© Springer International Publishing Switzerland 2015Maksymilian Del Mar and William Twining (eds.)Legal Fictions in Theory and PracticeLaw and Philosophy Library11010.1007/978-3-319-09232-4_4
4. Fuller on Legal Fictions: A Benthamic Perspective
UCL Faculty of Laws, Bentham House, Endsleigh Gardens, WC1H 0EG London, UK
This paper attempts first to explain Bentham’s distinction between a fiction and the name of a fictitious entity, and to relate that distinction to his rationale for the critique of legal fictions. A second goal of the paper is to investigate the tensions involved in Bentham’s ontology and epistemology, and more specifically the tension between the objectivist and subjectivist Bentham. It is argued that Bentham’s objections to legal fictions were traceable to their use in deceptive or fallacious argument, whilst his logic provided a means of rehabilitating the use of the names of those fictitious entities which could be explicated through his technique of paraphrasis (that is, explained in terms of real entities), in relation to which both meaning and truth might be exchanged. In passing, Bentham’s realist and naturalistic conception of truth is contrasted with that of Kelsen, whose own critique of Vaihinger reveals a commitment to a disjunction between fact and value which Bentham could not share, since he sought to ground value in what he took to be natural facts about human beings. It is also argued that Bentham’s discussion of the basis of well-grounded belief anticipates the treatment of the same issue by Peirce. Bentham’s apparent naturalist and realist perspective differs markedly from that of Fuller, who, following Vaihinger, rejects the attempt to replace fiction with truth. There are significant areas of agreement between Bentham and Fuller, on the figurative nature of much language, and even, in certain contexts, on the utility of the self-conscious deployment of fictions. However, in the context of law and morality, it appears that his development of a route to truth through paraphrasis makes Bentham the enemy of fictions, since, in this field at least, truth and utility stand or fall together.
A version of this chapter was previously published as ‘Fuller on Legal Fictions: A Benthamic Perspective’ (2013) 4 International Journal of Law in Context 466–484.
4.1 Fictions and Fictitious Entities
4.1.1 Fuller’s Definition of a Fiction
For Lon Fuller , ‘A fiction is either (1) a statement propounded with a complete or partial consciousness of its falsity , or (2) a false statement recognized as having utility’ (Fuller 1930–1931, p. 369), while a fiction differs from a lie by its freedom from the intention to deceive. Fuller seeks not only to analyze legal fictions, but, informed by the philosophy of Hans Vaihinger , to rehabilitate fictions as necessary and useful elements in human thought. For Vaihinger, it is the fundamental contradiction between the physical world—the chaotic flux of reality as detected by sensation—and the conceptual world—the product of the active thought processes by which the human intellect seeks to grasp, understand and manipulate that world —which renders the use of concepts we know to be false essential to thought (Vaihinger 1925, pp. xiii–xvii).1 In addition, Fuller seeks to provide some answer to the question ‘Are there good and bad fictions, and if so, how do we tell the difference?’ (1930–1931, p. 365) and, again following Vaihinger, indicates that the legitimacy of a fiction depends not on its truth—an incoherent standard when interpreted as correspondence with reality—but on its usefulness, in simplifying and organizing data, and in converting new experiences into familiar terms (1930–1931, pp. 887–895; Vaihinger 1925, pp. 3–4). On this fictionalist account, the central virtues of any theory are explanatory power, capacity to unify observational data, and predictive accuracy (Rosen 2005, p. 14).
