Staging Law's Existence: Using Pretense Theory to Explain the Fiction of Legal Validity

• Published date: 01 March 2016
• Author: Olaf Tans
• DOI: http://doi.org/10.1111/raju.12117
• Date: 01 March 2016

Staging Law’s Existence:

Using Pretense Theory to Explain

the Fiction of Legal Validity

OLAF TANS*

1. Introduction

In various ways legal scholars have developed the theory that there is something

imaginary about the legal realm. Building on Hans Vaihingher’s philosophy of the

“as-if,” for instance, Kelsen (2015, 22) has argued that legal norms, and more gener-

ally the world of the ought, can be seen as “imaginative products of the human

mind.” In an attempt to grasp this mystical realm of the ought, MacCormick and

Weinberger (1986, 10) have put forward the theory that legal existence is a matter of

institutional fact. As opposed to the physical world, the realm of law is composed

of facts that may be stated as true “in virtue of an interpretation of what happens in

the world, an interpretation of events in the light of human practices and normative

rules.” Whereas these authors stress that there is something very real about institu-

tional legal facts, in the sense that they can actually guide behaviour, others bring

us back to their imaginary nature. Ruiter (1997, 363), for example, states: “It is

important to see that a legal institution is in the first instance a fiction that is subse-

quently realized by people believing in it and acting upon this belief.” A recent vol-

ume edited by Del Mar and Twining (2015), finally, illustrates how much

contemporary legal science is still strugglingto grasp law’s imaginary nature.

This contribution defends the claim that, in order to get a better grip on law’s

imaginary nature, legal theory can profit from a strand of thought—here labelled

pretense theory—that explains and analyses how people act upon a belief that some-

thing fictional is the case. This claim is premised on the conviction that the afore-

mentioned and other studies tend to deal with the matter analytically—focusing for

instance on logical and linguistic aspects. This yields important insights, but it turns

* Olaf Tans works as legal philosopher andpolitical scientist at AmsterdamUniversity College

(AUC) and theCentre for the Politics of Transnational Law (CePTL).Many thanks to Louise Vig-

eant, Marco de Waard, Bertjan Wolthuis, Hans Lindahl, Rob Schwitters, Ren

e Brouwer, Martin

van Hees, Wouter Werner,Sanne Taekema, Christian Krijnen, DickRuiter, Juan Amaya-Castro,

and the anonymousreferees for their usefulcomments on earlier versionsof this article.

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Ratio Juris. Vol. 29 No. 1 March 2016 (136–154)

law’s imaginary existence into a relatively static property of propositions and utter-

ances, rather than something that we can see playing a role in legal ordering as a

result of human agency. In other words, as it stands, legal theory is not optimally

sensitive to the fact that fictions are vehicles of the act of fiction-making, something

people do in order to generate some sort of effect. To gain a more dynamic and

action-oriented insight, pretense theory will be used to outline a picture of both the

nature and the underlying mechanisms of law’s imaginary existence. If there is a fic-

tional element in law, then what do legal practitioners imagine, and how?

By analysing this fictional element, this contribution aims to bring a new per-

spective to a debate at the heart of legal theory about the question, as Dworkin

(1986) puts it, as to whether there is a test of pedigree that makes it possible to

identify law. This debate is wide-ranging and varied, and as such it is almost

impossible to do it justice within the length of one article. Focussing on the theory

of the rule of recognition, it will nevertheless be argued that a pretense-theory-

based reconstruction can help to cast theories about law’s epistemological founda-

tion in a new light. On the one hand, it cannot be denied that the many attempts,

mostly associated with legal positivism, to base legal knowledge on a test of pedi-

gree are vulnerable to many challenges. Looking at legal reasoning, it is simply

very difficult to uphold the theory that there is a conceptual unity behind the wide

array of discursive manoeuvres that legal practitioners make to defend and grant

legal claims. On the other hand, it cannot be denied that it is almost impossible to

defend claims in a deliberative environment without recourse to some sort of epis-

temological foundation. More precisely, it will be argued that, no matter how

unconvincing it may be in its attempt to ground knowledge, the practical nature of

legal reasoning seems to require participants to pretend that their claims are episte-

mologically founded. In this way, this contribution advocates a “performative

turn” in theorizing law’s normative mode of existence, i.e., its validity.

More concretely the line of argument runs as follows. The paper will examine

what it means to call something a fiction, and what the fictional aspect of legal prac-

tice amounts to: a fictitious out-thereness. Then two theoretical viewpoints will be

discussed to argue that they provide useful building blocks for a better understand-

ing. The pragmatic approach makes clear how the use of fiction, including in law,

may be instrumental to achieving certain goals. Moreover, the theory of mutual

belief in a rule of recognition will be discussed to demonstrate how law’s fictitious

out-thereness can be seen as a result of a coordination game in which players come

to believe in the fiction on the basis of rational (calculated, optimizing) action. How-

ever, whereas these approaches provide crucial insights, they do not capture the

legal fiction in its social context: a predominantly discursive reality in which human

beings make use of the artefact “law” to establish order. Pretense theory will be put

forward as a worthy addition, in that it sees the use of fiction as a sociopsychological

process involving certain roles, attitudes, and rules. This theory will be applied to

reconstruct law’s imaginary existence as an interactive game of make-believe, which

will in turn shed new light on the debate about law’s epistemological foundation.

2. Law’s Imaginary Existence: A Fictitious Out-thereness

Although the precise nature of law’s imaginary existence will be refined in the

course of this contribution, it is advisable to provide a preliminary sketch of the

Staging Law’s Existence 137

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