Fictional discourse and the law: A theoretical perspective
Legal fictions and legal fabrication
Since the inception of the common-law courts, jurists and lawyers have been highly attentive to certain questions about how law manages its own administration, such as rules of pleading, rules of court, and civil procedure more generally, but only in the last two hundred years or so has there been a similar degree of attention to the more abstract issues bearing on the law’s operations—what we might call “doctrinal procedure” or “the law of the common law.” Conventions governing proof standards and the binding power of precedent, for example, did not become formalized until the nineteenth century',[1] and the same applies to legal fictions. Up that time, they “just grew” like Topsy, with only brief and occasional efforts, by common lawyers, to explain or theorize them. However, in the course of the nineteenth century, as lawyers became increasingly self-conscious about the nature and legitimacy of their activities, all of these phenomena came under the scrutiny' of a theorist equipped with the tools of categorization and normative evaluation. Whereas historians of a subject such as contracts or group litigation can study' the evolution of the practice in relation to many' centuries’ worth of commentary' on it, scholars interested in these more conceptual issues have a more limited fund of commentary' to place against the history' of legal practice.
Nevertheless, once they were isolated and theorized, these aspects of doctrinal procedure came into their own as subjects of analysis, and they have generated a significant amount of research over the last century. Scholarship on legal fictions has burgeoned in recent years, fueling work not only' by law professors but also literary' critics, in which the concept of the legal fiction is assigned a wide range of meanings. In what follows, I consider one of the most influential theories of legal fictions and show why it does not serve the purposes that commentators usually ask of it. Next, I try' to explain what gives the legal fiction a distinctive legal function, and the answer I propose is that legal fictions seem, to modern commentators, to do for law what metafiction does for imaginative writing. That analogy’, in turn, prompts another question—namely, why is it that a relatively small group of doctrinal propositions (the ones that are repeatedly offered as classic examples of legal fictions) are taken as exhausting the category' of devices that self-reflexively expose law’s own constructive operations, when many other legal tools also perform the same function?
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