Legal fiction as metafiction

Perhaps the appeal of both Maine’s and Fuller’s accounts lies in the attitude they convey rather than the framework they delineate. According to Maine, fictions are an instrument of change—but they are the wrong instrument. According to Fuller, they are false, but they do not hide their falsity, and that is what allows them to be productive. Both commentators recognize something about the productive and creative work of fictions that separates them from the other modes of legal invention. I suggest that legal fictions do for law what metafiction does for imaginative writing. By this I mean that modern commentators are interested in a different phenomenon than the one that interested Maine and Fuller: rather than deceit, or falsity, or the instrumental value of a false premise, modern commentators are interested in fabrication, creativity, constructive capacity—and they are especially interested in law’s ability to make things up when a legal device calls attention to this ability, rather than concealing it. In the 1960s and 1970s, novelists such as John Fowles, John Barth, and Robert Coover sought out new ways of highlighting the creative capacities of the novelist, by writing fiction in which they called attention to the author’s control over the story' and the reader’s participation in the imaginative enterprise that fosters the experience of narrative coherence. Using techniques now called metafictional, these writers made a point of pulling back the curtain, speculating openly about what might happen next in the plot, or how the reader was experiencing the text, or why characters were made to behave in the way they did.¹¹ It is precisely this kind of attention to the creative act that commentators on legal fictions mean to register, when they say corporate personhood or coverture is a legal fiction. Far from concealing the law’s operations, these doctrines appear—to those commentators—to be highlighting the law’s ability to create, or change, or refashion on its own terms. Whereas the metafictions of a Fowles or a Coover are self-conscious efforts on the part of a writer to break the illusion of realism, legal fictions are not deployed by judges who have a penchant for reminding their readers about law’s creative capacities; rather, on this account, the doctrine’s fictional dimension is in the eye of the beholder, which helps to explain why there is disagreement about which doctrines count as fictions.

There is more to say about the analogy to metafiction than I can elaborate here; I will close by considering the question of why relatively few doctrines are regarded as fictions. Since law is a thoroughly artificial enterprise, we might say that everything in law is a fiction, including estoppels, patent abuse, and the Rooker-Feldman doctrine. Although all of these evince law’s creative capacities, they' evidently are not perceived as highlighting those capacities, for the same reason that relatively' few writers of fantasy' and science fiction attempt the metafictional gestures of A.S. Byatt, Jennifer Egan, or Jeanette Winterson. Novelists who are busy creating new life forms and revising the laws of physics, or populating a plot with mythical beings, may see little reason to point out how much control they' have over the story', since there is no likelihood that a reader will succumb to the illusion of realism to begin with. There must at least be some chance that readers will see an imaginative work as referring generally to the world they experience, if there is to be any point in observing that “this is not a pipe.” Most doctrines are so entirely' creatures of the law that no one would mistake them for anything else.

Law is often quite open about its creative capacity. On a motion to dismiss, for example, courts invariably begin by' stating that, for purposes of the motion, they must assume all allegations pleaded in the complaint to be true.¹² Then, if the court denies the motion, those facts are placed back in the category' of conditional assertions that still have to be established according to the canons of evidence law. It would be hard to find a more direct acknowledgement of law’s ability to fabricate things than a fact accepted as true in one moment and put aside as requiring proof in the next. Moreover, the grant or denial of a motion to dismiss can have significant extralegal consequences, so one cannot say that the conditional assumption of truth matters only within the legal sphere, and has no effect outside that sphere. Evidently, this example and numerous others that one might furnish belong to the category' of legal devices and concepts that are artificial in the same way that fantasy and science fiction novels are artificial: the artifice is at once readily apparent and perfectly mundane.

Those doctrines that are typically regarded as legal fictions, such as corporate personhood and civil death, are doctrines that not only have extralegal effects, but that could be mistaken for having extralegal reference. Perhaps this way of perceiving them reflects a misapprehension about the referential nature of legal language; however, if one accepts that a doctrine’s fictional status depends on the eye of the beholder, then the relevant distinction turns not on a correct view of how legal meaning works, but on questions about ordinary language and the law’s attribution of technical meanings to terms that are drawn from ordinary language. Legal persons overlap with, and merge into, persons in the vernacular, finding attachments outside the legal domain in ways that estoppels and the Rooker-Feldman doctrine cannot. This apparent merging, I suggest, is the effect that corresponds to the literary metafiction, highlighting the law’s constructive capacity. Even though artifice plays a vital role in modern law, we seem to need fictions to bring that realization into visibility, and that is their most distinctive feature.

