Law and Fiction

The project aims at making a specific knowledge of the Humanities accessible to the legal field: the knowledge on fictionality as a cultural technique. Since the Roman Republic, the law abounds in fictions. Such fictions range from the fiction that a citizen captured in war has died over the fiction that a woman is feigned to be a man to todays fiction in immigration law that an asylum seeker has not yet arrived, though in fact already being in the country, leading to an effective deprivation of rights. Other fictions propagate problematic mythologies, such as the fiction of many democracies that their constitutions are representative for a general public, leading to the assumption that a homogenous public can be construed that gave these texts both their authority and a single voice. More frequent fictions of daily life include fictions in administrative law and tax law. The project aims at showing that the knowledge of the legal field on the nature and character of legal fictions is outdated, as is the knowledge on fictionality as a cultural technique, while other disciplines already have an up-to-date and viable understanding of the matter. This anachronism in legal theory and practice has two relevant problematic effects: First, the historical knowledge of the problems and dangers of legal fictions is not present enough in the collective consciousness of the legal field anymore. Second, an equally outdated knowledge of the legal field on the nature of the fictionality of literary works such as Maxim Billers novel Esra, or contemporary rap lyrics by Bushido and Fler has had the unfortunate side-effect of leading courts to inadequately adjudicate cases involving fictional practices, resulting in a ubiquitous but unconscious discrimination of members of ethnic minorities that engage in auto-fictional practices as part of their empowerment. By inquiring into the nature and character of these fictions, my project aims at bringing the Laws knowledge on fictionality up to date, hereby also effectively countering the aforementioned two effects.