Speech act approaches to fictionality
Another important angle fictional theory provides to the issue of legal fictionality is a performative approach to the issue. Gregory' Currie has objected to Lewis’s account of fictionality that fictional worlds and possible worlds were not to be confused:
[Factional worlds, if there are any, cannot be assimilated to possible worlds [...] Possible worlds are determinate with respect to truth, every' proposition is either true or false in a possible world. They are consistent; nothing logically' impossible is true in a possible world. But fictional worlds are always indeterminate and sometimes inconsistent [...] The failure to assimilate fictional worlds to possible worlds shows why we cannot explain truth in fiction as truth in a possible world.
Currie maintains that although Lewis’s treatment could lead to correct results, it nevertheless is based on the wrong presumptions.240 In “On Being Fictional”, Currie even concludes that the truth status of fictional discourse is fundamentally different from factual discourse, since fictional truth or falseness can in fact be a question of degree.241 The reason for Currie’s rejection of Lewis’s claim, however, is a fundamentally' different approach to fictional discourse, which is shared by' a number of scholars. Such an approach operates under the assumption that fictional discourse might not be assertive at all. Scholars that base their theory' of fictionality on speech act theory in brief propagate that the illocutionary' act performed by the speaker when speaking is as important as the locutionary act (propositional content). In the context of the question of fictionality, the illocutionary act is even said to be the relevant part of an utterance. John Searle has proposed a theory’ of fictionality based on such a premise, assuming that in fictional discourse, an assertive speech act is not performed, but instead, such an assertion is only pretended - making the criterion of pretence the key' notion of fictionality. Though having the same propositional content as an assertion, fictional discourse is said to fail in complying with some of the basic rules of assertive discourse.242 Searle’s characterization of fictional pretence is surprisingly close to the criteria that have been established in the context of Vaihinger’s theory'. Fictional pretence means: to engage in a performance which is as if [...] without any intent to deceive.243
Gottfried Gabriel and Monroe Beardsley also follow Searle’s idea that fictional discourse consists in acting as if one was making an assertion. According to Gabriel,
the speaker speaks as if he were performing a particular kind of speech act, but in fact is not performing this particular kind of speech act at all.244
In a similar way, Beardsley defines fictional discourse as
discourse in which there is a make-belief illocutionary action, but in fact no such action is performed.24'’
He, however, slightly deviates from Searle by not using pretence, but “representation” as the criterion: “Fiction [...] is the representation, not the performance, of illocutionary action”.246
For Beardsley, it is nevertheless also Searle’s (and thus Austin’s) criterion of a non-fulfilment of semantic or pragmatic requirements that turns an assertion or any other type of illocutionary act into a representation:
When a text is produced that could be used to perform an illocutionary action of some recognizable kind, and enough of the requisite conditions are present or presupposed to permit the kind to be recognized -but not enough for such an action actually to occur - then we have
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a representation.“
In order to distinguish fictional discourse from lies and deceit, Beardsley also requires the non-compliance to be overt. The demand that fictional discourse is an overt deviation from semantic or pragmatic rules at the same time functions as a guarantee for the success of fictional utterances:
It is only necessary to make clear that one or more of the requisite conditions is lacking, while at the same time inviting the receiver (hearer or reader) to make-believe that they are also present, in order to convert a genuine illocutionary action into a Active one.248
Although Searle’s account has been criticized by scholars such as Richard Rorty, Thomas Pavel and Nicholas Wolterstorff, a substantial number of scholars currently propagate speech act approaches to fictionality, among them even Searle’s critic Wolterstorff. Wolterstorff admits that Searle was correct in approaching the issue from the perspective of illocution, and thus engages in a performative understanding of the issue, but argues that he was wrong in assuming that in fictional discourse an illocutionary act is only pretended:
As I see it, fictional world-projection is the doing of something by means of inscribing words under certain conditions, not merely the inscribing of words under certain conditions. And I am myself inclined to think that the “doing” in question in fact is an illocutionary' action - something like inviting to suppose, or inviting to consider.249
