Chapter 9: Is legal reasoning based on fictions?
Taking its cue from Walter Jones’ 1940 monograph on the history of legal theory – one of whose chapters is entitled ‘The fiction theory’ – this present chapter examines the credibility of such a theory with respect to legal reasoning. Of course much depends upon how one defines fiction, but if one adopts Hans Vaihinger’s philosophy of ‘as if’ as an ‘epistemic attitude’ and applies it to legal reasoning the thesis can be defended. Many of the notions and concepts used in legal reasoning can be seen as fictional creations and the inferential techniques seemingly used by jurists (induction and deduction) can be exposed as rather artificial constructions. Interpretation and taxonomical techniques – for example when reasoners resort to the use of imagery and metaphor – can equally be shown to be dependent upon narratives and categories that are ‘as if’ creations. In short, ‘reality’ in legal reasoning often turns out to be very elusive.
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