4.1.2 Bentham on Fictions and Fictitious Entities
Bentham’s attitude to fictions is somewhat obscured by inconsistencies of expression, and, sometimes, of argument. Thus his references to fictions (especially legal fictions) are mostly harshly critical. However, he too believed that the employment of ‘names of fictitious entities’ is an inevitable feature of every remotely complex language, and he too sought to elaborate rules for their proper use. Bentham contributed to the confusion by occasionally using the noun substantive ‘fiction’ to refer to other specific noun substantives, for instance ‘natural law’ or ‘natural right’ (Bentham 1977, pp. 17, 20, 439–31; 1838–1843, iii. 218–219), but more usually to refer to propositions, consisting at a minimum of a noun substantive, a copula and a predicate. Resolutions of this apparently contradictory attitude to fictions/fictitious entities have been offered by several commentators. For instance, it has been argued that Bentham anticipated the central elements of Vaihinger’s ‘philosophy of the as if’ (Ogden 1932, pp. xxxi–xxxii; Stolzenberg 1999), and that his excoriation of legal fictions was not, therefore, a rejection of fictions per se, since his own logic consisted of a ‘theory of fictions’ in which he is just as dismissive of truth as the goal of theory as Vaihinger is in the ‘philosophy of the as if’. Conversely, Philip Schofield has recently sought to resolve the contradiction by arguing that Bentham’s standard usage of the term fiction applies not to noun substantives, which name entities—whether real, fictitious or fabulous—but to propositions (2006, p. 20). Applied to propositions, the term fiction is closely related in Bentham’s lexicon to the term ‘fallacy’, which he defines as: ‘any arguments that are considered as having been employed or considerations suggested, for the purpose, or with a probability of producing the effect of deception’ (UC ciii. 1 (1838–1843, ii. 379)). Now Bentham certainly attacks legal fictions as deceptious, that is, as supplying the grounds for fallacious reasoning, but he is also clear that ‘fiction—the mode of representation by which the fictitious entities … are dressed up in the garb, and placed upon the level, of real ones’ (UC cii. 23 (1997, p. 84; 1838–1843, viii. 198)), was inevitable in language, and did not necessarily involve the intention to deceive, while there were methods by which fictitious entities might be expounded in ways which eliminated the fiction, and allowed truth and meaning to be exchanged. It will be argued that Bentham’s final position does appear to contain unresolved tensions between a realist and a fictionalist perspective, between, that is, the view that the use of propositions containing fictitious entities might only be legitimized insofar as they could be replaced with propositions containing only real entities, and the view that the sole criterion of legitimacy for the use of fictional constructs was a pragmatic one, namely the degree to which that use generated accurate predictions.
Bentham explicates ‘fictitious entities’ as follows:
By this term is here meant to be designated one of those sorts of objects which, in every language, must for the purposes of discourse be spoken of as existing—be spoken of in the same manner as those objects which really have existence, and to which existence is seriously meant to be ascribed, are spoken of … but without any such design as that of producing any such persuasion as that of their possessing each for itself any separate, or strictly speaking any real existence. (UC cii. 24 (1997, p. 86; 1838–1843, viii. 198) emphasis added)
Bentham contrasts fictitious entities with real entities, which, unsurprisingly, he defines as ‘an entity to which, on the occasion and for the purpose of discourse, existence is really meant to be ascribed’ (UC cii. 16 (1997, p. 164; 1838–1843, viii. 196)).
Bentham is also less than clear in his treatment of the category of real entities. Sometimes, he states that the only real entities are substances:
The only objects that really exist are substances. They are the only real entities. To convey any notion by words which are the names of any objects [other] than substances, we are obliged to attribute to such objects what in truth is attributable only to substances: in a word we are obliged to feign them to be substances. These others, in short, are only fictitious entities. (UC clix. 241)2
Elsewhere, he states that the only entities whose reality we perceive directly are the mental phenomena to which our experience of the external world gives rise, that is sensations and impressions. Bentham never seems to have resolved the tensions between these two views, between an objectivist and a subjectivist perspective. Thus, on the one hand, he wastes no time in accepting the reality of the external world, on the basis that no bad consequences could follow from such acceptance, in contrast to the pain quickly imposed by the physical sanction if we act, for instance, on a philosophical denial that the wall in front of us exists (UC cii. 15 (1997, p. 182; 1838–1843, viii. 197)). On the other hand, the subjectivist Bentham asserts that all knowledge of the external universe comes to human beings through the mediation of their sensory experience, while the only entities they perceive directly are the mental events detected by sensation and perception, so that the existence of material objects is properly speaking inferential (UC cii. 15 (1997, p. 180 (1838–1843, viii. 196)); see also 1983a, p. 271n): we conclude that the wall exists because we make highly plausible, but by no means indefeasible inferences from the sensory data delivered by sight and touch. On this view, given that no-one has direct access to any perceptions or sensations which are not internal to their own mind, each of us lives in an irreducibly private reality.
