Two theories of fictions
Two accounts of legal fictions have played an extremely influential role in recent scholarship: Henn' Sumner Maine’s account, in Ancient Law (1861), and Lon Fuller’s account, first published in a trio of articles in the early 1930s and reprinted in book form in 1967.[1] Fuller’s account has received a considerable degree of attention in recent scholarship, but Maine’s discussion has attracted much less scholarly attention; although many commentators have drawn on it, few have subjected it to critical scrutiny. Consequently, I examine Maine’s treatment in more detail below, and consider Fuller’s analysis very' briefly.
Maine’s account of legal fictions remains highly influential even though some of its central tenets have, at least implicitly, been rejected. Contemporary' scholars often quote Maine’s definition of legal fictions as a preliminary' step before focusing their attention on a particular example (such as coverture, civil death, corporate personhood, the “one drop” rule, or the reasonable person). Maine furnishes a genealogical definition that may have answered the needs of his day; today, however, it is invoked with little attention to the constraints it establishes. One of the features that may help to account for its contemporary’ appeal involves the sense of evasiveness it captures. He asserts that fictions are pervasive in the common law—so pervasive as to be absolutely omnipresent— and although commentators rarely acknowledge the full significance of this claim, they seem to relish its implications.
Here, then, is the account that Maine furnishes: fictions. ... The factK ... that the law has been wholly changed; the fiction is that it remains what it always was.5
At first glance, this analysis might seem to exemplify a rhetorical approach to the subject: courts are resorting to fictions on those occasions when, like a bunco artist, they distract readers by talking of stability although in reality they are covertly rearranging things. Hence it might seem to follow that when a court acts openly, it is not relying on a fiction, no matter how bizarre or fanciful its reasoning. A closer look, however, shows that Maine is concerned not with rhetoric but with concepts and institutions.
According to Maine, a fiction arises whenever “[an] assumption ... conceals, or affects to conceal, the fact that a rule of law has undergone alteration, its letter remaining unchanged, its operation being modified.” And as Maine shows, in the discussion that follows, such an assumption is at work in every case in which a court changes the law. That is because “the fiction ... that [the law] remains what it always was” is, in his view, an institutional fiction that applies to the workings of common-law courts generally. This fiction is expressed by the proposition that courts do not make new law, but only find the law. Consequently, even if a judge were to state, in the course of a decision, that the result was to change the law, that would not dispel the “assumption which conceals” the fact of change, because that assumption does not depend on a particular instance of judicial rhetoric, but rather on a claim about the nature and operation of common-law courts generally.
Maine’s definition is genealogical because it makes a doctrine’s status as a fiction turn on how the doctrine was developed. Maine places legal fictions in contrast to two other modes of legal change: alteration by equity and by statute. A fiction arises whenever a court changes the law, and a fiction never arises when legal change occurs by way of equity or statute. Equity is the conceptual instrument of change in the common law: “Equity ... differs from ... Fictions ... in that the interference with law is open and avowed.”6 Once again, it may seem that Maine is presenting a rhetorical argument, but on his view, courts must resort to equity in order to change the law, and hence a failure to invoke the court’s equitable power necessarily brands the decision as fictional.7 Legislation differs from both law and equity because of the agent that effects the change:
[Legislation] differs from Legal Fictions just as Equity differs from them, and it is also distinguished from Equity, as deriving its authority from an external body or person. Its obligatory force is independent of its principles. The legislature, whatever be the actual restraints imposed on it by public opinion, is in theory' empowered to impose what obligations it pleases on the members of the community. There is nothing to prevent its legislating in the wantonness of caprice.8
Legislative change produces no fiction, because the legislature is not confined by the institutional claim that it does not make law—in fact, that is precisely what legislatures are known to do. And equitable change produces no fiction, because the use of equity is the proper means of change by a court.
