Legal fictions in East Asia: Recovering a forgotten mode of judge-centered jurisprudence

Abstract

In much of Western legal historical scholarship, legal fictions are understood to be devices for maintaining the integrity of text-based legal codes in the face of social change. However, while legal fictions as such were not a topic of scholarly inquiry in East Asia prior to the introduction of the concept from the West, East Asia is nevertheless rich in examples of another kind of legal fiction: jurisprudential legal fictions, or legal fictions effected by judges and rooted in culture (often including religion). The mythical, moral xiezhi beast in ancient China, and judge-centered moral reasoning in pre-modern Japan, point to legal fictions beyond the traditional categories of such in much of Western scholarship, as well as to legal fictions within the West now largely forgotten after the advent of Enlightenment thinking on textual law.