Schofield argues that Bentham’s final position is that it is ‘more straightforward’ to view corporeal substances as the only perceptible real entities (2006, p. 16), but the passage he relies on explicitly limits itself to the category of ‘substances’, within which only corporeal substances are perceptible, while alleged incorporeal substances, such as souls and God, are at best inferential (UC cii. 15 (1997, pp. 180; 1838–1843, viii. 196)). Indeed, if sensations like pleasure and pain were to fail to qualify as real entities, the entire utilitarian project would fail to get off the ground. For her part, Stolzenberg argues that Bentham introduced the distinction between real and fictitious entities only to subvert it immediately: ‘the category of the fictitious effectively swallows up the domain of the real by the time Bentham finishes his analysis’ (1999, p. 239). She dismisses Bentham’s statements that real entities exist, and that we can exchange truth in relation to them, on the basis that such passages are ‘more than offset’ by the combination of his assertion that the reality of substances is, strictly speaking, inferential, and her own assertion (which Bentham explicitly contradicts) that he regarded perceptions and ideas as ‘the paradigmatic fictions’ (1999, pp. 241–242). Further discussion of the difficulties with this interpretation will be undertaken in due course, but, even given Bentham’s inconsistencies on this topic, it would surely be quite remarkable for a writer as pre-occupied with clarity as he to state his position in such an esoteric fashion, that is by insisting on the importance of ‘the comprehensive and instructive distinction—between real entities and fictitious entities: or rather between their respective names’ (UC ci. pp. 341; 1838–1843, viii. 262), which he actually regards as no distinction at all.
It is true that the division between real and fictitious entities occurs entirely within language, but the fundamental linguistic distinction between names which have referents in the world, and names which have no such referents, nevertheless reflects, for Bentham, an ontological distinction between things which exist, and things which do not. ‘What I assume then, is that of the objects, the things, we are in use to speak of, some do, others do not exist. Those which do exist may be said to have their archetypes in nature: those which do not exist may be said not to have their archetypes in nature’ (UC lxix. 52). Jackson is quite correct in asserting that for Bentham the reality attributed to real entities ‘is a discursive construction: a claim to reality made within discourse’ (1998, p. 498), but that simply reflects the fact that language is the only instrument by which humans can communicate any assertions, and that that instrument very often misdescribes the world.3 Whilst the world really exists, the names ‘reality’ and ‘existence’ are, for Bentham, names of fictitious entities (UC cii. p. 74 (1997, p. 150; 1838–1843, viii. 210)), substantified linguistic labels, which do not refer to actually existing phenomena.
One solution to the paradox is to accept the reality of both substances and sensations, and to hope that, for the most part, there will be a correspondence between the reality of the external world and our perception of it, and this appears to be Bentham’s preferred solution: ‘Entities are either physical or psychical. Physical are either real or fictitious. Psychical again are either real or fictitious: real psychical are either present to perception, i.e. impressions, or present to memory, i.e. ideas’ (UC ci. p. 347 (1838–1843, viii. 267)). If this is correct, Bentham is in fact anxious to retain both objective and subjective elements in his epistemology and ontology. The only resources available to us in discovering the objectively existing world are sense experience and reflection on it (UC ci. 183 (1838–1843, viii. 238)). Substances (real entities) deposit impressions (real entities) on human sense organs (real entities), which impressions we can recall with a reasonable degree of accuracy. If our sense perceptions do indeed deliver reliable information about the world, we can know reality when it comes to real entities.
Bentham is, however, careful to add a caveat that the correspondence between reality and perception will not be entire, since it is possible for us to be mistaken in our interpretation of sensory data, while that possibility reveals once more the inferential nature of our knowledge of the external world , which depends not simply on passive perception, but active judgement:
When perception has place, the source or perceptible object from whence it is derived being an individual portion of matter—a real, corporeal entity … impressions are at the time in question made on sense: on some one or more or all of the senses, to the cognizance of which the object stands exposed: of the perception thereupon obtained these impressions are the immediate object and subject: the body itself—i.e. the existence of it, is but, in a secondary and comparatively remote way, the object or subject of perception: of this supposed source of the perceptions that are experienced, the existence is, strictly speaking, rather a subject of inference than of perception: of inference, judgment, ratiocination, which is liable to be erroneous, and in experience is very frequently found to be so.
Scarce does a perception take place, but it is accompanied … with a corresponding judgment or act of the judicial faculty. (UC ci. 118 (1838–1843, viii. 224)).
