Is Law a Fiction?

Abstract

Taking its cue from Walter Jones’ 1940 monograph on the history of legal theory—one of whose chapters is entitled The Fiction Theory—this present chapter examines the credibility of such a theory. Much of course depends upon how one defines fiction. However if one adopts Hans Vaihinger’s philosophy of ‘as if’ as an ‘epistemic attitude’ and applies it, not so much to law as an object in itself, but to the constituent parts of legal knowledge (individual theories, concepts, categories, rules and reasoning methods) the philosophy can begin to seem one that should be taken seriously by jurists. Vaihinger is not without his critics, it must be said, and if care is not taken the whole notion of a legal fiction can lose its meaning. Yet the philosophy of ‘as if’ can survive these criticisms and force jurists to think, if not about fictions themselves, then at least about its opposite, namely reality. What is law as a ‘reality’? If it is a ‘thing’ made up of its constituent ‘properties’, then these properties, on closer examination, incorporate many fictional elements and notions. Then, again, perhaps one might think of law ‘as if’ it is a fiction.