How Legal Realism Views the Role of Legal Fictions

Legal realism, a school of thought that emerged in the early 20th century, challenges traditional notions of law as a rigid, objective system. Instead, it emphasizes the role of judges, social context, and practical outcomes in shaping legal decisions. One fascinating aspect of legal realism is its perspective on legal fictions—those artificial constructs courts use to achieve desired results while maintaining the appearance of doctrinal consistency.

In today’s world, where issues like AI regulation, climate litigation, and digital privacy dominate legal discourse, understanding how legal fictions operate—and how legal realism critiques them—offers valuable insights.

The Nature of Legal Fictions

Legal fictions are assumptions or constructs that courts treat as true, even when they contradict reality. Historically, they’ve been used to bridge gaps between rigid legal frameworks and evolving societal needs. For example:

• Corporate personhood: Treating corporations as "persons" under the law to grant them rights and liabilities.
• Constructive notice: Assuming someone knew a fact (e.g., a published legal notice) even if they didn’t.
• Adoption "as if" biological: Legally treating adoptive parents as biological ones for inheritance purposes.

Legal realists argue these fictions aren’t neutral tools but reflect deeper judicial pragmatism—or even policy-driven manipulation.

Legal Realism’s Critique: Fictions as Judicial Tools

1. Fictions Mask Judicial Lawmaking

Traditional legal theory portrays judges as passive interpreters of fixed rules. Legal realists like Oliver Wendell Holmes Jr. and Karl Llewellyn rejected this, arguing judges actively shape outcomes. Fictions, they say, are covert ways for courts to legislate without admitting it.

Example: In climate lawsuits, courts sometimes use the fiction of "public trust doctrine" to justify sweeping environmental rulings, sidestepping legislative gridlock. Critics call this judicial overreach; realists see it as inevitable pragmatism.

2. Fictions Reflect Societal Priorities

Legal realism ties law to social context. Fictions evolve as societal values shift.

Example: The "reasonable person" standard in negligence law is a fiction that changes with cultural norms (e.g., considering cybersecurity awareness "reasonable" today vs. 1950). Realists highlight how such fictions encode biases—like assuming a "reasonable person" is male, straight, or abled.

3. Fictions Can Be Abused

While fictions help adapt law to new realities (e.g., digital assets as "property"), realists warn they can also entrench power.

Example: "Sovereign immunity" fictions shield governments from lawsuits, often blocking accountability for human rights abuses. Realists urge scrutinizing whose interests these fictions serve.

Modern Hotspots Where Legal Fictions Matter

AI and Legal Personhood

As AI systems make autonomous decisions, courts face questions: Can an AI "intend" harm? Should it have liability? Some propose extending the "corporate personhood" fiction to AI—a move realists would dissect as policy-driven, not logic-based.

Climate Change Litigation

Courts increasingly rely on fictions like "intergenerational equity" to hold polluters liable for future harms. Realists applaud the creativity but question whether such fictions can withstand political backlash.

Digital Privacy and "Virtual Trespass"

Old property fictions struggle with data breaches. Is hacking a "trespass" if data isn’t physical? Realists argue these fictions reveal law’s struggle to keep pace with tech.

The Realist Takeaway: Embrace Transparency

Legal realism doesn’t reject fictions outright but demands honesty about their role. Instead of pretending fictions are timeless truths, realists urge:

• Acknowledge judicial discretion: Admit when fictions are policy tools.
• Update outdated fictions: Discard those that perpetuate inequity (e.g., marital rape exemptions once justified by "unity of spouses" fictions).
• Use fictions adaptively: Craft new ones for emerging issues (e.g., "algorithmic due process").

In an era of rapid change, legal fictions will remain indispensable—but only if we wield them with clear-eyed realism.