Legal fictions and the limits of legal language

Abstract

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.

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