Notes

• 1 See e.g. Jim Evans, “Change in the Doctrine of Precedent During the Nineteenth Century,” in Laurence Goldstein, ed., Precedent in Law (Oxford: Clarendon Press, 1987), 45-65; and Neil Duxbury, The Nature and Authority of Precedent (Cambridge: Cambridge University Press, 2008).
• 2 See e.g. the essays in Maksymilian Del Mar and William Twining, eds., Legal Fictions in Theory and Practice (Cham: Springer, 2015); Nancy J. Knauer, “Legal Fictions and Juristic Truth,” St. Thomas Law Review 23 (2010), 1-49; Karla F.C. Holloway, Legal Fictions: Constituting Race, Composing Literature (Durham: Duke University Press, 2014); Trish Ferguson, Thomas Hardy’s Legal Fictions (Edinburgh: Edinburgh University Press, 2013).
• 3 Henry Sumner Maine, Ancient Law: Its Connection with the Early History of Society, and its Relation to Modern Ideas (London: Murray, 1861); Lon L. Fuller, Legal Fictions (Stanford: Stanford University Press, 1967).
• 4 For some recent examples, see Roy Sorenson, “Lying to Mindless Machines,” in Eliot Michaelson and Andreas Stokke, eds., Lying: Language, Knowledge, Ethics, and Politics (Oxford: Oxford University Press, 2018), 293; Daniel S. Kleinberger, “Shape Shifting in the Law,” William Mitchell Law Review 38 (2011), 586-7; Gilbert Leung, “Illegal Fictions,” in Benjamin Hutchens, ed., Jean-Luc Nancy: Justice, Legality and World (London: Continuum, 2012), 82; Marcus Waithe, “Empson’s Legal Fiction,” Essays in Criticism 62 (2012), 288.
• 5 Maine (note 3), 25-6.
• 6 Ibid., 28.
• 7 At most, we can say that Maine’s account is rhetorical in the sense that a failure to invoke the language of equity is the feature that brands the decision as fictional.

• 8 Maine (note 3), 29.
• 9 Fuller (note 3), 9.
• 10 For some discussion of these issues, see Simon Stern, “Literary and Legal Fictions,” in Elizabeth S. Anker and Bernadette Meyler, eds., New Directions in Law and Literature (Oxford: Oxford University Press, 2017), 313-26; Michael Quinn, “Fuller on Legal Fictions: A Benthamic Perspective,” in Del Mar and Twining (note 2), 55-82; Karen Petroski, “Legal Fictions and the Limits of Legal Language,” International Journal of Law in Context¹) (2013), 485-505; Frederick Schauer, “Is Law a Technical Language?” San Diego Law Review 52 (2015), 501-14.
• 11 For some classic analyses, see Patricia Waugh, Metafiction: The Theory and Practice of Self-Conscious Fiction (London: Routledge, 2002); Linda Hutcheon, Narcissistic Narrative: The Metafictional Paradox (London: Methuen, 1980).
• 12 See e.g. Bell Atlantic Corp, p Twombly, 550 U.S. 544 (2007).

References

Del Mar, Maksymilian and William Twining (eds). Legal Fictions in Theory and Practice. Cham: Springer, 2015.

Duxbury, Neil. The Nature and Authority of Precedent. Cambridge: Cambridge University Press, 2008.

Evans, Jim. “Change in the Doctrine of Precedent During the Nineteenth Century.” In: Precedent in Law. Edited by Laurence Goldstein, 45-65. Oxford: Clarendon Press, 1987.

Ferguson, Trish, Thomas Hardy’s Legal Fictions. Edinburgh: Edinburgh University Press, 2013.

Fuller, Lon. Legal Fictions. Stanford: Stanford University Press, 1967.

Holloway, Karla F. Legal Fictions: Constituting Race, Composing Literature. Durham: Duke University Press, 2014.

Hutcheon, Linda. Narcissistic Narrative: The Metafictional Paradox. London: Methuen, 1980.

Kleinberger, Daniel S. “Shape Shifting in the Law.” William Mitchell Law Review 38 (2011), 586.

Knauer, Nancy J. “Legal Fictions and Juristic Truth.” St. Thomas Law Review 23 (2010), 1-49.

Leung, Gilbert. “Illegal Fictions,” In: Jean-Luc Nancy: Justice, Legality and World. Edited by Benjamin Hutchens. London: Continuum, 2012.

Maine, Henry Sumner. Ancient Law: Its Connection with the Early History of Society, and its Relation to Modern Ideas. London: Murray, 1861.

Petroski, Karen. “Legal Fictions and the Limits of Legal Language.” International Journal of Law in Context9 (2013), 485-505.

Quinn, Michael. “Fuller on Legal Fictions: A Benthamian Perspective.” In: Legal Fictions in Theory and Practice. Edited by Maksymilian Del Mar and William Twining, 55-82. Cham: Springer, 2015.

Schauer, Frederick. “Is Law a Technical Language?” San Diego Law Review 52 (2015), 501-14.

Sorenson, Roy. “Lying to Mindless Machines.” In: Lying: Language, Knowledge, Ethics, and Politics. Edited by Eliot Michaelson and Andreas Stokke, 285-300. Oxford University Press, 2018.

Stern, Simon. “Legal and Literary Fictions.” In: New Directions in Law and Literature.

Edited by Elizabeth S. Anker and Bernadette Meyler, 313-26. Oxford: Oxford University Press, 2017.

Waithe, Marcus. “Empson’s Legal Fiction.” Essays in Criticism 62 (2012), 291-301.

Waugh, Patricia. Metafiction: The Theory and Practice of Self-Conscious Fiction. London: Routledge, 2002.