By Oswald Sobrino, J.D.; M.A. (Econ.); M.A. (Theo.); M.L. (Master of Latin), doctoral student, University of Florida.

Thursday, June 27, 2013

Legal Fictions 101

For about 40 years in the United States, we have lived with the legal fiction that the human fetus is really not human life. We are now living with a relatively new legal fiction that extends marriage to cases in which natural reproduction is impossible.

The law is full of fiction when viewed from the point of view of reality (yes, the fetus is human life; and yes, only male and female can reproduce naturally)--notice that I have not articulated these points as matters of religious morality but as examples of how legal terms obscure reality.

The law is and has been in many ways the opposite of reality. For example, our laws allow many acts that in fact are economically oppressive and exploitive. The greed of our economy legally exploits many people. That reality of exploitation is perfectly legal. The legal fiction is that the activity is somehow fair and beneficial to all parties involved. A prime example is how many employers deny workers a living wage and needed benefits so that profit can be maximized. And remember that every corporation is also a legal fiction.

In the United States, we tend to idolize the law and to see the Supreme Court as a sort of oracle of Delphi that determines reality. Our civic religion is the law--note the Protestant Geneva gowns, the raised pulpit, pews, and even an altar rail of sorts in many courtrooms. The attempt is to create awe in the public with smoke and mirrors--as done by the Wizard of Oz from behind his curtain (the Supreme Court has its own famous red curtain!). Much of what the Supreme Court does is to create legal fictions to justify certain preferences, usually (not always) the social and economic preferences of a privileged elite class, sometimes liberal (for example, Roe v. Wade), sometimes conservative (for example, "separate but equal"). It is a sort of charade--in Spanish, I would say "chantaje."

Realism, on the other hand, looks to the facts and calls things as they are. Legal fictions cannot change reality. Do not trust laws or courts or judges as guides to reality. Fictio cedit veritati ("Fiction yields to the truth"; see link).Trust common sense as a guide to reality. Instead of idolizing the law of the nation, a realism rooted in life is a better guide to the world. With clarity and calm, look to reality.

How then to respond to legal fictions? Think of Galileo's famous words: "And yet it moves." But you may have to say it under your breath, as he supposedly did.

Update: See link. See also this link with the title of a June 28th Wall St. Journal essay not yet available gratis online.

(Portrait of Galileo and image of Supreme Court interior in public domain; Wizard of Oz image under fair use doctrine)