The Law's Clay

As I pass the midpoint of my three-year journey to a JD degree, I am introducing a third sub-series called “Legal Fictions.” If Fiction’s Prophecy asks how literature helps us see our current political reality, and Poetic Justice traces the lyric currents that unexpectedly surface in judicial opinions when law confronts vulnerability, this series turns to the law’s own imaginative work: the fictions through which it recognizes persons, distributes power, negotiates the tension between harm and care.

At the turn of the nineteenth century, the utilitarian philosopher Jeremy Bentham denounced legal fictions as corrosive deceptions through which the law deceives itself. To Bentham, these fictions “were to law what fraud is to trade”—lies knowingly advanced as truth in order to smuggle illegitimate doctrines into authority. A legal fiction, he wrote, was “a false assertion of a privileged kind,” argued from and acted upon as if it were true.^[1] Courts relied on these devices, Bentham believed, when their reasoning could not otherwise survive rational scrutiny. Fiction was not merely artificial; it was pernicious.

Writing more than a century later, the legal theorist Lon Fuller offered a gentler account. Legal fictions, he suggested, were “false statements recognized as having utility”—convenient scaffolds for a legal system that must sometimes proceed as if something were true in order to function at all.^[2] Fuller rejected Bentham’s accusation of fraud, but the two shared a crucial premise: a legal fiction, however useful, is fundamentally false. But law does not begin with an unmediated truth that fiction later corrupts; it begins with classification, abstraction, and narrative. Legal fictions do not falsify a preexisting world; they actively shape the one we inhabit.

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The word fiction derives from the Latin fictio, rooted in fingere: meaning to shape, mold, or form. That lineage traces back further to the Proto–Indo-European dheigh—a root meaning to knead or build, and shared by words as disparate as dough, figure, and effigy.^[3] Fiction, in its deepest sense, is an act not of deception but of construction. This is clear and obvious in our use of “fiction” to describe a literary genre, a treasured form of writing that reveals relationships and possibilities that would remain invisible without the imaginative energy that kneads and shapes words into a story.

Thus in literature, fiction is a form of truth-telling. Legal fiction can work in a similar way, creating conceptual structures through which institutions recognize subjects, assign responsibility, distribute—or recalibrate—power. The question is not whether a legal fiction is “true” or “false,” but what kind of world it builds—and for whom.

In 1962, legal scholar Christopher Stone argued for an idea that many at the time dismissed as absurd: that trees should have legal standing. They too should have to right to representation, their “day in court.” Trees, critics scoffed, are not part of “we the people.” They cannot speak, reason, or assert rights. Stone’s response was disarmingly simple. Throughout legal history, he observed, new claimants to rights always appear strange at first. Until a rightless thing or being receives legal recognition, we see it only as an object for our use. That blindness is not natural; it is produced by law’s existing categories. (To see this clearly, we have only to look to the histories of wives and slaves as property.) The task of justice, Stone argued, is to expand the law’s imagination—to make visible those whose interests are systematically ignored:

“It is no answer to say that streams and forests cannot have standing because streams and forests cannot speak. Corporations cannot speak either; nor can states, estates, infants, incompetents, municipalities or universities. Lawyers speak for them, as they customarily do for the ordinary citizen with legal problems.”^[4]

In Stone’s view, a tree’s personhood is not a fact of nature.^[5] It is a procedural fiction, a creative invention that enables representation and protection where none previously existed. His proposal does not deny reality, it reshapes it—widening the circle of legal concern.

But the same kind of imaginative power has been deployed to very different ends. Consider the Supreme Court’s infamous 2008 Citizens United ruling.^[6] Corporations had long been treated as “persons” for certain legal purposes—a fiction long ago designed to facilitate commerce and accountability.^[7] In Citizens United, the Court nested a second artifice within the first: the legal fiction that under the First Amendment, money itself constitutes a form of protected speech. This layering of abstraction has had profoundly concrete consequences, allowing vast concentrations of wealth to be converted directly into political power. These two artful fictions—corporate personhood and money-as-speech—now work in tandem to obscure structural inequality while claiming constitutional neutrality.^[8] As Justice Stevens noted in his Citizen’s United dissent, this decision fundamentally altered the democratic process by privileging corporate actors with a magnitude of influence (measured in dollars) unavailable to natural persons, not merely describing a political landscape, but profoundly reengineering it into a state of extreme imbalance.

These are the dual capacities of legal fiction: to extend the horizon of law to include those previously excluded, or to contract that horizon by expand the power of interests already entrenched. Neither move is inherently false; both are constructive acts with real consequences. The law can summon a legal fiction to recognize new forms of vulnerability, or to sanctify asymmetries of power. Legal fictions, born of judicial minds, are not marginal curiosities or technical shortcuts. They are tools that shape law’s clay.

^[1] Jeremy Bentham, A Fragment on Government (1776); see also Jeremy Bentham, The Works of Jeremy Bentham, ed. John Bowring (1843), vol. 5, 92.

^[2] Lon L. Fuller, “Legal Fictions,” 25 Illinois Law Review 363, 369 (1930–1931). Fuller’s essays were later collected in Legal Fictions (1967). His pragmatist framing contrasts with Bentham’s moralism: Fuller viewed fictions as useful “scaffolding” for legal reasoning, not as an inherent corruption.

^[3] Oxford English Dictionary.

^[4] Christopher D. Stone, “Should Trees Have Standing? Toward Legal Rights for Natural Objects,” 45 Southern California Law Review 450, 453 (1972).

^[5] It needs saying Stone’s argument is rooted in the Western Judeo-Christian framework. In the context of Indigenous world views his proposal is not strange at all and is hardly a fiction. The aboriginal people of Australia and New Zealand, for example, have long accepted, without legal artifice, that rivers and trees have rights and deserve representation.

^[6] Citizens United v. Federal Election Commission, 558 U.S. 310, 365 (2010).

^[7] The legal fiction of corporate personhood has its origins in the late-nineteenth century decision Santa Clara County v. Southern Pacific Railroad, 118 U.S. 394 (1886).