The basis of the fact-fiction dichotomy
Within the long treatment of legal fictionality', a clear hierarchy has been established. That fiction feigns as real what is unreal (“fictio fingit vera esse ea, quae vera non sunt")46 is a definition of legal fictionality most scholars agree on, and the traditional understanding of the relation between fact and fiction is clearly hierarchical, since fiction has also long been said to yield to truth: "fictio cedit veritati"47 Such hierarchy must even be strengthened when the sole possibility' of factuality’ is postulated to unconditionally triumph over fiction: “jictio cessat ubi veritas locum habere potest” - fiction yields where truth can have a place.48
The passages quoted above, however, also demonstrate a common denominator in the treatment of legal fictionality: legal fictions are presumed to be untrue and thus irreducibly tied to the criterion of truth, rendering a classical understanding of counterfactuality' the key criterion: fictio est contra vcritatem, scd pro vcritatc habetur.49 Correspondingly, Baldus de Ubaldis stated for the field of law:
[FJiction is an assumption contrary' to truth in a matter known with certainty'; and it is to be noted that wherever something can be said properly to be asserted, or properly' to exist, there is truth; and where something cannot be said properly to be asserted, or properly to exist, there is fiction.50
The latter premise is mirrored in many definitions of legal fiction, both old and new. In England, in his characterization of legal fiction as “willful falsehood” and “a false assertion of the privileged kind, which, though acknowledged to be false, is at the same time, argued from and acted upon, as if true”,51 Bentham can recur on a commonplace definition of legal fictionality', for example as propagated by Henry' Finch, who in his 1613/1625 treatise52 understands legal fiction as a “construction [...] when the law construes a thing otherwise than it is in truth”. 3 On the continent, Renusson invokes the postglossators’ definition,54 and De Tourtoulon can state in the same tradition that, regarding legal fictions, “non-existence” is considered equal to “existence” - and that it is in fact the “equality between the true and the false which gives the fiction its particular character”.55
Legal dictionaries have subsequently perpetuated this view. The third edition of Ballantine’s Law Dictionary still defines “legal fiction” as “a contrived condition or situation”, and centers on counterfactuality as the key criterion:
A [legal] fiction is a rule of law which assumes as true, and will not allow to be disproved, something which is false, but not impossible.56
The 2012 Wolters Kluwer Bouvier Law Dictionary Desk Edition reads:
FICTION OF LAW. The assumption that a certain thing is true, and which gives to a person or thing, a quality which is not natural to it, and establishes, consequently, a certain disposition, which, without the fiction, would be repugnant to reason and to truth. It is an order of things which does not exist, but which the law prescribes or authorizes; it differs from presumption, because it establishes as true, something which is false. [...]. A factual assumption [... ] which is not based on reality.
Even the most current edition57 of Black’s Law Dictionary characterizes a “fiction of law” as a “rule of law which assumes as true, and will not allow to be disproved, something which is false”.
Most scholars have equally centered on the question of classical counterfactuality, among them Lon Fuller, perhaps the best-known theorist of legal fictionality of the early 20th century in the English-speaking world. In his first 1930 essay on legal fictionality, Fuller defines legal fictions as “either a statement propounded with a complete or partial consciousness of its falsity', or (2) a false statement having utility'”.58 Consequently, Fuller can maintain that “[a] statement must be false before it can be a fiction”.59 Just how long such understanding has been perpetuated is shown by a 2015 essay, where it is stated: “Fictions are, by definition, false, and thus a legal fiction is a legal falsehood.”60
There were (and are), of course, notable exceptions to the rule. Some scholars claim that the question of legal fictionality does not or should not involve matters of fact, or that the true-false dichotomy is at least misleading when assessing legal fictionality. Within the earlier scholarship, Demelius,61 Lecocq,62 Somlo63 and Kelsen64 are most noteworthy here; of the newer scholarship, Ross (1969),65 Samek (1981),66 Campbell (1983),67 Birks (1986), 68 Soifer (1986)69 and, most recently, Petroski,70 Stern71 and Lind72 in Del Mar’s 2015 volume,73 as well as Marmor, Petroski, Stern and Lind in Part 5 of this volume. Alf Ross has categorically rejected a definition based on the criterion of counterfactualty74 and has proposed an alternate treatment of legal fictionality' based on speech act theory instead.75 Robert Samek has suggested that fictions “have their own reality” - and that instead of contrasting fiction with truth, we