The subjectivist nature of our engagement with the world, combined with the need to communicate with our fellows, explains the inevitable deployment of fictitious entities in language, the tool of both communication and thought itself. The subject of the earliest communications for Bentham were really existing objects, while in referring to such objects we were aided by the unambiguous link between the object, the name by which we designated it, and its idea , that is its mental image. If we were standing together and could both see, we could disambiguate our referents simply by pointing at them. If we no longer have sight of the referent, I must rely on the ability of its name to call forth its idea in your mind. ‘A proper substantive, the name of a real entity, is understood immediately and of itself, it offers a certain image to the conception. An improper substantive offers no such image. Of itself it has no meaning’ (UC lxix. 229). Such designation, the beginning of both language and logic, became embedded in the structure of language and thought, so that ‘a material image is the only instrument by which, the only medium through which, conceptions can be conveyed from mind to mind’ (UC cii. 463). Because of this connection, encountering a name gives rise to the expectation of a corresponding thing:
Words, viz. words employed to serve as names, being the only instruments by which, in the absence of the things, viz. the substances, themselves, the ideas of them can be presented to the mind, hence, wheresoever a word is seen which to appearance is employed in the character of a name, a natural and abundantly extensive consequence is—a disposition and propensity to suppose the existence, the real existence, … of a correspondent thing—of a thing to which it ministers in the character of a name (UC ci. 341 (1838–1843, viii. 262)).
Such an expectation, however, is founded on a fundamental error, since in every language the majority of noun substantives do not name existing things (UC ci. 340 (1838–1843, viii. 262)). The symbol system that is language is a construction of the human mind, and the moment it evolves beyond the declaration of desire or aversion towards particular real objects, it necessarily ascribes existence to things which have none.
4.1.3 Similarities and Differences Between Bentham and Fuller (and Vaihinger)
Bentham , Fuller and Vaihinger would all agree that it is indeed impossible for language strictly to mirror the world, while to demand that it should is to demand the reduction of human capacity to communicate verbally to the level of animals unable to form abstract concepts (UC cii. 23 (1997, p. 84; 1838–1843, viii. 198)). Bentham asserts that all language which deploys the names of anything other than real entities is figurative, or metaphorical (UC cii. 466 (1838–1843, viii. 331)). As such, the propositions it contains are fictions (UC cii. 23 (1997, p. 84; 1838–1843, viii. 198)), that is, they are strictly speaking falsehoods, which seem to assert the existence of things which do not exist. Thus far, Bentham appears to anticipate the insights of Vaihinger , and thence of Fuller: ‘All the language of abstract thought is metaphorical’ (Fuller 1930–1931, p. 374).
If we want to exchange meaning about fictitious entities, that is, broadly, about abstract terms, the easiest way is to speak as if they were physical objects, even though this is a misdescription. It is this metaphorical substantification of the immaterial which gives rise to confusion, since it is seen everywhere in language, whether in the constructions ‘in motion’, ‘at rest’, or in the naming of properties or qualities: apples exist, many apples are ripe, but ripeness is a fictitious entity which we locate in ripe apples (Bentham, UC cii. 461–465 (1838–1843, viii. 330–331)).4 The logical analysis by which ‘ripeness’ is first abstracted from the real apple, then designated as a noun substantive in its own right, and then attributed to other similarly coloured objects itself abounds in fictions, false propositions about the world, since ripeness relies on the existence of real objects in which it might inhere, and has no independent existence. Bentham certainly anticipates Vaihinger in regarding many of the basic categories with which thought seeks to understand the world as fictitious entities (Bentham, UC cii. 35–56 (1997, pp. 88–120 (1838–1843, viii. 199–206)); Vaihinger 1925, pp. 157–166). However, while they both regard qualities as fictitious, for Bentham, the particular bodies to which qualities are attributed are impeccably real (UC cii. 461 (1838–1843, viii. 330); 1983a, p. 262). For Vaihinger and for Fuller, conversely, there is nothing apart from its qualities, while both are equally fictions: ‘By adding a Thing to which sensations are supposed to adhere as attributes, thought commits a very serious error’ (Vaihinger 1925, p. 167; see also Fuller 1930–1931, 883).
For all three thinkers, fictitious entities are useful, they permit the exchange of complex and subtle information relating to the exterior world, even though they do not, in themselves, designate actually existing objects. No project which sought to cleanse language of fictitious entities could succeed, since fictitious entities are essential not only to all except the most basic communication, but also, since language is the medium for thought, and constrains thought, to all except the most basic thought. Thus no discussion of qualities can occur without the false assertion of the existence of the quality, no discussion of mental acts can occur without the substantification of the mind and its faculties, that is the pretence that motive, disposition and a host of other fictitious entities are really existing objects.