Maria Reicher comparably assumes that fictional discourse always performs the illocutionary act to devise a fictional world,250 and in “What is fiction?”, Gregory Currie maintains that in fictional discourse a “genuine illocutionary' act”251 is being performed, that, though not assertive, is well “on a par with assertion”.252 Although he agrees with Searle that the intention of the speaker determines whether a speech act is fictional or not (“The illocutionary' act is a function of the speaker’s intention”253), Currie weakens the requirement of intentionality (and consequently of overtness) by accepting “secondary' fiction” where the intent of the author is misunderstood or neglected by the audience.254 Currie, however, has subsequently' modified his theory25 - and his approach shares some traits with another performative understanding of fictionality', as propagated by Kendall Walton. For Walton, fictionality' is reduced to the functional misappropriation of an object that, contrary’ to its ordinary’ usage, is now used as prop in a make-believe game.256 Walton’s theory' is claimed to better provide a general criterion of fictionality, since it can also account for fictionality in non-verbal media, and has been well received in the current debate. However, it has also been harshly criticized,257 in part precisely because of its broadness which also guarantees its transmedial application.2’’8 Literary' critics have particularly' pitted against Walton’s approach. This, however, does not mean that literary' criticism is fundamentally’ opposed to speech act approaches (or performative approaches in general). The contrary' is actually the case. Independent of analytic philosophy, Gerard Genette259 and Dorrit Cohn260 have also tied the issue of fictionality' to questions of speech, understanding the dissociation of author and speaker as the key criterion for fictionality'. It is surely' no coincidence here that the foundations of this approach were laid in the founding era of speech act theory’, with Wolfgang Kayser’s 1958 essay' “Who Narrates a Novel?”261 and Kate Hamburger’s 1957 monograph The Logic of Literature.262 Also, Searle’s claim that, in literary fiction in general, an author is pretending to narrate,263 and that in first-person narrative in particular, he is even pretending to be the (main) character making assertions,264 clearly bridges the above gap. The theory of Hamburger is, however, complicated in this regard, since, though focusing on a certain type of literary' speech,265 it also needs to be understood as an opposition both against speech act theory' approaches266 and Vaihinger’s theory of an “as if”.267 But not only literary theory’s distinction between narrator and author is in accord with speech act theory. Especially continental European literary theorists have derived a fundamental distinction from a speech-act-oriented perspective: the distinction between “Active” and “fictional”. While the fictitiousness of the material of a story is regarded as a question on the level of the story' (Genette’s histoire) and thus can be traditionally approached using the criterion of truth, fictionality is instead understood to be a question of illocution, and thus solely to be decided on the level of discours,26* possibly rendering the criterion of truth irrelevant.269
Despite the differences between the latter theories of fictionality, and the evident inapplicability of some of literary theory’s conceptions of fictional discourse on phenomena outside the literary field, it is evident that the above approaches have in common that they call for a reassessment of the classical understanding of the relation of fictional discourse to truth. If Searle is right that fictional discourse can neither be true nor false, since only real and not pretended assertions can have truth values, fictional discourse at least can no longer be defined as counterfactual discourse. The latter claim already has well-known precursors. In The Defence of Poesy, Philip Sidney already stated: “Now for the poet, he nothing affirms and therefore never lies, for, as I take it, to lie is to affirm that to be true which is false”.270 Correspondingly, according to Bentham, the poet “pretends” that “his foundations [were] laid in truth”.271 However, even under the presupposition of speech act theory, it is generally agreed that at least meta-fictional propositions can well have truth values. Some scholars even maintain a hybrid view: while the speaker of fictional discourse does not claim that his utterances are true, the utterances can, however, nevertheless be accidentally true. Beardsley positions himself clearly regarding the question of truth in fiction by characterizing fiction as a discourse “in which the report-sentences are not asserted, while these sentences may still be true or false.”272 Currie reaches a similar conclusion, claiming that a discourse can be fictional “though entirely true”,27'’ although such truth is completely “accidental”274 - and thus not a valid criterion for fictionality. Currie correspondingly warns not to confuse the question of truth with the question fictionality:
[TJhe distinction [...] between factional and fictional statements is not the same as the distinction between false and true statements. Nor is it the distinction between what the author (and readers) acknowledge as factual and what they do not so acknowledge.275
We do not, however, need to assume Currie’s or Beardsley’s position to understand that a certain schizophrenia is possible in or even constitutive for fictional discourse: Lewis’s theory already allowed for a dissociation of the truth values of fictional discourse and its propositional content. While it is assumed by Lewis that “at our world” fictional discourse is only pretence, and thus fictional names are “denotationless”, within the fictional universe the same discourse even needs to be understood as an assertion:
The worlds we should consider, I suggest, are the worlds where the fiction is told, but as known fact rather as fiction. The act of storytelling occurs, just as it does here, at our world; but there it is what here it falsely purports to be: truth-telling about a matter whereof the teller has knowledge.276