should “concentrate on what the two have in common”.76 Kenneth Campbell has renewed the focus on the preservative function of legal fictions,77 seeing “a tension between two classifications of fact”78 as constitutive for legal fictionality. Aviam Soifer has pointed to the fact that, in a “post-realist world”, “legal fictions are not some small, awkward patch but rather the whole seemless cloth of law”.79 A more recent essay claims that legal fictions are in fact true, at least in the “the linguistic jural systems within which they' originate and are used”, understanding an “intersystemic conflict” as constitutive of legal fictionality.80 While Karen Petroski, in light of discourse analysis, has further developed Fuller’s notion of an interdependence of fictionality and the development and boundaries of the legal vocabulary' by' reopening the inquiry' into “what makes a legal ‘fact’”, and subsequently' into “the relationship of such ‘facts’ to other aspects of legal discourse”, thereby' shifting the focus more to the aspect of linguistic “communities of convention and practice”,81 Simon Stern has analyzed legal fictionality in terms of narrative and imaginative engagement, building on Ross’s insight that certain legal fictions “differ from literary fictions in possessing no appeal to imagination”.82 In “Literary and Legal Fictions,”83 Stern maintains that legal fiction should be identified with a distinct narrative structure, and that contrary' both to literary' fictionality and legal fictionality in general,84 in terms of its constraint85 “generative potential”, legal fictions in particular are “singularly immune to the logic of plot”.86 In Chapter 5.1 of this volume, Stern in fact theorizes that legal fictions achieve “in legal thought, what metafiction achieves in the literary realm”. Andrei Marmor also questions if truth can be the adequate criterion for fictionality (Chapter 5.4 of this volume). Using David Lewis’s idea of prefixed contexts, Marmor claims that legal and literary discourse were, in fact, not distinct in terms of fictionality, but only in terms of authority. Both in a 2011 essay87 and in Chapter 5.2 of this book, I propose a different point of departure for a general definition of fictionality, based on institutional practices. I theorize (pp. 200, 219-23) that the characteristics of a legal fiction lie in the particularity that, within an institutionalized practice of language use, a linguistic convention is openly suspended. Thus explicitly establishing a divergent denotative practice of use, which operates under the overt condition that the superordinate practice remains untouched in terms of authority, such merely relative institution can be meaningfully talked about and referred to without alluding to any notion of counterfactuality - and is applicable both in realist and nominalist systems. That the common focus on the criterion of counterfactuality could already have early been avoided is furthermore shown by those current approaches which define legal fictionality, in the tradition of Henry Maine,88 not by its form, but by its intended aim instead. By using a solely functional criterion here, the pitfalls of counterfactuality are elegantly evaded.
In contrast, however, the majority of scholars still seem to adhere explicitly or tacitly to the basic presumptions of the classical dichotomy when dealing with legal fictions - as shown in a 2014 essay, which openly shares Bentham’s conviction that “legal fictions propagate so many untruths in the practice of law” and consequently characterizes legal fictions as “practical - but untrue”.89 Some recent scholarship distinguishes “classical” from “new legal fictions”, which supposedly are “not acknowledged to be false, or in some cases [...] are not in fact demonstrably false”, and which are held to contain types that “do not have a clear measure of truth or falsity”.90 Baker, in a lecture published in 2001, differentiates “factual fictions” from fictions where “the evidence was partly fictionalized”, though proof itself was provided by “real eye-witnesses”, and from “linguistic fictions” (e.g. statutory' fictions, where a “rule of law [...] seems to conflict with reality”).91 Not only are some of the examples Baker cites claimed to be “not exactly false”,92 but Baker also correctly subsumes that the “line between a fiction and the expansion of a legal concept or term of art may' be a fine one”93 - and thus reiterates Fuller’s and Jhering’s remarks on a possible relativity of what is factual and what is fictional.94 Even within this newer scholarship, however, there is a clear tendency' to mark non-counterfactual fictions wrongfully labelled as “fictions”. Accordingly, Knauer subsumes that a large part of these newer forms should not be called fictions, but should instead be labelled legal “mistakes” or “lies”95 - the former to be the case with “empirical legal errors”, the latter with “discredited legal regimes” and “statutory' schemes”.96 Baker categorically excludes statutory' fictions from the label of “fiction”, since “[rjules of law cannot be