Hostname: page-component-78c5997874-mlc7c Total loading time: 0 Render date: 2024-11-05T16:25:54.408Z Has data issue: false hasContentIssue false
  • English
  • Français

Legal fictions and the limits of legal language

Published online by Cambridge University Press:  16 December 2013

Karen Petroski
Karen Petroski*
Affiliation:
Saint Louis University School of Law
*
[email protected]
Get access Rights & Permissions [Opens in a new window]

Abstract

Since Lon Fuller published his 1930 trilogy of essays on the topic, students of the legal fiction have focused on identifying additional examples of fictions or challenging Fuller's classic taxonomy. But Fuller did more in these essays than propose a definition and a classification system; he also argued that legal fictions are examples of a more general phenomenon found in many systems of specialised language usage. Drawing on work done in the intervening decades on related issues outside the law, this paper develops this insight in new directions, seeking to understand in more detail one of Fuller's principal concerns: the points at which legal language stops communicating, points that may shift over time but will never completely disappear. The analysis indicates that the currently prevailing understanding of legal fictions as, in essence, consciously counterfactual propositions is historically contingent and incomplete; that legal writers have generally used the ‘legal fiction’ label to signal those writers' sense of the futility of further justification to a non-legal audience (even when they are using the term in a justification likely to be read only by a legal audience); and, contrary to the assumptions of many post-Fuller theorists, that the boundaries of the legal vocabularies recognised as self-justifying may have become less distinct over the past century.

Type
Research Article
Information
International Journal of Law in Context , Volume 9 , Issue 4 , December 2013 , pp. 485 - 505
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