Consequently, for one who subscribes to Maine’s account, no doctrine can be characterized as fictional until we first determine the doctrine’s origin: Was it by a court or a legislature? If by a court, was there any talk of equity? Yet in many contemporary' uses, the term is reserved for doctrines that are bizarre, fanciful, strained, or implausible, regardless of the means by which they were produced. Adherence to Maine’s account would require that the credentials of any candidate for fictionality must be verified by tracing the doctrine back to its source, and then confirming that in the interim, no court in the same jurisdiction has adopted the result by using equity, and no legislature has done so by statute. Either of these events would terminate the fiction and place the doctrine on a new footing. Taken seriously, Maine’s approach would involve highly specific historical claims: a given doctrine was fictional only for a certain time span, until the fictional solution was replaced by some other instrument of legal change. This kind of historical examination is conspicuously absent from most contemporary' discussions of legal fictions, which tend to proceed as if fictionality' depends on the content of a legal proposition rather than its source or the conditions in which it is posed.
Consequently, to invoke Maine’s definition as the basis for explaining the fictionality' of corporate personhood or civil death appears misguided for two reasons. First, according to Maine, the number of fictions in the common law is vast—in fact, the great majority' of all legal doctrines are fictions, having been generated entirely by' courts, or by' courts as a way' to fill in legislative gaps. (Although Maine emphatically embraces this view, it is rarely' mentioned in modern discussions that refer to him.) The comparatively small list of doctrines that appear repeatedly in discussions of the subject would hardly' scratch the surface, nor does Maine’s account helpfully' explain why civil death or corporate personhood in particular should count as fictions (since the list is so huge). Second, the fictionality' of any' given doctrine depends on details (which jurisdiction? which era?) that appear to hold very' little interest for most of the scholars who quote Maine.
Taken at face value, Maine’s account seems to have little to offer for most commentators—in the fields of both law and literature—who are interested in the classic examples of legal fictions. This area of scholarship is concerned with fictional dimensions of corporate personhood, for instance, that differentiate it from concepts such as “substantial similarity'” in intellectual property', or “reasonable discoverability'” in the law of limitations (which would both count as fictions, in many jurisdictions, according to Maine). Why, then, does Maine’s treatment continue to have so much appeal? I suggest that the answer lies in Maine’s talk of “concealment,” which hints at an evasive attitude surrounding the establishment of the fiction. In much of the recent research on legal fictions, it is this air of evasiveness, rather than the doctrine’s pedigree, that seems to justify the label. Insofar as this change in the application of the term “legal fiction” has gone unacknowledged, one might be tempted to say that the ongoing use of the same label exemplifies precisely the kind of fictionality that Maine’s definition itself targets: the term’s operation has been modified, its object has shifted, but the continued reference to Maine’s account implies that its letter and substance have remained unchanged.
Turning briefly to Fuller’s theory' of fictions, we may note that its central requirement is falsity. He writes that a legal fiction is “either (1) a statement propounded with complete or partial consciousness of its falsity, or (2) a false statement recognized as having utility.”9 If Maine’s definition appears unhelpful because it would require us to verify the source of a given doctrine, Fuller’s raises concerns because the language of truth and falsity seems inapposite for many of the doctrines that are normally characterized as fictions (and for legal concepts more generally). Is the standard of the “reasonable person” true or false? It is hardly evident that the standard includes any propositional content that would make this question meaningful. A standard is simply a means of evaluating liability: those who meet or exceed it are not liable, and those who fall short (and cause harm as a result) are liable. To say that someone did not meet the standard, in a given case, involves no assertion about the defendant’s personality; it attaches a legal label to the person’s acts, just as countless other doctrines do, and hence it is hard to see how falsity could enter into the discussion. Again, is it true or false that a person is “civilly dead”? It is true if we take the doctrine to name a legal result, and false if we can discern, within the formula, a referential claim that designates something besides the person’s legal status. These are vexed issues, and I cannot do full justice to them here.10 Suffice it to say that Fuller’s “falsity” comes closer to the nub of the fiction than Maine’s “concealment” does, but neither one seems to account satisfactorily for the doctrines that consistently figure in most discussions of the subject.
- [1] 2 by' which those Courts contrived to usurp the jurisdiction of the Common 3 Pleas:—the allegation that the defendant was in custody' of the king’s marshal, or that the plaintiff was the king’s debtor, and could not pay' his debt 4 by' reason of the defendant’s default. But I now employ' the expression “Legal Fiction” to signify any' assumption which conceals, or affects to conceal, the fact that a rule of law has undergone alteration, its letter remaining unchanged, its operation being modified. The words, therefore, include the instances of fictions which I have cited from the English and Roman law, but they embrace much more, for I should speak both of the English Case-law and of the Roman Responsa Prudentum as resting on
