. hl288 says:

    This is an interesting link between the legal fiction and the precrime predictions as shown in the minority report. Perhaps the link is where the choice element comes in to the equation – the minority reports themselves make the crime which has been predicted the legal fiction. Or perhaps the legal fiction element is found on a deeper level in the apparent certainty of the law?
    Where the link lies in this regard may have closer ties to the idea that law is a kind of ‘knowledge’ or ‘truth’ rather than a construct of personal opinion. Surely we can think to many examples where what once was a ‘truth’ was shown to be fictional because of a shift in societal norms – this is evident in civil rights movements from women’s rights activism throughout history.

    In my opinion, a strong link between the ideas of the minority report and legal fictions comes from what the two fail to do. Both ideas reject outside perspectives in favour of stock stories which create ideas of right and wrong, true and false. Legal fictions prevent an in depth analysis of further possibilities which may prevent the humanitarian element of law from coming through in favour of scientific truth. The minority report does this similarly but in a very extreme way; it presents the idea that there could even possibly be any notion of an alternative future and invited the viewer to question this.

    On the one hand we question whether law could ever account for all of the non-stock stories as it were; surely this is inevitable in a world where commonalities are found in our surroundings and legitimised through the repetition of those norms? On the other hand we have to ask what we lose when the freedom of choice is taken away? Not just in committing a crime but also in the judgement of one, we need to question whether the most ethical thing would be to allow the continuation of stock stories, or whether removing the humanitarian aspect of law is fundamentally dangerous to the rule of law and jurisprudence as we know is today.

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