chapter  II
16 Pages

The Pestilential Breath of Fiction

In this chapter the operation of such legal and also other more general fictions will be described, and Bentham’s criticisms examined. Such criticisms lead to other, more fundamental, problems of justification which will be looked at later. Bentham, in his criticism, is supposing that there is, in principle, a way in which things can be made ideally clear and so described really as they are without any trace of fiction. This metaphysical presupposition of the possibility in principle of an ideal analysis will form the centre of the next chapter. However, even if we assume such clarification is possible, there is still another problem about the foundation or justification of what Bentham is doing in his attempt to eliminate fictions. For if his starting point was truth, the desirability of true belief, then there would be no problem about the point of the elimination of fictions or falsehoods. Yet, if Bentham’s starting point in justification is the desirability of the principle of utility, that is with welfare rather than with truth, then the problem of why it is appropriate to eliminate fiction reappears. Perhaps it does not always have good consequences to believe the truth; perhaps fictions have utility. Bentham, in the Fragment on Government, criticises his

target Blackstone both for his failure to adopt the right critical attitude and for inaccuracy in exposition, thinking that it was ‘no wonder’ that someone exhibiting the one defect should exhibit the other (404). Yet it is not obvious that someone might not have the right affections and yet cloudy understanding, or clear understanding and disreputable affections. However intimate the connection between an interest in clarity and an interest in welfare, it is at best contingent.