Abstract

http://ssrn.com/abstract=1486228
 
 

Citations (1)



 


 



Legal Fictions and Juristic Truth


Nancy J. Knauer


Temple University - James E. Beasley School of Law

October 9, 2009

St. Thomas Law Review, Vol. 23, 2010
Temple University Legal Studies Research Paper No. 2009-39

Abstract:     
The classic legal fiction is a curious artifice of legal reasoning. In a discipline primarily concerned with issues of fact and responsibility, the notion of a legal fiction should seem an anathema or, at the very least, an ill-suited means to promote a just result. However, the deployment of a patently false statement as a necessary component of a legal rule is a widely practiced and accepted mode of legal analysis. In rem forfeiture proceedings rest on the fiction that the inanimate object was bad. Attractive nuisance re-imagines the child trespasser as an invitee. A host of doctrines bearing the term "constructive" in their titles adopt an "as if" rationalization that deems something to have occurred despite the fact that it did not (e.g., constructive notice, constructive eviction, and constructive discharge).

Legal commentators writing in the diverse fields of law and literature, tax policy, and empirical legal studies have taken a renewed interest in legal fictions, including Fuller’s influential work from the 1930s. They have applied the label "legal fiction" to an eclectic group of legal rules, including slavery, the doctrine of discovery, the tax code, and empirically erroneous legal presumptions (i.e., discredited legal regimes, complex statutory schemes, and empirical legal errors). These newly identified legal fictions do not satisfy Fuller’s classic definition of a legal fiction because they are neither acknowledged to be false nor demonstrably false. The enduring conundrum presented by the classic legal fiction is that it retains its utility despite its falsity, similar to false statements used in science and mathematics in order to advance a proof or hypothesis.

Any discussion of fiction necessarily invokes a concept of reality against which the fiction can be measured. Thus, before we can speak intelligibly of fictions, we must first be able to identify truth. Does it make any sense to refer to slavery as a fiction when it was, in fact, a legal system that brutalized millions? Is the choice of a tax base "false" simply because it is statutorily prescribed? Certain legal rules, such as those governing eye witness testimony, explicitly incorporate statements of fact that are readily verifiable by reference to real world events. Slavery and the doctrine of discovery encompass abstract concepts, such as liberty, autonomy and sovereignty that are not provable in any conventional sense of the term. They stand as juristic truths independent from questions of empirical proof.

Fuller cautioned that a legal fiction becomes dangerous when it is believed for then the fiction can approximate a lie, but there is also danger when the force of its constitutive power is ignored. When this occurs, the label of fiction works a denial and removes from memory important lessons regarding the law and the fragility of the human experience.

Number of Pages in PDF File: 51

Keywords: legal fictions, slavery, doctrine of discovery, jurisprudence, law and literature, tax policy, ectopia, lon fuller

JEL Classification: K10, K34

Accepted Paper Series


Download This Paper

Date posted: October 19, 2009 ; Last revised: August 14, 2010

Suggested Citation

Knauer, Nancy J., Legal Fictions and Juristic Truth (October 9, 2009). St. Thomas Law Review, Vol. 23, 2010; Temple University Legal Studies Research Paper No. 2009-39. Available at SSRN: http://ssrn.com/abstract=1486228

Contact Information

Nancy J. Knauer (Contact Author)
Temple University - James E. Beasley School of Law ( email )
1719 N. Broad Street
Philadelphia, PA 19122
United States
215-204-1688 (Phone)
215-204-1185 (Fax)
Feedback to SSRN


Paper statistics
Abstract Views: 2,068
Downloads: 389
Download Rank: 41,635
Citations:  1

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo2 in 0.453 seconds