About The Workshop
SW 50-Fictions in Legal Theory and Practice
Convenor: Giuseppe Moro
Contact: giuseppe.moro@unipegaso.it
Legal fictions have played a significant role in the history of legal thought. From Roman jurisprudence, through early modern theories of natural law, to the rise of legal positivism, fictions have generally been understood as false ideas accepted for pragmatic or normative purposes. More specifically, they have been used to resolve judicial controversies, to justify existing political categories, and to enable legal systems to achieve internal unity.
However, despite their widespread adoption throughout history, their status remains controversial. This is not only because many contemporary authors have criticized the use of fictions, arguing that they may undermine the validity of legal norms by creating confusion about the language and function of law. Rather, the controversy primarily concerns the nature of their definition.
The notion of fiction has been approached from two main lines of inquiry. First, it was examined by Jeremy Bentham, who developed a theory grounded in empiricism, with particular emphasis on John Locke’s thought. Second, it was analysed by Hans Vaihinger in The Philosophy of “As If” (1911), where it was framed within an original interpretation of Immanuel Kant, strongly influenced by Schopenhauer and Nietzsche. Both of these perspectives raise fundamental questions about the philosophical status of fictions in legal theory: on what basis, for example, can an unreal entity be used to explain reality? Does this mechanism rely on the structure of language, or on the human faculty to produce ideas of reason?
This workshop aims to address these issues critically by examining how legal fictions operate within legal systems and what their use reveals about the epistemic and normative foundations of law. To achieve these goals, contributions are invited that consider legal fictions from a variety of theoretical and methodological backgrounds, including legal theory, philosophy of language, legal history, comparative law, and socio-legal studies. Special attention will also be given to the historical evolution of legal fictions and their transformation across legal traditions, as well as to their role in contemporary approaches to the study of social reality.