To say that, in discourse, fictitious language ought never, on any occasion, to be employed, would be as much as to say that no discourse in the subject of which operations, or affections, or other phenomena of the mind are included, ought ever to be held: for no ideas being ever to be found in it which have not their origin in sense, matter is the only direct subject of any portion of verbal discourse; on the occasion and for the purpose of the discourse, the mind is all along considered and spoken of as if it were a mass of matter: and it is only in the way of fiction that when applied to any operation, or affection of the mind, anything that is said is either true or false. (1983a, pp. 371–372)
4.1.4 The Central Disagreement: Bentham’s Rehabilitation of Fictitious Propositions by Their Exposition in Terms of Real Entities
Language may indeed be ‘an instrument for the communication of thought from one mind to another’ (UC cii. 456 (1838–1843, viii. 329)), but language, because of the unavoidable employment of names of fictitious entities as if they were real entities, is necessarily littered with falsehoods: ‘Pure from all moral turpitude, deception, though so frequently … not being, unless by accident, the object of it, this falshood … notwithstanding all of those inconveniences of which in respect of clearness of conception it is so apt to be productive, is interwoven with the very essence of language’ (UC cii. 463). Again, Vaihinger and Fuller would agree, but here emerges the crucial difference between Bentham’s view and theirs, which concerns the degree to which, and the manner in which, such falsehood can be removed from language.
Because fictitious entities are not associated with images which correspond to substances, they possess no obvious shared meaning. Insofar as propositions including such entities can have any meaning, it is only a connection with real entities which can bestow it. Fortunately, such connections are available for the set of words (right, obligation, power, title) which constitute the currency of law, and Bentham’s method for explicating those entities, the combination of the processes of phraseoplerosis and paraphrasis, consists precisely in making those connections explicit. Taken singly, the name obligation has no referents in the external world , and means nothing. It is true that, as for all fictitious entities, any images associated with propositions employing its name derive from images of real entities in the external world, whilst those images are sometimes discoverable through a third process of archetypation, which in this case reveals the original referent of obligation in the image of a man tied up (Bentham 1983a, p. 272n).5 However, in order to make sense of the term, it is necessary first to include it in a proposition (phraseoplerosis), and then to substitute for that proposition another which replaces the fictitious entity with a real one (paraphrasis) (UC cii. 217 (1838–1843, viii. 246); UC lxix. 221; 1983a, p. 272n.). In the paraphrasis of normative abstractions, the real entities which do the heavy lifting are the sensations of pleasure and pain. Harrison notes that the difficulty involved here concerns the criteria according to which we are to conclude that the substituted proposition possesses the same meaning as the original (1983, p. 68), and concludes, quite correctly, that for Bentham it is simply impossible to compare the import of the two, since the first proposition, like the term itself, has no cognoscible meaning, but is simply nonsense. ‘The options are either nonsense or taking it to mean what the analysis says: there is no separate way of understanding it’ (Harrison 1983, p. 72). Or, with Bentham:
Nothing has no properties. A fictitious entity, being as this its name imports—being, by the very supposition , a mere nothing, can not of itself have any properties: no proposition by which any property is ascribed to it can therefore be in itself and of itself a true one, nor therefore an instructive one: whatsoever of truth is capable of belonging to it can not belong to it in any other character than that of the representative of—the intended and supposed equivalent and adequate succedaneum of—some proposition having for its subject some real entity (UC cii. 217 (1838–1843, viii. 246)).6
Paraphrasis provides Bentham’s standard answer to Fuller’s question concerning the difference between good and bad fictions. All propositions concerning fictitious entities are, in Bentham’s terms, fictions—they appear to assert the existence of something which has no existence. However, paraphrasis offers the means to rehabilitate fictitious entities, by their exposition in terms of real entities. As will be discussed in § III, there are occasions on which Bentham allows for the utility of fictitious entities, and the fictions asserted in propositions containing them, which are not resolvable by paraphrasis, but on most occasions he insists that paraphrasis is the only route to making sense of fictitious entities (UC lxix. 221; UC ci. 217 (1838–1843, viii. 246); 1977, p. 495n; 1983b, pp. 74–75; 1838–1843, iii. 286, 594n), so that a good or useful fictitious entity is either one which can be explicated by paraphrasis, or a species of a generic fictitious entity which is itself capable of such exposition.
