Hostname: page-component-78c5997874-mlc7c Total loading time: 0 Render date: 2024-11-05T16:16:47.519Z Has data issue: false hasContentIssue false

Fuller on legal fictions: a Benthamic perspective

Published online by Cambridge University Press:  16 December 2013

Michael Quinn*
Affiliation:
Bentham Project, University College London

Abstract

This paper attempts first to explain Bentham's distinction between a fiction and the name of a fictitious entity, and to relate that distinction to his rationale for the critique of legal fictions. A second goal of the paper is to investigate the tensions involved in Bentham's ontology and epistemology, and more specifically the tension between the objectivist and subjectivist Bentham. It is argued that Bentham's objections to legal fictions were traceable to their use in deceptive or fallacious argument, whilst his logic provided a means of rehabilitating the use of the names of those fictitious entities which could be explicated through his technique of paraphrasis (that is, explained in terms of real entities), in relation to which both meaning and truth might be exchanged. This realist perspective differs markedly from that of Fuller, who, following Vaihinger, rejects the attempt to replace fiction with truth. There are significant areas of agreement between Bentham and Fuller, on the figurative nature of much language, and even, in certain contexts, on the utility of the self-conscious deployment of fictions. However, in the context of law and morality, it appears that his development of a route to truth through paraphrasis makes Bentham the enemy of fictions, since, in this field at least, truth and utility stand or fall together.

Type
Research Article
Copyright
Copyright © Cambridge University Press 2013 

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

Bentham, Jeremy (UC) UCL collection of Bentham Manuscripts, boxes i–clxxvi.Google Scholar
Bentham, Jeremy (1787) Defence of Usury; Shewing the Impolicy of the Present Legal Restraints on the Terms of Pecuniary Bargains. London: Payne.Google Scholar
Bentham, Jeremy (1838–43) The Works of Jeremy Bentham, Now First Collected; Under the Superintendence of his Executor, John Bowring, 11 vols.. Edinburgh: Tait.Google Scholar
Bentham, Jeremy (1977) A Comment on the Commentaries and A Fragment on Government, eds. Burns, J. H. and Hart, H. L. A.. London: Athlone.Google Scholar
Bentham, Jeremy (1983a) Chrestomathia, eds. Smith, M. J. and Burston, W. H.. Oxford: Clarendon Press.Google Scholar
Bentham, Jeremy (1983b) Deontology Together with A Table of the Springs of Action, and the Article on Utilitarianism, ed. Goldworth, A.. Oxford: Clarendon Press.Google Scholar
Bentham, Jeremy (1996) An Introduction to the Principles of Morals and Legislation, eds. Burns, J. H. and Hart, H. L. A.. Oxford: Clarendon Press.Google Scholar
Bentham, Jeremy (1997) De l'ontologie et autres textes sur les fictions, ed. Schofield, P., trans. Schofield, P., Paris: Seuil.Google Scholar
Bentham, Jeremy (2001) Writings on the Poor Laws: I, ed. Quinn, M.. Oxford: Clarendon Press.Google Scholar
Bentham, Jeremy (2014) Of Sexual Irregularities, and Other Writings on Sexual Morality, ed. Schofield, P., Pease-Watkin, C. and Quinn, M.. Oxford: Clarendon Press.Google Scholar
Cohen, L. Jonathan (1983) ‘Freedom of Proof’, in Twining, W. L., ed., Facts in Law. Wiesbaden: Steiner, 121.Google Scholar
Del Mar, Maksymilian (2013) ‘Legal Fictions and Legal Change’, International Journal of Law in Context 9(4): 437441.Google Scholar
Dickens, Charles (1995 [1854]) Hard Times. Harmondsworth: Penguin.Google Scholar
Fuller, Lon (1930–31) ‘Legal Fictions’, Illinois Law Review 25: 363–99, 513–46, 877–910.Google Scholar
Fuller, Lon (1964) The Morality of Law. New Haven, CT: Yale University Press.Google Scholar
Fuller, Lon (1967) ‘Introduction’, in Legal Fictions. Stanford: Stanford University Press, vii–xiii.Google Scholar
Gordon, Randy D. (2013) ‘Fictitious Fraud: Economics and the Presumption of Reliance’, International Journal of Law in Context 9(4): 506519.CrossRefGoogle Scholar
Harrison, Ross (1983) Bentham. London: Routledge & Kegan Paul.Google Scholar
Jackson, Bernard S. (1998) ‘Bentham, Truth and the Semiotics of Law’, Current Legal Problems 51: 493531.Google Scholar
Lee, Kukok (1990) The Legal-Rational State: A comparison of Hobbes, Bentham and Kelsen. Aldershot: Avebury.Google Scholar
Ogden, Charles K. (1932) Bentham's Theory of Fictions. London: Kegan Paul, Trench & Trubner.Google Scholar
Petroski, Karen (2013) ‘Legal Fictions and the Limits of Legal Language’, International Journal of Law in Context 9(4): 485505.Google Scholar
Postema, Gerald J. (1983) ‘Fact, Fictions and Law: Bentham on the Foundations of Evidence’, in Twining, W. L., ed., Facts in Law. Wiesbaden: Steiner, 3764.Google Scholar
Postema, Gerald J. (1986) Bentham and the Common Law Tradition. Oxford: Clarendon Press.Google Scholar
Quinn, Michael (2012) ‘L'archétypation et la recherche d'images signifiantes: signifiant et signifié dans la logique de Bentham’, Essaim 28: 170–81.Google Scholar
Rosen, Gideon (2005) ‘Problems in the History of Fictionalism’, in Kalderon, M. E., ed., Fictionalism in Metaphysics. Oxford: Clarendon Press, 1464.Google Scholar
Schofield, Philip (2006) Utility and Democracy: The Political Thought of Jeremy Bentham. Oxford: Clarendon Press.CrossRefGoogle Scholar
Stolzenberg, Nomi M. (1999) ‘Bentham's Theory of Fictions – “A Curious Double Language”’, Cardoza Studies in Law & Literature 11: 223–61.Google Scholar
Vaihinger, Hans (1925 [1911]) The Philosophy of ‘As if’: A System of the Theoretical, Practical and Religious Fictions of Mankind, trans. Ogden, C. K.. London: Kegan Paul.Google Scholar