Legal Fictions in Various Forms of Victim Participation

Modern, Western schools of thought favoring reason put ‘fiction’ in bad light. However, fictions are unavoidable elements of the way we shape our everyday lives, our political and legal institutions, and the models we deploy in social science. Employing useful untruths in the setting of legal institutions (i.e., legal fictions) is inevitable. At the same time, noting this inevitability does not relieve us of the obligation to be aware of employed legal fictions and to regularly review their usefulness in the current framework. To this end, questions such as “what legal fictions do we actually employ,” “for whom are they useful?” and “what are the conditions for that usefulness?” should be discussed. This paper points to three legal fictions—retribution as punishment; the outcome as a return; and the adversarial nature of victim participation—and questions whether they are useful if viewed through a victimological lens.