Allen, Ronald and Pardo, Michael S. (2002) ‘The Myth of the Law–Fact Distinction,’ Northwestern University Law Review 97: 1769–808.Google Scholar
Bazerman, Charles (1988) Shaping Written Knowledge: The Genre and Activity of the Experimental Article in Science. Madison, WI: University of Wisconsin Press.Google Scholar
Black, Bert (1988) ‘A Unified Theory of Scientific Evidence,’ Fordham Law Review 56: 595–696.Google Scholar
Campbell, Kenneth (1983) ‘Fuller on Legal Fictions,’ Law & Philosophy 2: 339–70.Google Scholar
Chesebro, Kenneth J. (1993) ‘Galileo's Retort: Peter Huber's Junk Scholarship’ (book review), American University Law Review 42: 1637–726.Google Scholar
Cooney, Mark (2006) ‘Stringing Readers Along,’ Michigan Bar Journal 2006: 44–45.Google Scholar
Cover, Robert M. (1986) ‘Violence and the Word,’ Yale Law Journal 95: 1601–30.Google Scholar
Del Mar, Maksymilian (2013) ‘Legal Fictions and Legal Change,’ International Journal of Law in Context 9(4): 442–465.Google Scholar
Fineman, Martha L. and Opie, Anne (1987) ‘The Uses of Social Science Data in Legal Policymaking: Custody Determinations at Divorce,’ Wisconsin Law Review 1987: 107–58.Google Scholar
Finkelstein, Michael O. and K, William B. (1970) ‘A Bayesian Approach to Identification Evidence,’ Harvard Law Review 83: 489–517.Google Scholar
Fisher, Franklin M. (1980) ‘Multiple Regression in Legal Proceedings,’ Columbia Law Review 80: 702–36.Google Scholar
Fuller, Lon L. (1930a) ‘Legal Fictions,’ Illinois Law Review 25: 363–99.Google Scholar
Fuller, Lon L. (1930b) ‘Legal Fictions,’ Illinois Law Review 25: 513–46.Google Scholar
Fuller, Lon L. (1930c) ‘Legal Fictions,’ Illinois Law Review 25: 877–910.Google Scholar
Gordon, Randy D. (2013) ‘Fictitious Fraud: Economics and the Presumption of Reliance,’ International Journal of Law in Context 9(4): 506–519.Google Scholar
Guinier, Lani (2008) ‘The Supreme Court, 2007 Term—Foreword: Demosprudence Through Dissent,’ Harvard Law Review 122: 4–138.Google Scholar
Hall, Jerome (1956) ‘Psychiatry and Criminal Responsibility,’ Yale Law Journal 65: 761–85.Google Scholar
Halliday, M. A. K. (1973) Explorations in the Functions of Language. London: Edwin Arnold.Google Scholar
Hand, Learned (1901) ‘Historical and Practical Considerations Regarding Expert Testimony,’ Harvard Law Review 15: 40–58.CrossRefGoogle Scholar
Harmon, Louise (1990) ‘Falling Off the Vine: Legal Fictions and the Doctrine of Substituted Judgment,’ Yale Law Journal 100: 1–72.Google Scholar
Harner, Michelle M. and Cantone, Jason A. (2011) ‘Is Legal Scholarship Out of Touch? An Empirical Analysis of the Use of Scholarship in Business Law Cases,’ University of Miami Business Law Review 19: 1–50.Google Scholar
Iser, Wolfgang (1993) The Fictive and the Imaginary: Charting Literary Anthropology. Baltimore: Johns Hopkins University Press.Google Scholar
Knauer, Nancy J. (2010) ‘Legal Fictions and Juristic Truth,’ St Thomas Law Review 23: 1–49.Google Scholar
Ladd, Mason (1952) ‘Expert Testimony,’ Vanderbilt Law Review 5: 414–31.Google Scholar
Ladd, Mason and Gibson, Robert B. (1939) ‘The Medico-Legal Aspects of the Blood Test to Determine Intoxication,’ Iowa Law Review 24: 191–267.Google Scholar
Lupu, Ira C. (1998) ‘Time, the Supreme Court, and the Federalist,’ George Washington Law Review 66: 1324–36.Google Scholar
MacDonald, Susan Peck (1994) Professional Academic Writing in the Humanities and Social Sciences. Edwardsville: Southern Illinois University Press.Google Scholar
McCord, David (1987) ‘Syndromes, Profiles and Other Mental Exotica: A New Approach to the Admissibility of Nontraditional Psychological Evidence in Criminal Cases,’ Oregon Law Review 66: 19–218.Google Scholar
McCormick, Mark (1982) ‘Scientific Evidence: Defining a New Approach to Admissibility,’ Iowa Law Review 67: 879–916.Google Scholar
Melinkoff, David (1963) The Language of the Law. Boston/Toronto: Little, Brown & Company.Google Scholar
Note (1962) ‘Impact of Medical Knowledge on the Law Relating to Prenatal Injuries,’ University of Pennsylvania Law Review 110: 554–601.Google Scholar
Note (1975) ‘Beyond the Prima Facie Case in Employment Discrimination Law: Statistical Proof and Rebuttal,’ Harvard Law Review 89: 387–421.Google Scholar
Note (2002) ‘Lessons from Abroad: Mathematical, Poetic, and Literary Fictions in the Law,’ Harvard Law Review 115: 2228–49.Google Scholar
Note (2011) ‘From Consensus to Collegiality: The Origins of the “Respectful” Dissent,’ Harvard Law Review 124: 1305–26.Google Scholar
Ogden, Charles Kay (1932) Bentham's Theory of Fictions. New York: Kegan Paul, Trench, Trubner & Company.Google Scholar
Petherbridge, Lee and Schwartz, David L. (2011) ‘An Empirical Assessment of the Supreme Court's Use of Legal Scholarship,’ Cornell Law Review 96: 1345–74.Google Scholar
Petroski, Karen (2012) ‘Does It Matter What We Say About Legal Interpretation?,’ McGeorge Law Review 43: 359–402.Google Scholar
Primus, Richard (1998) ‘Canon, Anti-Canon, and Judicial Dissent,’ Duke Law Journal 48: 243–304.Google Scholar
Quinn, Michael (2013) ‘Fuller on Legal Fictions: A Benthamic Perspective,’ International Journal of Law in Context 9(4): 466–484.Google Scholar
Risinger, D. Michael (2000) ‘Navigating Expert Reliability: Are Criminal Standards of Certainty Being Left on the Dock?,’ Albany Law Review 64: 99–152.Google Scholar
Samek, Robert (1981) ‘Fictions and the Law,’ University of Toronto Law Journal 31: 290–317.Google Scholar
Sanders, Joseph (1993) ‘From Science to Evidence: The Testimony on Causation in the Bendectin Cases,’ Stanford Law Review 46: 1–86.Google Scholar
Schauer, Frederick (1995) ‘Giving Reasons,’ Stanford Law Review 47: 633–60.Google Scholar
Short, Jodi L. (2012) ‘The Political Turn in American Administrative Law: Power, Rationality, and Reasons,’ Duke Law Journal 61: 1811–82.Google Scholar
Skolnick, Jerome H. (1961) ‘Scientific Theory and Scientific Evidence: An Analysis of Lie-Detection,’ Yale Law Journal 70: 694–728.Google Scholar
Slobogin, Christopher (1984) ‘Dangerousness and Expertise,’ University of Pennsylvania Law Review 133: 97–174.Google Scholar
Smith, Hubert Winston and Solomon, Harry C. (1943) ‘Traumatic Neuroses in Court,’ Virginia Law Review 30: 87–175.Google Scholar
Smith, Peter J. (2007) ‘New Legal Fictions,’ Georgetown Law Journal 95: 1435–96.Google Scholar
Soifer, Aviam (1986) ‘Reviewing Legal Fictions,’ Georgia Law Review 20: 871–915.Google Scholar
Stack, Kevin M. (1996) ‘The Practice of Dissent in the Supreme Court,’ Yale Law Journal 105: 2235–60.Google Scholar
Staszewski, Glen (2009) ‘Reason-Giving and Accountability,’ Minnesota Law Review 93: 1253–326.Google Scholar
Swales, John M. (1990) Genre Analysis: English in Academic and Research Settings. Cambridge: Cambridge University Press.Google Scholar
Twining, William (2006) ‘Taking Facts Seriously,’ in Twining, William, Rethinking Evidence: Exploratory Essays 14. Cambridge: Cambridge University Press, 14–34.Google Scholar
Vaihinger, Hans (1924) The Philosophy of ‘As If’: A System of the Theoretical, Practical and Religious Fictions of Mankind, trans. Ogden, C. K.. New York: Harcourt, Brace & Company.Google Scholar
Wicker, William (1953) ‘The Polygraphic Truth Test and the Law of Evidence,’ Tennessee Law Review 22: 711–27.Google Scholar