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Sciences Po Law School (SPLS), Sciences Po PhD Program
Professor Geoffrey SAMUEL
ls Law a Fiction?
- Professor Geoffrey SAMUEL
Geoffrey Samuel is an affiliate professorat Sciences Po Law School of, where he teaches Contract and Tort Law. A graduate of Cambridge, Geoffrey Samuel is Professor at Kent University. Specialist in Comparative studies, Professor Samuel codirects the Kent Center for European and Comparative Law; is a former President and member of the British Association of Comparative Law; and is on the editorial staff of the Journal of Comparative Law. The close ties to France, Prof essor Samuel has developed throughout his career were confirmed in 2002 by the title Doctor honoris causa, awarded by the University of Nancy.
In a pioneering, but rather forgotten, monograph published well over half a century ago on the history of legal theory by J Walter Jones the material was presented under a series of chapter headings that would appear somewhat strange to many contemporary students of jurisprudence (legal theory and philosophy). There are chapters devoted to psychological theories, to sovereignty theory, to the metaphysicians and to revolutionary legality. There is also a chapter on the fiction theory (Jones, 1940, 164-186).
Legal fictions have of course attracted the attention of jurists for well over two centuries almost without a break; but the idea of a fiction theory of law, to be contrasted perhaps with positivism, natural law and realist theories, has not been prevalent since Jones' book (but cf Fuller, 1967). However a revived interest in the work of Hans Vaihinger (1852-1933) (Vaihinger, 2013 French ed), who developed the philosophy of 'as if', is provides an opportunity to reconsider fiction theory not just in general (Bouriau, 2013; Borutti, 2006) but more specifically with regard to legal thought (Del Mar & Twining, 2015). According to Vaihinger, the way we represent the \l\IOrld is through constructions which serve to orientate us in the real world (Bouriau, 2013, 38); and these constructions - these models and theories (mathematical, scientific, legal etc) - are not real in themselves but are only 'as if' representations allowing us to make sense of the world. They are fictions. In saying this Vaihinger is not being sceptical in any pejorative sense; what mattered for him was the utility of a model or theory rather than its capacity to reflect 'reality' or 'truth' (Bouriau, 2013, 111 ). He proposed his philosophy of 'as if' as une certaine attitude épistémique (Bouriau, 2013, 119).
This seminar will investigate the relevance of fictionalism to legal thinking. lt will be argued that merely asserting that law itself is a fiction is often difficult to defend, although much of course depends upon what one means by 'fiction'. Yet when law is broken down into its constitutive parts - ru les, concepts, categories, reasoning and theory - the 'as if' (comme si) attitude épistémique can possibly survive its critics. lndeed, there are works emerging by jurists that, while seemingly ignorant of Vaihinger, actually appear subconsciously influenced by fictionalism (see eg Mathieu, 2014). Accordingly it will be argued that fiction theory offers important possibilities in the field of legal epistemology and comparative law; it equally provides a powerful foundation for a critical attitude towards some of the pretentions of, for example, the 'new' private law scholarship that is gaining influence in the common law world.
- Sorutti, S, Fiction, in S Mesure & P Savidan (eds), Le dictionnaire des sciences humaines (Presses Universitaires de France, 2006) 460
- Souriau, C, Le 'comme si': Kant, Vaihinger et le fictionalisme (Les Éditions du Cerf, 2013)
- Del Mar, M & Twining, W (eds), Legaf Fictions in Theoty and Practice (Springer, 2015)
- Fuller, L, Legal Fictions (Stanford University Press, 1967)
- Jones, JW, Historical lntroduction to the Theoty of Law (Oxford University Press, 1940)
- Mathieu, M-L, Les représentations dans fa pensée des juristes (IRJS Éditions, 2014)
- Vaihinger, H, La philosophie du comme si (Éditions Kimé, 2nd ed, 2013, trans C Souriau)
- Sciences Po Law School, Room 410T, 4th floor, 13, rue de l'Université, 75007 Paris.