“Legal Fictions,” in The Philosophy of Law: An Encyclopedia, Volume I, ed. Christopher Gray, (Garland Publishing, 2000) 300-04.
This chapter was written while I was a law student. It provides a brief survey of the historical views and functions of the legal fiction, a judicial device used in civil and common law reasoning. A legal fiction is a false assumption of fact made by a court in order to reconcile a specific legal result with an established rule of law. I begin by looking at the nasciturus fiction originating in Roman law, which treats the unborn child as though born for the purposes of inheritance in order to circumvent the civil code’s prescription that legal personhood begins at birth. I then look at the historical debate between Blackstone and Bentham, followed by Maine’s middle ground view of fictions as an important tool in the development of full blown legal systems. Turning to present day concerns, I explore Lon Fuller’s view of fictions, extending his analysis of the risk of the fiction through my own analysis of the nasciturus fiction in contemporary private law within the context of maternal liability.
