The Pragmatic Value of Legal Fictions

Abstract

Using a jurisprudence grounded in pragmatist philosophy, this chapter proposes a reconceiving of the concept of legal fictions. By tradition, fictions are treated in legal theory as consciously false assertions. This is unfortunate, for it engulfs law in logical contradiction, marginalizes all fictions as metaphysically suspect regardless of social value, and compromises the integrity of law and judicial decision-making. I argue instead that legal fictions be understood as propositional legal truths—doctrines, rules, principles—asserted in conscious recognition that they are inconsistent in meaning or otherwise in semantic conflict with true propositional claims made outside (or elsewhere within) the law. If the conflict produces no damage outside law or within—i.e. no confusion, incoherence, or functional destabilization—and if the fiction works some efficiency or functional improvement within the system of law, then the fiction has value and utility. But to the extent a legal fiction wreaks intersystemic havoc—generates confusion or incoherence, frustrates ability to function—or does not work some genuine utility within law, it is not useful, but problematic. Harmless and workable legal fictions hold pragmatic value and are law-worthy, while problematic, pernicious fictions should be removed from the law.

What shall we call a thing anyhow? It seems quite arbitrary, for we carve out everything, just as we carve out constellations, to suit our human purposes–

William James, Pragmatism [122]