Legal fictions and legal change

Abstract

This paper offers a definition of legal fictions and an evaluation of the role of legal fictions in legal practice, especially insofar as they enable legal change. The first part of the paper defines legal fictions as any suspension of one or more of the required operative facts leading to the imposition of an associated normative consequence, whether this suspension is introduced because of (1) the absence of proof of some previously required fact; or (2) the presence of proof to the contrary. The second part argues that legal fictions have an unjustifiably bad reputation as enablers of legal change. This paper makes a plea for seeing legal fictions as forms of tentative cognition that enable courts to communicate with each other, exploring whether a certain change in the law (i.e. precisely a suspension of a required operative fact in the imposition of a certain normative consequence) ought to be introduced at a more explicit level. Under the guise of this relational reading of legal reasoning, legal fictions become an instrument of careful experimentation – a way of testing the extent to which the potential introduction of a rule will be beneficial. Seen in this light, legal fictions are by no means signs of the immaturity of the system; they are, instead, dynamic resources that allow courts, over time, to balance flexibility and responsiveness with stability and predictability.

Legal fictions and the limits of legal language

“…A good example of scholarship during the earlier period is Kenneth Campbell's philosophically informed 1983 examination of Fuller's essays (Campbell, 1983). Campbell acknowledges that Fuller saw legal fictions as intimately related to the legal recognition of ‘facts’ – also a matter of legal language usage (p. 359) 7 – but explicitly disavows any desire to examine ‘lawyers’ linguistic practices' (p. 341; see also Del Mar, 2013). Although he does characterise the legal fiction as a type of language usage, Campbell is concerned only with the philosophical implications of this insight 8 .…”

“…24It is true as well of legal and, more specifically, judicial common-law communities of discourse over time, as Maksymilian Del Mar explains in his contribution to this Special Issue (Del Mar, 2013). …”

“…32A complementary explanation for this ambivalence is suggested by the other contributions to this Special Issue. Some justices might well regard fictions, more or less consciously, as devices for communicating with future judges in situations where proof seems unusually, but systemically, difficult or where the reconciliation of existing norms with the apparent requirements of justice in a particular case suggests a need for modification of the rules (Del Mar, 2013; Gordon, 2013). Justices might also, perhaps at the same time, perceive concepts or statements they label ‘fictions’ as serving the power-consolidating, ‘investigation-stymieing’ purposes Bentham criticised (Quinn, 2013).…”

“…2Many commentators thus, explicitly or implicitly, focus on the propositional content of such statements, rather than on their status and features as statements (e.g. Campbell, 1983; Del Mar, 2013). One exception is Louise Harmon, who recognised that ‘Fuller was the first writer on the subject to treat the legal fiction as a linguistic phenomenon’ (Harmon, 1990, p. 14; see also Soifer, 1986, p. 915).…”

Fuller on legal fictions: a Benthamic perspective

“…8For a sophisticated defence of legal fictions of this second type, over a much more extended timescale than Bentham might allow, but founded on the utilitarian benefits of flexibility and adaptability which he would recognise, see Maks Del Mar's article in this Special Issue (Del Mar, 2013). …”