Legal Fictions as the Law’s Original ‘Post-Truth’ State

Abstract

As an institution, the law is deeply concerned with the management of information. So much of the law and its processes involve obligations to reveal information, to keep it secret, and in litigation in particular, to locate information as truth. The law thus creates, and through its power enforces, its own truth. While this occurs inevitably through court processes, it takes place also in the substantive law through frequent recourse to legal fictions: assertions accepted as true for legal purposes, but which may be untrue or unproven. Through legal fictions and its counterpart legal artifice, the common law has always operated outside ‘truth’. For these purposes, we contend that the law has been ‘post-truth’ all along, with consequences for the centralisation of power in the colonial state.In this panel discussion, we draw together the legal fiction of terra nullius and the legal artifice of universal subjecthood in three, related contexts, to illustrate the implication of the law in ignoring truth in the interests of power. In particular, we establish how the law has overlooked truth to serve, and continue to serve, the personal and political interests of the coloniser through shoring up sovereignty, property, and political rights. We end on a hopeful note, suggesting that in addressing the reality of a post-truth world, the common law must itself finally jettison the colonial relics that are the State’s founding fictions.<br/