Fuller once more follows Vaihinger in recommending the deployment of fictions in the form of metaphorical representations, in full awareness that ‘the fiction must drop out of the final reckoning’ (Fuller 1930–1931, p. 895; see also Vaihinger 1925, p. 68, 69, 98, 104, 109, 177). This recommendation bears comparison with Bentham’s solution to the semantic problems arising from the fact that fictitious entities have no physical existence. For Bentham, if the fictitious entity has been successfully subjected to paraphrasis, there is in fact no need to eliminate it, as long as the speaker can supply on demand an exposition in terms of real entities (Bentham 1983a, p. 373). Paraphrasis rehabilitates fictitious entities precisely by eliminating the fiction—the assertion that the fictitious entity has real, independent existence—involved in propositions which contain them. One of Bentham’s early projects was to develop a lexicon of legal and political terms (Bentham, UC lxix. 134), the availability of which would save legislators from the requirement to replace all fictitious terms with their paraphrastic exposition every time they were used in law.
A significant disagreement between Fuller and Bentham appears when the former approvingly cites Holmes’ reference to the ‘metaphor’ by which ‘“legal duty” becomes simply “a prediction that if a man does or omits certain things he will be made to suffer in this or that way by the judgment of the court”’ (Fuller 1930–1931, pp. 894–895). For Bentham, this is precisely not metaphor, but a less than perfect example of paraphrasis, that is, the explication of the term legal duty by the provision of a phrase which refers—albeit only implicitly—to the real entity pain. Insofar as the notion of legal duty can possess any meaning at all, Holmes’ ‘metaphor’ has expressed it well enough. What Fuller takes to be a neglective fiction, a simplifying theoretical operation serving to focus investigation by ignoring all but one aspect of a phenomenon, Bentham views as delivering the truth―the observable, empirically testable truth―via the substitution of discussion of real entities for that of fictitious ones. For the most part, then, Bentham asserts that paraphrasis alone permits access to both meaning and truth in relation to fictitious entities, whereas for Fuller and Vaihinger , to believe that truth can be spoken in relation to fictions is to be committed to a fool’s errand. Neither Fuller nor Vaihinger discuss Bentham’s logic in any depth, or recognize the importance he attached to paraphrasis as the key to exposition of fictitious entities. Vaihinger omits all mention of Bentham’s logic, and his discussion of Bentham is limited to a brief consideration of whether he viewed the assumption that all human motivation was self-interested as a fiction—a self-consciously false but theoretically useful simplification—or as an hypothesis—an empirically testable assertion—which concludes that Bentham failed to appreciate the difference between the two (Vaihinger 1925, pp. 187–188).
It is a similar failure to take the slightest cognizance of paraphrasis (the utter failure, that is, to address Bentham’s apparatus for speaking truly or comprehensibly about fictitious entities) which undermines Stolzenberg’s interpretation (1999). As noted above, Stolzenberg wastes no time in dismissing Bentham’s statements that real entities do exist, and that truth can be spoken about them, on the basis that such statements are contained in passages which do not fit with Bentham’s core understanding . However, these statements by Bentham, and his assertion that the key to the legitimate use of fictitious entities lies in their explication in terms of real entities, are emphatically not contained in one or two isolated passages, but constitute the bulk of the textual evidence. If Bentham thinks that there is no possibility of exchanging truth, why does he insist repeatedly that there is, straightforwardly in relation to real entities (1983b, p. 74; UC ci. 217 (1838–1843, viii. 246); UC cii. 302 (1838–1843, viii. 300); UC lxix. 241; 1838–1843, iii. 189; 1838–1843, vii. 81), and, in relation to fictitious entities, via their analysis in terms of real ones (1983a, pp. 271–272n; 1983b, pp. 74–75; UC ci. 217 (1838–1843, viii. 246); UC lxix. 221)? What is it that he thinks is gained by the process? Most tellingly perhaps, if Bentham were to accept that there were no ontological distinction between real and fictitious entities, he would be denying to utilitarianism its most effective weapon in the struggle with competing moral theories. Thus the superiority of the principle of utility over its major competitor, the principle of sympathy and antipathy, or ipse-dixitism, consisted precisely in the reliance of its conclusions on matters of fact, that is, on the real entities constituted by pleasure and pain.7 To abolish the distinction between real and fictitious entities is to reduce Bentham, in his own terms, to just one more ipse-dixitist.
4.1.5 A Crude Taxonomy, and the Foundation of Bentham’s Hostility to Legal Fictions
If fictitious entities are capable of rehabilitation through their connection with really existing entities, why does Bentham become so exercised about the use of fictions in law and politics? Fuller poses the question of how a lie, which even its purveyors admitted to be a lie, could deceive anyone, and thereby lead to the consequences which Bentham asserts to issue from its use (Fuller 1930–1931, p. 519). Isn’t Bentham simply being carried away by his animus against the legal profession, and investing fiction with a magical power which in fact it lacks?