Legal Fictions

Many judges faced with the task of rendering difficult decisions have a habit of pretending things that they know to be false. In so doing they employ legal fiction. Generally, a legal fiction is a false assumption of fact made by a court as the basis for resolving a legal issue. One of its purposes is to reconcile a specific legal result with an established legal rule. Legal fictions are thought to provide a mechanism for preserving the rule while ensuring a just outcome. By feigning the facts, the rule is said to remain intact. Historically, the fiction has achieved a certain duality. It is thought to be a humiliation to legal reasoning while, at the same time, indispensable to justice.;This study of legal fictions is an attempt to answer plaguing questions in the debate about an old judicial practice. To what extent are legal fictions necessary? What is their proper function? What are the dangers associated with their use? The answer to these questions is gleaned from four separate investigations of the fiction, each taken from a different perspective. The first is an overview of the historical debate that has been generated by the use of legal fictions. It provides an essential distinction between the judicial device known as a legal fiction and other so-called fictions that form the infrastructure of our legal system. The second investigation provides a contemporary account of legal fictions through a critical examination of Fuller\u27s study of them. This investigation reveals certain shortcomings in Fuller\u27s theoretical account. Consequently, in the third investigation, a contemporary case study is provided. The development of a particular legal fiction is traced from its ancient origins in Roman law to its present use in the Canadian courts in an attempt to understand how the fiction actually operates in practice. In the final investigation, a philosophical examination of the background conditions underlying the use of legal fictions illustrates how reasoning through the device of fiction differs from usual methods of judicial reasoning. This is achieved by contemplating nonfiction in the law on Searle\u27s model of institutional facts

Legal Fictions and the Essence of Robots: Thoughts on Essentialism and Pragmatism in the Regulation of Robotics

The purpose of this paper is to offer some critical remarks on the so-called pragmatist approach to the regulation of robotics. To this end, the article mainly reviews the work of Jack Balkin and Joanna Bryson, who have taken up such ap- proach with interestingly similar outcomes. Moreover, special attention will be paid to the discussion concerning the legal fiction of ‘electronic personality’. This will help shed light on the opposition between essentialist and pragmatist methodologies. After a brief introduction (1.), in 2. I introduce the main points of the methodological debate which opposes pragmatism and essentialism in the regulation of robotics and I examine how legal fictions are framed from a pragmatist, functional perspective. Since this approach entails a neat separation of ontological analysis and legal rea- soning, in 3. I discuss whether considerations on robots’ essence are actually put into brackets when the pragmatist approach is endorsed. Finally, in 4. I address the problem of the social valence of legal fictions in order to suggest a possible limit of the pragmatist approach. My conclusion (5.) is that in the specific case of regulating robotics it may be very difficult to separate ontological considerations from legal reasoning—and vice versa—both on an epistemological and social level. This calls for great caution in the recourse to anthropomorphic legal fictions

New Legal Fictions

There was a time when judges routinely deployed legal fictions, which Lon Fuller famously defined as false statements not intended to deceive, in order to temper the disruptive effect of changes in legal doctrine. In an age of positive law, such classic legal fictions are significantly less common. But they have been replaced by new legal fictions. In fashioning legal rules, judges rely with surprising frequency on false, debatable, or untested factual premises. At times, of course, such false premises simply reflect judicial ignorance. But there is an increasingly large body of empirical research available to judges, and more often than not judges\u27 reliance on false premises is not the result of ignorance. Instead, judges often rely on false factual suppositions in the service of other goals. In this article, Professor Smith discusses a broad range of examples of new legal fictions, false factual suppositions that serve as the grounds for judge-made legal rules. The examples, drawn from diverse areas of doctrine, suggest a set of reasons, albeit generally unexpressed, why judges rely on new legal fictions. Sometimes judges rely on new legal fictions to mask the fact that they are making a normative choice. Other times, judges rely on new legal fictions to operationalize legal theories that are not easily put into practice. Still other times, judges deploy new legal fictions to serve functional goals and to promote administrability in adjudication. Finally, new legal fictions often serve a legitimating function, and judges rely on them - even in the face of evidence that they are false - to avoid what they perceive as de-legitimating consequences. Judges rarely acknowledge that their ostensible factual suppositions are in fact new legal fictions, and they rarely articulate the reasons for relying on them. Even assuming one concludes that judges\u27 apparent rationales for relying on them are valid, therefore, there is a serious question whether those rationales outweigh the general interest in judicial candor. After all, a general requirement of judicial candor - which permits the academy and the public to debate, criticize, and defend judges\u27 grounds for decision - is essential to constraining judicial power. To be sure, whether any particular reason for judicial reliance on a new legal fiction is justified turns in part on an empirical judgment about the extent to which the new legal fiction actually achieves the end that the judge deployed it to achieve. But even when we can satisfactorily answer such empirical questions, we are still faced with a normative judgment about the relative desirability of candor and the goal served by dispensing with candor. Professor Smith concludes that the ends served by reliance on new legal fictions usually are not sufficient to overcome the presumption in favor of judicial candor, but that in rare cases dispensing with judicial candor might be justified

