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St. Thomas Law Review

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Abstract

This Essay reviews the three categories of new fictions outlined above, which I refer to as (1) empirical legal errors; (2) discredited legal regimes; and (3) complex statutory schemes. With respect to each category, I conclude that the appellation of legal fiction is a misnomer and that the integrity of Fuller's classic definition should be retained for its analytic force. The conundrum presented by the legal fiction is that it retains its utility despite its falsity, similar to false statements used in science and mathematics in order to advance a proof or hypothesis. The new legal fictions, however, are different in kind from those described by Fuller because they are neither transparently false nor demonstrably false. As a result, the new legal fiction scholarship does not add to the existing work on fictions, but rather changes the conversation entirely. In addition, I note that the new fictions are often unveiled without an explicit discussion of the standard used to determine their falsity. Certain legal rules, such as those governing eye witness testimony, explicitly incorporate statements of fact that are readily verifiable by reference to real world events. This is not the case when dealing with legal regimes such as slavery or the doctrine of discovery because these legal rules do not reflect or mimic life events; rather they help shape and define complex social relationships and hierarchies. Instead of demonstrable statements of facts, these regimes encompass abstract concepts, such as liberty, autonomy, and sovereignty that are not provable in any conventional sense of the term. Thus, the reliability of eye witness testimony is subject to external verification, whereas the legal regime of slavery and the doctrine of discovery stand as juristic truths quite independent from questions of empirical proof. Finally, I contend that the term legal fiction carries a dismissive connotation that not only denies the inherently constitutive power of the law, but ignores the reality of the system of sanctions established under various regulatory schemes. It also acts as a disservice to those who have labored under the discredited legal regimes that have been recently labeled as legal fictions. The notion of a legal fiction requires a present agreement to temporarily suspend belief and to proceed notwithstanding the acknowledged falsity of the statement. With the clarity of hindsight, there can be no doubt that slavery, and later Jim Crow, were deadly conceits of a different age that exacted untold pain and suffering on persons of color who were conveniently viewed as Other. The fact that these regimes are now discredited, however, does not mean that they can be dismissed as mere legal fictions. They were violent legal regimes that spanned centuries. Fuller cautioned that a legal fiction becomes dangerous when it is believed for then the fiction can approximate a lie. I would add that a fiction can also become dangerous when the force of its constitutive power is ignored. When this occurs, the label of fiction works a denial and removes from memory important lessons regarding the law and the fragility of the human experience. In Part II, I provide a brief overview of legal fictions and discuss the prevalence of both common law and statutory legal fictions, with a particular emphasis on the law school curriculum. Part III then establishes that the three categories of "new legal fictions" (i.e., empirical legal errors, discredited legal regimes, and complex statutory schemes) are different in kind from the classic fictions and, therefore, warrant separate treatment. In each case, the newly labeled "fictions" are either not transparently false or not demonstrably false. With respect to empirical errors, I argue that legal rules valued for their veracity, such as the reliability of eyewitness testimony, are not appropriately termed legal fictions despite the fact that they might rest on false premises. A classic legal fiction maintains its utility despite its falsity, but an empirically based rule that rests on a factual error should be modified or discarded. I then turn to the disturbing trend in scholarship to dismiss discredited legal regimes, such as slavery and the doctrine of discovery, as legal fictions. I distinguish these examples from the empirical errors discussed in the preceding section. Specifically, I address the argument that some of the racist assertions made in judicial opinions were known to be false. I maintain that, even if they were understood to be false, they were propounded with the intent to deceive and, therefore, do not qualify as legal fictions. In the last section, I consider the constitutive power of law in the less emotionally charged atmosphere of a complex statutory scheme. I maintain that even though statutory schemes may be artificial constructions, they cannot be said to be false in any meaningful way. A brief conclusion restates my rationale for advocating a relatively narrow definition of legal fictions and offers some final observations regarding the nature of juristic truth.

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