Friday, September 29, 2006

A legal fiction

My favorite legal term is one that most of you will have heard. In fact, unlike most excellent legal terms, it does not get its excellence from diabolical spelling or comical pronunciation. Rather, its very simple, "a legal fiction."

I love this because it is so value laden. The concept drips its own self-importance. Why do we have "agents" or "implied consent"? Well they are legal fictions. They are made up so that we can make the laws work.

The best part about this comes from the implications. First of all, it implies everything else to be legal fact. If there is one thing I have found, perched on my seamless web, there are no legal facts. Every case has its counter, and isn't there a reason my case books are all written in questions? If they are asking questions constantly are there really right answers? What does that say about the system?

This is not a criticism, rather it speaks to what I refereed to yesterday, the formation of the law as a metaphysical entity. Because every case has its opposite and every rule has its exception, law creates its own life. It thrives on its own fiction.

What does that say about our system? I hope it says something about our values of fairness. There are so many cases where I picture the judge saying to the clerk "So I think the plaintiff won, how do we get there?" In those sticky cases worthy of reaching a case book, the issues might rest on the legal advocates providing the judge a good excuse to find one way, rather than convincing him as a blank slate.

It makes our law bend and evolve without breaking. It makes the web analogy feel even more poetic.

The other side of a "legal fiction" is that now we go a step further. Our system, like the famous aboriginal world of anthropological lore, is the elephant that sits on a turtle, the turtles subsequently on other turtles all the way down. On top of an infinite number of turtles, we put a bunch of blatantly made up stuff on top, and deem them as such.

Why? Because it works. Its all of the pretension and self-agrandizing of philosophy but at the end of the day, law can put people into small cubes for the rest of their life while making only a small subsection of people mad. That's power, that matters, and that is what makes legal fiction worth reading.

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