Legal Fictions and Legal Fabrication

Hans Lind, ed., Fictional Discourse and the Law (Routledge, 2020), 191-99

13 Pages Posted: 31 Mar 2020

See all articles by Simon Stern

Simon Stern

University of Toronto - Faculty of Law

Date Written: February 19, 2020

Abstract

This chapter examines two of the most influential theories of legal fictions, suggesting that neither one explains the distinctive features that doctrines such as corporate personhood, coverture, and civil death have in common. The chapter first examines Henry Sumner Maine’s theory; although his account is often quoted, it has received comparatively little scholarly attention. Sumner offers a genealogical account: on his view a doctrine’s fictional status depends crucially on the doctrine’s source — and yet scholars who draw on his theory rarely pay any heed to this criterion. For Fuller, the fictional status of a doctrine depends on its falsity, and this requirement, too, accords poorly with the category of legal fictions, when we consider the examples that usually account for scholarly interest in the subject. I suggest that a better way of understanding legal fictions is to see them as achieving, in legal thought, what metafiction achieves in the literary realm. I close by developing some implications of this analogy.

Keywords: legal fictions

Suggested Citation

Stern, Simon, Legal Fictions and Legal Fabrication (February 19, 2020). Hans Lind, ed., Fictional Discourse and the Law (Routledge, 2020), 191-99, Available at SSRN: https://ssrn.com/abstract=3541309

Simon Stern (Contact Author)

University of Toronto - Faculty of Law ( email )

78 Queen's Park
Toronto, Ontario M5S 2C5
Canada

HOME PAGE: http://www.law.utoronto.ca/faculty-staff/full-time-faculty/simon-stern

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