Also Gabriel, though following Searle in clearly rejecting the notion of truth values of fictional discourse, nevertheless upholds that, since fictional discourse “may ‘create’ Active worlds”, “the fictional utterance is true (or false) [...] in the corresponding fictional world”.277 Currie and others, however, have maintained that while truth in fiction might exist, “truth-in-fiction” was not “truth” in the conventional sense,278 and have consequently questioned whether Lewis’s possible-world-theory-oriented definition of fictional truth can actually serve its purpose. In The Nature of Fiction, Currie has linked fictional truth with the criterion of belief instead.279 He, however, revoked this claim seven years later in “On Being Fictional”.280
Richard Gale seems to aim at a compromise in this matter instead:
Sentences in Active utterances when construed non-contextually might be true or false or lacking in truth values. The Active stance, not a theory' of presupposition or assertion, determines how they are to be taken. Truth and falsity are indifferent to what it is possible to imagine, entertain or make-belief. Some sentences - notably those containing fictional singular terms - have no truth-values on a non-contextual construal but construed in context perform the function of characterizing objects and states of affaires whose very' nature is determined by' the descriptive content of the utterances themselves.281
Given the above, it should become obvious that the theory' of legal fictionality' could well profit from these more reflected approaches on fictionality. While some of the concepts of fictionality' that originated within literary' theory' evidently' cannot be applied to legal fictionality' without modification (e.g. the criterion of a dissociation between author and narrator), others are easily applied. The reassessment of both the criteria of truth in general and fictionality' in particular is evidentially' relevant here, in light of the unreflected dichotomous understanding of fictionality' as counterfactual discourse that still lingers in legal thought. The question of applicability' is not as simple with speech act approaches, however. Though, early' on, Alf Ross proposed a definition of legal fictionality' that shares a striking similarity' with speech act approaches, claiming that in legal fictional discourse, a proposition “is only posed, not affirmed”,282 and characterizing judiciary fictions “make-belief actions” that do not require counterfactuality,283 a theory of speech acts might at first sight rather deepen the gap between legal and literary' fictionality.284 Despite the fact that speech act analysis has long found its application in legal theory,285 a transfer of this approach to legal studies might prove problematic when it comes to the question of legal fictions. Legal and fictional discourse seem to differ considerably in the quality of their illocutionary’ performances - at least if literary' discourse is taken as the paradigm of fictional discourse. While legal scholars have long stipulated that legal norms, without exception, have to be understood as a certain type of illocutions, namely' commands (directives),286 in contrast, at least in the field of literature, the participants of fictional discourse are rarely embedded in a comparable authoritative framework, and the speech acts pertaining to it might also be of a different type. Under this presupposition, the inevitable question must be if fictional discourse can play any relevant role in the legal field. For Bouvier, it is evident that, due to the authoritative character of law, legal fictionality' is not impossible, but unnecessary' - and has to be regarded as an alien element within the legal system.287 In a comparable manner, in Chapter 5.4 of this volume, Andrei Mamor has identified the criterion of authority as the differentiating criterion between the legal and the literary' field.
On closer examination, however, the opposition might not be as polar anymore. At least in the one case of legal fictionalizing that Bouvier would accept as legitimate but unnecessary' (the case of statutory' fictions, which are not based on the lack of authority'),288 an imperative has already been construed by' the early' scholarship: the command to feign or to regard/to treat “as well”/“as if” (Biilow, Kelsen, Kluckmann).289 But also in general, the gap might not be as gaping. From the perspective of legal fictionality, at least some legal fictions clearly bear the surface structure of assertions, and not of commands. From the perspective of literary' fiction, a convergence towards the legal realm of authority can also be monitored, since “fiction” as an institutionalized cultural practice within literature and the arts well prescribes a certain stance of reception, or at least strongly suggests one. To imagine as instructed; to treat as if; to suspend disbelief; to refrain from performing a reality test: these are only some of the commands identified by scholars that fictional discourse might entail. The conventions of interaction between producer and recipient of a literary' work, early paraphrased as a -“contract”,290 might not be equivalent in authority' to contractual relation as established in the legal realm, but the term used surely' is also more than a mere metaphor. In film theory', Christian Metz and Jean Louis Baudry have investigated the cultural practice of fictional film reception as a prescriptive “apparatus” - and in this process unveiled a substantial amount of cultural conventions and rules that lead to a certain prescribed receptive stance of the audience.291 Correspondingly, Walton’s approach to fictionality not only contains an invitation to imagine a certain event, but instead has been considered as mandatory, a peculiarity that Matravers has also commented on:
