Simon Stern, ‘Legal Fictions and Legal Fabrication’

ABSTRACT
This chapter examines two of the most influential theories of legal fictions, suggesting that neither one explains the distinctive features that doctrines such as corporate personhood, coverture, and civil death have in common. The chapter first examines Henry Sumner Maine’s theory; although his account is often quoted, it has received comparatively little scholarly attention. Sumner offers a genealogical account: on his view a doctrine’s fictional status depends crucially on the doctrine’s source – and yet scholars who draw on his theory rarely pay any heed to this criterion. For Fuller, the fictional status of a doctrine depends on its falsity, and this requirement, too, accords poorly with the category of legal fictions, when we consider the examples that usually account for scholarly interest in the subject. I suggest that a better way of understanding legal fictions is to see them as achieving, in legal thought, what metafiction achieves in the literary realm. I close by developing some implications of this analogy.

Stern, Simon, Legal Fictions and Legal Fabrication (February 19, 2020). Hans Lind, ed, Fictional Discourse and the Law (Routledge, 2020), 191-99.

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