Legal Fictions and Exclusionary Rules
Legal Fictions in Theory and Practice, ed. Maksymilian Del Mar & William Twining (Springer, 2015), 157-73
28 Pages Posted: 21 Mar 2014 Last revised: 1 Nov 2017
Date Written: March 16, 2014
Although the law abounds in fabrications, the term “legal fiction” is best reserved for what Alf Ross describes as “posed propositions,” which assert an equivalence or identity only to secure a particular doctrinal result. On this view, legal fictions lack the generative potential of metaphors, because fictions depend on a truncated causal chain that excludes any consequence other than the doctrinal consequence the fiction was created to license, whereas metaphors spur on the imagination to make further connections. I explore this idea by drawing on research in the psychology of reading, which distinguishes between the care that readers take in restricting their use of “artificial” information, and their willingness to integrate information they take to be factual. Legal information (facts, doctrines) might similarly be arranged according to how narrowly or broadly the information may be applied. This approach allows us to locate particular examples along a spectrum, characterizing them as more or less fictional rather than simply placing them inside or outside the category of fiction. After developing the implications of this empirical research in psychology, I suggest that legal fictions exhibit the same kind of artifice as exclusionary rules (e.g., the hearsay prohibition), and that given the relative ease of implementing their artificial requirements, fictions may have facilitated the development of exclusionary rules by inspiring an unwarranted confidence in their workability. Finally, I turn to legal and literary examples that display similar kinds of artifice, focusing on deeming provisions and Wilde’s play The Importance of Being Earnest.
Keywords: legal fictions, legal history, analogy, simile, metaphor, narrative, exclusionary rules, hearsay, deeming provisions, Oscar Wilde
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