Legal Fictions Revisited

There was a time when the topic of legal fictions engaged many of the most important thinkers about law, including Jeremy Bentham, Morris Cohen, John Chipman Gray, Jerome Frank, Lon Fuller, Rudolf von Ihering, Hans Kelsen, Henry Sumner Maine, Alf Ross, and Pierre de Tourtoulon, among many others. But that time has passed, and these days “legal fiction” has become little more than a loosely used all-purpose term of legal criticism. This change is unfortunate, however, because real legal fictions still exist and are still important. Even more significantly, however, understanding legal fictions helps us to understand legal presumptions, and, even more broadly, provides a valuable window into understanding legal truth and legal language. This paper, prepared for the Project on Truth and Law of the Instituto Tecnológico Autónomo de México (ITAM), explores these issues, recapturing some of the historical thinking about legal fictions, distinguishing true legal fictions from the notion of a fiction in Kelsenian legal philosophy, deflating the notion that legal presumptions are legal fictions, and examining the relationship among true legal fictions, legal truth, and legal language