Fuller on legal fictions: a Benthamic perspective

Abstract

AbstractThis paper attempts first to explain Bentham's distinction between a fiction and the name of a fictitious entity, and to relate that distinction to his rationale for the critique of legal fictions. A second goal of the paper is to investigate the tensions involved in Bentham's ontology and epistemology, and more specifically the tension between the objectivist and subjectivist Bentham. It is argued that Bentham's objections to legal fictions were traceable to their use in deceptive or fallacious argument, whilst his logic provided a means of rehabilitating the use of the names of those fictitious entities which could be explicated through his technique of paraphrasis (that is, explained in terms of real entities), in relation to which both meaning and truth might be exchanged. This realist perspective differs markedly from that of Fuller, who, following Vaihinger, rejects the attempt to replace fiction with truth. There are significant areas of agreement between Bentham and Fuller, on the figurative nature of much language, and even, in certain contexts, on the utility of the self-conscious deployment of fictions. However, in the context of law and morality, it appears that his development of a route to truth through paraphrasis makes Bentham the enemy of fictions, since, in this field at least, truth and utility stand or fall together.