From narrative to fiction in legal theory and practice

Theorizing fictional discourse: Toward a reassessment of the fact–fiction dichotomy in legal theory and practice

From narrative to fiction in legal theory and practice

legal fictionality. Indeed, in the history of legal theory' and praetice, a substantial number of authors have already addressed the issue. The discussion on legal fictionality, however, usually stays confined within the disciplinary’ borders, rarely' reaching out to involve literary' criticism, or the other proponent in nowadays’ debate on fictionality', analytic philosophy. Within its disciplinary’ confines, there furthermore has been an unfortunate tendency to see fictionality' as an issue best eliminated.

It is especially the practice of the so-called “legal fictions”, dating back to Roman law, which has been subject to a harsh criticism throughout the ages. “[T]hat a son killed in battle is supposed to live forever for the benefit of his parents; and that [...] captives, when freed from bondage, were held to have never been prisoners, and such as died in captivity were supposed to have died in their own country'” are Blackstone’s examples of fictions already' “adopted and encouraged in Roman law”.⁵ That “[fjictions permeate archaic procedure” can be further demonstrated by a number of examples: a foreigner could sue under the fiction of citizenship, the purchaser of an insolvent estate could sue on a fiction that he was heir,⁶ and a fictitious sale could not only be used to substitute a will, but could also serve in the emancipation of a son in potestas, as well as “to enable a woman to get rid of a guardian”.⁷ And it is the practice of procedural fictions to which our present vocabulary' stills owes the names of “John Doe” and “Richard Roe”.⁸

In his 1910 publication The Nature and Sources of the Law, John Gray' does not fail to mention two “absurd” examples:

The most grotesque of these fictions was that by' which, for the purpose of giving a remedy in England for a wrong done in the Mediterranean, it was alleged that the Island of Minorca was at London, in the parish of St. Mary' Le Bow in the Ward of Cheap; and yet, perhaps, the palm must be given to that fiction of the United States Federal Courts that all the stockholders in a corporation are citizens of the State which incorporates it.⁹

“In a discipline primarily concerned with issues of fact and responsibility', the notion of a legal fiction should seem an anathema, or at the very’ least, the ill-suited means to promote a just result”, a scholarly essay' recently stated,¹⁰ mirroring Hans Kelsen’s 1919 dictum that “in the realm of science [...] a fiction can be nothing but an impermissible, fully useless, and solely harmful lapse”.¹¹ In Jurisprudence, Roscoe Pound characterized legal fictions as rudiments of legal past, which were proper at the time, and should even be considered as “the first agency through which the traditional element of a legal system is enabled to grow”, but which shall be overcome in a mature system of law.¹² John Gray, while assuming that some types of fictions do serve a legitimate purpose,¹³ follows Henry Maine in the conviction that fictions can quickly' exhaust their purpose: ¹⁴

Fictions are scaffolding, - useful, almost necessary, in construction, - but, after the building is erected, serving only to obscure it.¹⁵

While Ernst Zitelmann compares legal fictions to the veil of Isis, which was only required for those eyes not yet strong enough to gaze at the truth,¹⁶ in his 1865 treatise on law, Rudolf von Jhering characterized legal fictions as “white lies” and “crutches”¹⁷ that, at a certain stage of the evolution of law, need to be overcome:

Even' fiction should sene the [legal] science as a reminder to rid itself from it, since with every fiction, it admits to an imperfect solution of a problem.¹⁸

Drawing on Bouvier’s understanding of legal fictionality as denial of “plain matters of fact”, a scholar in the 1910 Michigan Law Review explains:

In the age of fact, fancy is at a discount. Consequently legal fictions, which required the play of some fancy in their beginning, have fallen not only into disuse but also into disfavor.¹⁹

Similar attitudes are threaded throughout the history' of the discipline, with Jeremy Bentham having arguably formulated the harshest criticism of the “pestilential breath of fiction”,²⁰ an “opiate”²¹ and “syphilis” which “runs in every' vein, and carries into every’ part of the system” of English Law.²² It is not counterfactuality per se, but the stain of weakness and illegitimacy that Bentham denounces in this context:

A fiction of law may be defined a willful falsehood, having for its object the stealing legislative power by and for hands which could not, or durst not, openly' claim it.²³

Within the long history' of legal fictionality', Bentham’s harsh criticism belongs to the “newer” voices, however, since in Philippe de Renusson’s treatise on law, published in 1733, attacks on legal fictionality' were already considered to be commonplace.²⁴

In light of the above criticism, it must be surprising that legal fictions nevertheless have been and still are ubiquitous, and the reason for this for sure is their well-proven expediency. Blackstone already' noted that legal fictions, “though at first [...] may startle the student”, will inevitably' be found “highly beneficial and useful”,²⁵ Jhering listed legal fictions as effective “means of legal economy”,²⁶ and Kuntze even called them the “nourishment” that fueled the constantly' growing “organism” of law.²⁷ For Henry' Maine,²⁸ legal fictions were “invaluable expedients for overcoming the rigidity' of law,” which do not only aim at securing that rules are “judicially administrable”, but furthermore ensure the “acceptability' of a decision” within a general public.²⁹

Maine’s contemporary Oskar Billow has also commented on legal fictions, now as a “psychological technique” that enhances the vividness of intellectual conception and facilitated the intellectual permeation of abstract messages,³⁰ and Lon Fuller later lists the function of “keeping the law persuasive”.³¹ But not only functionalist considerations seem to lie at the root of legal fictionality' as a long institutionalized practice. Despite being a critic of contemporary legal fictionality, Jhering refers to legal fictions as “law’s rococo style”,³² and in 1840, a writer muses:

[I]t is always a matter of extreme delight and refreshment to turn to those exquisite fictions which both adorn and simplify our law - mingling utility with sweetness, and tending to the noblest end to which poetry' can devote itself [...].³³

The theoretical heyday of the treatment of legal fictions stretched from the beginning of the 19th century to the first third of the 20th century, with Victorian literature³⁴ having led to a knowledge of “those especially pampered children of the Law”³⁵ among the more general public. Early on, scholars debated the issue within a more theoretical framework, such as Bentham, Maine, Gray, Pound and Fuller in the English-speaking world, and Demelius, Jhering, Tourtoulon, Biilow, Vaihinger, Kelsen, Lecocq, Mallachow and Miinzer on the European continent.’⁶ Arguably, also the law and literature enterprise of the late 20th century has contributed its part, leading to a renewed interested in the topic since the 1980s, adding to corporate personhood as the most prominent legal fiction a number of “newer” types. While “ejectment”,³⁷ the “fiction of survival”³⁸ and “constructive possession”³⁹ had a long tradition of use,⁴⁰ and were not only generally agreed to be fictions, but were also rarely confused with facts, newer fictions are said to operate more covertly.⁴¹ Often there is a certain overlap with legal conceptualizations, idealizations and illusions, as the concept of the “legal person”,⁴² the idealization of “reasonable man”⁴³ or the illusion of an “original public meaning” in constitutional law⁴⁴ illustrates. Also, not only do judges use the device, but so do legislators, as a number of provisions in US tax law well demonstrate.⁴⁵