What’s in a Name? Legal Fictions and Philosophical Fictionalism

Abstract

This paper uses analytic philosophy to prevent merely verbal disputes about the concept of fiction within discussions on fictiones iuris. It provides a survey of potentially fruitful connections between legal fictions and fictionalism. More specifically, I will argue that by enriching current accounts of legal fictions in legal theory with insights from (1) the philosophy of language on fictional speech and from (2) contemporary metaphysics on philosophical fictionalism, it seems natural to explore the position that talk involving fictiones iuris is structurally an exemplification of elliptical speech. Such fictionalism about legal fictions illuminates why prominent condemnations of fictions in law – e.g. as blatant falsehoods, shady fraudulences, or legal defects – are theoretical myths, since they fail to distinguish between analytically distinct (ontological, epistemic, alethic, semantic, and evaluative) levels. Moreover, a fictionalist account might even sharpen our sense of which legal fictions are more “innocent” than others. I will begin by introducing philosophical fictionalism (II), before the fictiones iuris will be characterized as an operation in legal reasoning by consulting the Leibnizian reconstruction of Roman Law’s epistemology (III). Sections IV and V seek to provide further clarifications on the ‘fictional’ / ‘fictitious’ distinction as well as the heterogeneity of fictionalist research questions. Section VI then contains a little guided tour through the different analyses of the concept of fiction(s) within fictionalism. Subsequently, I will show how insights from those discussions contribute to demystify some of the most prominent allegations raised against legal fictions (VII). Fictionalism about legal fictions, Section VIII tentatively suggests, might not only harmonize with both classic and recent treatments of legal fictions, but help to also highlight their epistemic values. In slogan form: fictiones iuris are instruments to preserve legal truths worth having.