false in the factual sense”, and claims that such deeming provisions though they “are often said to be fictions[,] [t]hey are not really so.”97 In a Kelsenian notion. Baker also adds, that, in general, legal metaphors should not be confused with reality - and that a contradiction to reality is not possible in this domain.98 Accordingly, the basic premise of this scholarship is still the referential axiom: “Before we can speak of fictions, we must be able to identify the truth”,99 an essay on new types of fiction concludes. Comparably, in Campbell’s essay, the fact-fiction dichotomy continues to be upheld, since it is presumed that legal fiction “arises from the content of the rule being false when regarded as a question of fact according to non-legal classifications”.100
Other scholars have propagated a mixed approach, openly or covertly blending a formalistic definition with a functionalistic one. Although Harmon in a 1990 essay (that also reiterates well the history' of legal fictionality) acknowledges that there is little agreement on what a legal fiction is, when it comes to statements that are not strictly counterfactual, she, in practice, nevertheless implicitly propagates a notion of reasonable correspondence as criterion,101 while at the same time focusing on Maine’s criterion of utility. In the context of counterfactual fictions, Harmon even deviates from Fuller’s view on linguistic relativity with respect to legal fictionality': “Without limitations set on the use of false statements, we run the risk of linguistic anarchy”, the essay reads, and continues: “There is only so much falsity' we can bear.”102 MacLean in his 1999 essay manages to avoid the question of truth by' adopting Jhering’s103 formal understanding of dogmatic fictions as the “operation” to “extend to B a rule of law which applies to A by saying ‘B shall be deemed to be A’”.104 He, at the same time, however, assumes legal fictions to have a particular relation “both to words and things”, insofar as “they' can only be known by' means of the former, and stand in contradistinction to the latter”.105 Such mixed, and sometimes even methodically inconsistent approaches were present as early' as the turn of the last century, as Miller’s 1910 categorization, which Rises functionalist and counterfactual notions, demonstrates:
A legal fiction is probably best defined as “a legal assumption of an innocent and beneficial character, made to advance the interest of justice”. [...] Generally' fictions may be classed as of three kinds: first - positive, when a fact which does not exist is assumed; second - negative, when a fact which does exist is ignored; third - by' relation, when the act of one person is taken as that of another; or when an act at one time is treated as if performed at a different time or place; or when an act in relation to a certain thing is treated as if in relation to another thing.106
In fact, Jhering in his 1865 approach already explicitly mixes criteria of form and function when stating that a legal fiction’s “characteristics” were to be found in “the form in which it conveys, and its reason for doing so”.107 Further, when Fuller treats the “death” of a fiction, it becomes evident that, in his definition, both falsity and functionality are necessary' criteria for legal fictionality: A legal fiction ceases to be a fiction, first when it becomes “true” due to a change in language conventions (e.g. semantical extension),108 and second, if it “becomes dangerous and loses its utility”,109 rendering a change in its merely perceived truth value (as a question of utility') equal to a change in its actual truth value (as a question of referential adequacy).
Conversely, not all scholars that categorically uphold truth-oriented definitions postulate counterfactuality as criterion, but already' accept the possibility' of counterfactuality as sufficient instead - and by' this effectively void the classical distinction between presumptions and fictions, which reads: Nam fingit esse, quod vere non est, quae sane fietio esso non potest nostro in casu, in quo no est cerium.110 Following New Hampshire Strafford Bank v. Cornell and Hibbert v. Smith, both Ballantine’s and Black’s Law Dictionary (2nd edition) define legal fiction as “an assumption or supposition of law that something which is or may' be false is true.” That the requirement of falsity' has been loosened here111 should, however, not be overestimated. Since a number of legal fictions served the purpose of facilitating a decision in cases where proof is impossible112 or was excluded for reasons of justice or equity', the above non-parsimonious definitions rather reflect a practical demand, instead of providing evidence for a theoretical reassessment of fictionality' as such. Responding to the latter need, a loosened criterion of counterfactuality was already' in use during the 19th century', as a 1858 Imperial Dictionary entry demonstrates: “A ‘Fiction in Law’ is an assumption of a thing made for the purpose of justice, though the same thing could not be proven and may be literally' untrue.”113
