Bentham's Theory of Fictions—A “Curious Double Language”

Abstract

This is a story about Bentham's theory of fictions. But it is also a story about Bentham's theory of facts because, as Bentham painstakingly demonstrates, fiction and fact are inseparable aspects of the same cognitive process. This part of Bentham's work has been obscured by the common misapprehension that positivism, which Bentham endorsed and indeed in some sense fathered, commits us to making a sharp distinction between fact and fiction, much like the one he argued for between value and fact. In practice, fiction is indeed defined in contradistinction to fact, but Bentham's conception of the link between the two went much further. In his view fictions create facts, which are fictions, as these terms are properly understood. This view of Bentham is wholly at odds with the standard view of him as the arch-critic of, specifically, legal fictions. Bentham was indeed a scathing critic of the use of fiction in the discourse of law. But when one understands the broader sense in which Bentham classified legal facts as species of fiction, it is clear that his criticisms of legal fictions are more qualified than is commonly thought. From this point of view, legal fictions can be seen as the soft underbelly of the law of evidence to which Bentham devoted himself to systematizing, and therefore cannot be adequately comprehended apart from his views about the nature of evidence, and his general theory of fiction and fact. Bentham's theory of the fictional nature of facts, which I will refer to here as fictionalism, or alternatively, fictionalist realism, exemplifies a broader intellectual tradition that is characterized by several interlocking themes, only one of which is the focus of attention here namely, a duality of perspectives regarding fiction and fact. According to Robert Newsom, the key to the nature of fiction is the nature of belief engendered by fiction neither simple credulity, nor the complete absence of