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

Kate Galloway, Melissa Castan, Dani Larkin

Research output: Contribution to conferencePresentationResearch

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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.

Original languageEnglish
Publication statusPublished - 5 Jul 2019
EventAustralasian Law Academics Annual Conference 2019: 'Real' Laws in a Post-Truth World - Southern Cross University, Gold Coast, Australia
Duration: 4 Jul 20195 Jul 2019
https://www.alaaconference.com.au/

Conference

ConferenceAustralasian Law Academics Annual Conference 2019
CountryAustralia
CityGold Coast
Period4/07/195/07/19
Other‘Real’ Laws in the Post-Truth World and was chosen to engage and question emerging dialogues on ‘post-truth’ – their influence on policy and social debate, and how post-truth practices are shaping laws and how truth is and isn’t part of legal and socio-legal dialogues. We intend this theme to provoke questions on whether we should and how we might reinscribe law in post-truth spaces, whether and how laws should be deconstructed, de-centred, and de-colonised, and whether or not our diversity can unite and guide us to reimagine our collective futures.

​The Conference Committee is also proud to be hosting this year’s event as it will be the formal launch of our renamed and restructured legal academic’s association. As resolved at the 2018 ALTA AGM held during last year’s wonderful Australasian Law Teachers Association Conference at Curtin University, ALTA is being relaunched as the Australasian Law Academics Association (ALAA). This conference, the very first ALAA conference, will continue to provide a supportive environment for law academics to present papers on their areas of their scholarship in teaching and research, as well as a great place to develop networks and friendships with other legal academics within Australasia.​

On behalf of SCU’s Conference Committee, we trust all delegates will have an intellectually stimulating and enjoyable time at this year’s conference. We are looking forward to welcoming you to the beautiful southern part of the Gold Coast this July.
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Law
common law
political right
political interest
recourse
centralization
right of ownership
sovereignty
obligation
management

Cite this

Galloway, K., Castan, M., & Larkin, D. (2019). Legal Fictions as the Law’s Original ‘Post-Truth’ State. Australasian Law Academics Annual Conference 2019, Gold Coast, Australia.
Galloway, Kate ; Castan, Melissa ; Larkin, Dani. / Legal Fictions as the Law’s Original ‘Post-Truth’ State. Australasian Law Academics Annual Conference 2019, Gold Coast, Australia.
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Galloway, K, Castan, M & Larkin, D 2019, 'Legal Fictions as the Law’s Original ‘Post-Truth’ State' Australasian Law Academics Annual Conference 2019, Gold Coast, Australia, 4/07/19 - 5/07/19, .

Legal Fictions as the Law’s Original ‘Post-Truth’ State. / Galloway, Kate; Castan, Melissa; Larkin, Dani.

2019. Australasian Law Academics Annual Conference 2019, Gold Coast, Australia.

Research output: Contribution to conferencePresentationResearch

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AB - 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.

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Galloway K, Castan M, Larkin D. Legal Fictions as the Law’s Original ‘Post-Truth’ State. 2019. Australasian Law Academics Annual Conference 2019, Gold Coast, Australia.