[A] proposition is fictional if there is a mandate to imagine it. [...] There are many propositions that are part of the content of fictional works that the reader is mandated to believe rather than make-belief.292
Newer voices, such as Richard Gerrig,293 have inverted Coleridge’s dictum of a “suspension of disbelief” as part of the mutually binding framework of fiction. Assuming that, in daily life, belief is rather the rule than the exception, the fictional stance is instead said to be characterized by its opposite, the “construction of disbelief’.294
For the field of literature, the proponents of the Constance School early on highlighted in their version(s) of a reader-response theory (Jaufi in a 1967 publication, Iser in his 1970, 1972 and 1976 monographs) that while the author often only invites, he sometimes might also clearly demand a certain activity of reception. “Receptional prescriptions”,295 “receptional directives”296 or “appellative structures”297 are terms used for those instances where a text prescribes a certain action or attitude to the reader298 (as opposed to the more usual mere “receptional invitations”).299 Iser claims that although the meaning of a text is always a co-product of reader and author (understanding the text rather as a score that leaves the recipient enough indeterminateness to be filled in by his knowledge, personal history and his conscious and unconscious wishes and needs), there are nevertheless signposts and structural orientation which are prescriptive and thus demand with a certain authorial authority that the reader follow. Though, contrary’ to the legal field, the adherence to such rules is usually not secured by pain of penalties, few readers will, for example, ignore the paratextual command of a book labelled “novel” and read it as a factual account instead, though the latter might, of course, happen by accident, a problem literature theory' also has been grappling with.’00 Equally, despite many’ innovations in modern and postmodern theatre and other performative arts, spectators of a play continue to have the tendency' of refraining from dialogue with the actors on stage (even if ostensibly' addressed), and much less will they' storm on stage in order to fight the villain and free the imprisoned maiden. ’01 In short, the institutionalized cultural practice of literary' fiction, like the legal realm, is characterized as being part of an authoritative framework - and the difference between the two frameworks might not be a difference in nature here, but rather in degree. Searle’s assessment is noteworthy' here: that regarding the typology' of speech acts, between an invitation and a command, the difference is of the latter sort (not of category', but of degree), since both are in fact “directives”.302
Especially one strain of fictional theory has investigated this notion more extensively. Although Kendall Walton’s treatment of fictionality shares with speech act approaches that it is based on the idea of a performative understanding of fictionality, it has, however, considerably shifted away from the idea of a speaker’s intention as the criterion of fictionality (as propagated by Searle). Since the intention of an original communicator (e.g. an author) is irrelevant in Kendall’s account of fictionality (which focuses on the mere fact that a prop is used in a game of make-believe, as part of an established “institution”303), fictionality is fairly reduced to the practical question of receptive stance.304 The problems raised by such a position (questions of truth, reference, etc.) are, however, not different in essence from the above already treated - and as many speech act theorists claim, fictionality needs to be understood not as a syntactical or semantic question, but as a purely pragmatic one, anyway. In literary' theory', the idea has been fruitfully' extended to an institutional theory of fiction, claiming that fictional discourse functions within an institutionalized framework that also institutionalizes rules both of production and/or reception. Peter Lamarque and Stein Olson have characterized such an institutionalized practice as “constituted by' a set of conventions and concepts which both regulate and define the actions involved in the practice”.305 “Institution” is then circumscribed as “a rule-governed practice which makes possible certain (institutionalized) actions which are defined by the rules of the practice and which could not exist as such without those rules”.306
The advantage of a theory of fictional discourse as institutionalized practice is that it can account for degrees and differences, since the participants of an institution may to a greater or lesser degree obey' the norms. The rules, even if not followed, are nevertheless indispensable, for, as a framework, they' constitute a necessary' condition of fictional discourse as a practice. Some of these rules were already present in this chapter, such as Lewis’s principles; others spring from possible world approaches, as the principle of minimal departure.307 Although institutional-practice theories were formulated for and developed specifically within a theory' of literature, art or media - and therefore rather dissociate from the more common definitions of analytic philosophy' - the idea to also understand legal fiction as an institutionalized practice seems fruitful, especially’ since the use of legal language is already part of an institutionalized practice of language use. Within this different framework, a number of Fuller’s questions - for example, as to whether fictionality requires overtness and thus presumes consciousness308 - can also be more adequately assessed.
