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.