Navigating the Pitfalls of Counterfactuality: Disciplinary and Interdisciplinary Approaches to Legal Fictions

Abstract

The introductory essay on legal fictionality engages with the practice of legal fictions from Roman Law to the twenty-first century, and with the attempts of legal scholarship to conceptualize this particular form of legal imagination. It will discuss the major questions established in the past, with a particular emphasis on the classical understanding of legal fictions as “untrue” or “counterfactual” assumptions—a dichotomy that has pervaded legal thinking for centuries. It will argue that the classical approach is outdated and in urgent need of revision, also demonstrating that theories of other disciplines are better equipped to adequately deal with the issue, from the early debates on truth to more recent positions, such as possible world theory and institutional theories of fictionality. The essay will mainly draw on analytic philosophy and literary theory, but will also invoke more recent legal scholarship that engages with inter- or transdisciplinary approaches. Authors include James, Bradley, Kelsen, Vaihinger, Cohen, Lewis, Meinong, Fuller, Neurath, Rescher, Habermas, Rorty, Glasersfeld, Goodman, Routley, Searle, Genette, Beardsley, Wolterstorff, Currie, Walton, Eco, Anderegg, Doležel and Pavel.