Abstract

Many judges faced with the task of rendering difficult decisions have a habit of pretending things that they know to be false. In so doing they employ legal fiction. Generally, a legal fiction is a false assumption of fact made by a court as the basis for resolving a legal issue. One of its purposes is to reconcile a specific legal result with an established legal rule. Legal fictions are thought to provide a mechanism for preserving the rule while ensuring a just outcome. By feigning the facts, the rule is said to remain intact. Historically, the fiction has achieved a certain duality. It is thought to be a humiliation to legal reasoning while, at the same time, indispensable to justice. ;This study of legal fictions is an attempt to answer plaguing questions in the debate about an old judicial practice. To what extent are legal fictions necessary? What is their proper function? What are the dangers associated with their use? The answer to these questions is gleaned from four separate investigations of the fiction, each taken from a different perspective. The first is an overview of the historical debate that has been generated by the use of legal fictions. It provides an essential distinction between the judicial device known as a legal fiction and other so-called fictions that form the infrastructure of our legal system. The second investigation provides a contemporary account of legal fictions through a critical examination of Fuller's study of them. This investigation reveals certain shortcomings in Fuller's theoretical account. Consequently, in the third investigation, a contemporary case study is provided. The development of a particular legal fiction is traced from its ancient origins in Roman law to its present use in the Canadian courts in an attempt to understand how the fiction actually operates in practice. In the final investigation, a philosophical examination of the background conditions underlying the use of legal fictions illustrates how reasoning through the device of fiction differs from usual methods of judicial reasoning. This is achieved by contemplating nonfiction in the law on Searle's model of institutional facts