From Coke to Maine: The Formation of Concept of “Legal Fiction” at English Law

From Edward Coke to Henry Maine, the discussions on the “legal fiction” gradually rose from the practical level to the intellectual level, and the discussants themselves have changed their positions, from users or makers of legal fictions to pure observers, with different view-points. The nature of a fiction is always falsehood according to its definition, but scholars made different judgments on its role in English legal history. William Blackstone praised legal fictions, but Jeremy Bentham denounced them as tools by which the judges and lawyers stole legislative power. Henry Maine gave his definition of legal fictions and emphasized their historical role

Dangerous or Benign Legal Fictions, Cognitive Biases, and Consent in Contract Law

(Excerpt) Building on existing scholarship on legal fictions and empirical psychological research about human decision making processes, this Article offers a systematic approach to distinguishing a dangerous legal fiction from a benign one. This Article begins by summarizing scholarly discussions about legal fictions in general, courts’ typical uses of legal fiction, and more general concerns with legal fictions. Part II of the Article summarizes scientific findings about how humans think and what our common cognitive biases are. It then explains how findings regarding the human decision-making process may shed light on why certain legal fictions can be dangerous. This Section also discusses how we can overcome cognitive biases and answers the question why awareness of the fictitious nature of a doctrine may make it “safe.” Studies have shown that judges may be reminded of their own decision making process and be able to engage in more critical analyses to ameliorate the concerns regarding legal fictions. Part III offers a systematic approach to distinguishing benign from dangerous legal fictions based on a review of selected legal fictions. This Article suggests that a benign fiction comes with some built-in reminders of its fictional nature while a dangerous fiction does not. A fiction may be benign or dangerous depending on the presence of any or all of the following characteristics: Whether or not the fiction (1) is labeled explicitly as a fiction; (2) rests on complete factual falsity instead of reduction of evidentiary proof; or (3) allows the court to reach a result consistent with well-established legal or other social values. The presence of one or more of these factors creates awareness that the doctrine is a fiction and thus safeguards against uncritical excessive use. Without those reminders, legal fiction can become “dangerous.” Lack of built-in reminders makes it more likely judges may use legal fictions for purposes not intended by the fictitious doctrine. Finally, Part IV uses the consent doctrine in contract law as an example of a dangerous fiction. This Section briefly traces the evolution of the consent doctrine from the early twentieth century and shows how consent in many situations has evolved into a legal fiction due to technological advances, in particular ecommerce. Part V offers an example of how the consent fiction, when uncritically adopted, poses a “danger” to our society and has become a tool to deprive many people of their day in court because of courts’ willingness to enforce arbitration “agreements” based on the fiction

Karla FC Holloway, Legal Fictions: Constituting Race, Composing Literature.

Legal Fictions: Constituting Race, Composing Literature is an intriguing addition to Karla Holloway’s distinguished body of work in African-American Studies. While Holloway’s classic Moorings and Metaphors (1992) demonstrated her firm grasp of an extensive array of critical vocabularies from linguistics to mythography, Legal Fictions focuses more closely on the interconnection of U.S. law, the construction of racial identities, and African-American literature, thereby contributing an approvin..

Legal Fictions: Copyright, Fan Fiction, and a New Common Law

A girl owns a number of Barbie dolls. She makes outfits for them and constructs elaborate scenarios in which they play starring roles. She enacts her dramas in her front yard, where passers-by can easily see. Does she violate the law? What if the girl writes down her stories starring Barbie? What happens when she lets her friends read them? What if she e-mails those stories to a Barbie mailing list? What if she posts those stories and a picture of Barbie in her new outfit on her Web page? Copyright law has long been a concern more for corporations than for ordinary citizens. However, with new technologies that allow individuals to produce and distribute information easily, however, copyright law is becoming increasingly relevant to common activities. Much has been written about the problems created by the easy reproduction of copyrighted documents and by the poor fit between law and technology that makes every person who browses the World Wide Web ( the Web ) a likely lawbreaker. This Article goes beyond the debate over pure copying to analyze the implications of creative work-now widely accessible via the Internet-that draw on copyrighted elements of popular culture