From Fiction To Reality: The History, Logic And Future Of Legal Fiction

As a method for the law to reduce social complexity, fiction performs mainly asthe decisiveness fiction on “difference homogenization”. Through fiction, law iscapable to reduce the space and time dilemma caused by the incommensurability oflaw and society, so as to dominate reality with fiction and to reduce complexity withsimplification. As a logic way, fiction also prominently acts in the historical process ofthe formation and development of legal system. In this process, the fiction digests thetwo cores of fabrication and reduction. By establishing a “possible society” andfabricating “difference homogenization”, law is able to get rid of the internal dilemmacaused by the limitation of legal language and legal ambiguity, and also to resolve theexternal dilemma brought by social diversity and changeability. However, the inherentreductionism of fiction contains logical contradiction of “one to many”. Where a“one” can not cope with a “many”, the legal system will exhibit its closed, arbitraryand alienation characteristics, and result in an overall crisis.Historically, legal fiction has different forms. Each country have evolveddifferent legal systems and shaped difference legal ideal. Ancient Chinese legalsystem is based on the integration of family and country, and law acted in accordancewith the relationship of blood. It follows the path of fabricating “society” as “family”.While the Western legal civilization develops based on the integration of market andsociety is built upon the contract spirit. However, both legal fiction history fail to get rid of the shackles of the closure ofthe internal reduction logic. The Chinese style legal fiction in its essence reduces“society” to “family” and social relationship to kinship relationship, which leads to ahomogenization of “complex society”and “family”. As the gene of “family” has beenestablished in the legal system, law has developed to an ethical order. The Westernstyle legal fiction tends to reduce “society” to “city” and social relationship tocontractual relationship, which enables the whole society to have a “contractual”nature. Although performance varies, the kinship legal system and contractual legalsystem both contains the same logic of reduction.From the development of Chinese and West law, such closed reductionism logichas eventually failed to avoid the historical crisis. The traditional Chinese legalsystem led a dangerous law revolution and reform journey finally. The fiction that isoriginated on “family” strangles the social vitality, and therefore revolution andreform was advocated in recent times.The fate of the rule of law in the West also experienced the same ups and downs.Especially in the debate of modernization crisis, people became more aware of legalcrisis underneath the closed reduction logic. The Western society broke out anunprecedented “anti-monopoly” strike, re-embarking on the exploration of freedom,democracy and justice of rule of law.The historical growth of law in China and the West has shown that the traditionallegal fiction has a closed, arbitrary, alienating nature, and therefore it is necessary toprospect a new legal fiction. The new fiction will emphases openness, communicative,and the return of human nature. Only by this way, can the domination of “one” to“many” in the fiction be broken, and the ideal and institution of “many” to “many”and a society of freedom, equality, justice can be eventually constructed.