The issue of dissimilar classification in the legal fiction spectrum

As you explore legal fictions, you find that it is usual for modern academics to break the concept down into multiple categories. This is often to siphon off the chaf, and enable the academic to focus on the parts of the spectrum that are relevant to his or her argument, or to simplify a highly complex and convoluted area of the law. Oliver for example breaks the spectrum into four sections; legislative fictions, and judicial fictions between arguing that legislative fictions were abhorrent whilst judicial fictions serve a good purpose.

Perhaps the most important distinction however is Franks. Frank separates legal fictions into; legal lies (misrepresentations of law that have the intention to mislead), legitimate legal fictions (untruths that make it clear to everyone that they are fictitious), and legal myths (legal mistakes that result from ignorance or delusion). Frank postulates that the only form of legal fiction that is worth studying is the legitimate legal fiction, and that his other two categories contain doctrines that should be discarded out of hand as they obviously have no place in law. In declaring that there are parts of the spectrum that are evidently wrong, Frank dismisses the careful academic work of numerous past academics who trawled carefully through all corners of the legal fiction sphere. He also however pointedly subverts Bentham’s conclusions on the subject, which led in great part to the law reforms of the 19th century. Frank believes that if Bentham had discarded legal lies and legal myths he might have come to a very different conclusion as to the nature and potential benefits of legal fictions asa whole.

The interesting part of this for me, is the issue it throws up, namely the need for consistency in the study of legal doctrines. It is clear from the writings of Frank, Fuller and Bentham that they all take vastly different approaches to the same subject, and the same body of legal rules. These differences of approach lead to different conclusions and therefore to different beliefs regarding the future of legal fictions. It would surely be better for all academics to at least acknowledge a central system of categorisation, even if they then take a different approach later in their papers. Otherwise we will continue to face academics like Franks who area able to casually dismiss seminal bodies of work without any detailed explanation, before forwarding there argument.


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