Linguistic fictions and legal rule

“It is curious to note how much of modern fiction has a legal tone about it. Some its very best efforts it owes to the law.” Thus observed an essayist writing in the popular British magazine Belgravia in 1869. But after that promising beginning, the author goes on to take novelists to task; for “while the law from the novelist’s point of view, in truth, is often a fearful and wonderful institution,” it seems as though many of the novelists who use legal themes and procedures to fuel their plots are rather ignorant about that institution.¹ Exempting from this reproach Dickens, Collins, and Bulwer Lytton—as well as a certain “lady novelist,” most certainly Belgravia editor Mary Elizabeth Brad-don—the author offers several examples drawn from recent popular novels of mistakes about law or legal procedure. As it happens, these examples constitute a catalogue of nearly every' plot device most commonly associated with sensation fiction, from bigamy to lost or stolen wills to murder. But as the author ticks off examples of legal ignorance, the essay’s force shifts. While, at first, it seems to be taking writers to task for failing to adhere with sufficient rigor to the conventions of realist representation, it turns out that this is not entirely' the case. What began as a demand for adherence to realist conventions ultimately collapses its critique on itself, admitting that only a legal expert would notice these mistakes, and for that reader, the errors about law would offer an extra boost to the novel’s entertainment value. According to this author, the accuracy' of the depiction of law and its procedures both matters a good deal— and it doesn’t at all. Law has become a resource for literary’ effect, which at once links the world of the novel to the world outside it, and operates as an autonomous set of devices for the production of ever more intricate and suspenseful plots.

Statutory fictions as an object of inquiry

with the fictions of judicature (judicial fictions). While judicial fictions have early been regarded as “the stealing [of] legislative power, by and for hands, which could not, or durst not, openly claim it”,⁷ in contrast, statutory fictions are a deliberate choice of the legislator, “who needs not feign” but “commands”.⁸ Although some scholars maintain that “legislators should avoid fictions”,⁹ statutory fictions are even the rule in civil law countries nowadays, due to peculiarities in the construction of legal relationships in many continental codes that I will comment on more extensively later in this chapter. Statutory fictions are not a new phenomenon, however. Since they date back to the heyday of Roman law, as the famous fictio lepis Cornelias illustrates, statutory' fictions have a long history both of use and of theoretical reception,¹⁰ and most of the arguments presently' used by scholars were already raised at the latest during the nineteenth or early twentieth century'.

Statutory fictions have multiple surface structures when appearing in the contemporary civil codes. While the French Code Napoleon, which dates from 1804, often only' “presumes,”¹¹ terminology varies considerably in statutory fictionality'. Regarding the legal status and the right to inherit of the unborn (but conceived) child, the German civil code (BGB, est. 1898) states that the unborn “counts as born”¹² (“gilt als geboren”). In a comparable provision in the Spanish civil code (est. 1898), the unborn “is held as born” (“tiene por nacido”, Art. 29), while § 22 of the Austrian civil code (est. 1812) states that the unborn is “regarded as born” (“wird als geboren angesehen”).

Although continental legal scholarship usually qualifies these rules as “legal fictions”,¹³ in terms of fictionality, the status of such deeming provisions, sometimes referred to as “linguistic fictions”,¹⁴ has already' been disputed among the early' scholarship. A significant number of scholars have objected to this qualification that statutory' fictions do not meet the general criteria of fictionality', a claim often based on the presuppositions that counterfactuality' is the relevant criterion. While, among the latter, it has been held that statutory' “fictions” are not at all a “factual” question,¹⁵ more differentiated views do not categorically exclude deeming provisions, but claim that it makes a difference whether a “legal” or a “natural” fact is “feigned” - thus whether the possible referents alluded to are natural (real) entities, or legal entities, the latter’s ontological status being questionable.¹⁶ I will, however, claim both views are equally' incorrect: neither can counterfactuality' (even in its newer clothing, with truth understood as “consensus”, see p. 15) be the decisive criterion for statutory' fictions, nor is the question relevant if concepts of natural (ordinary', extra-legal) language are concerned, or specific concepts of legal language use. It is particularly the latter question I will devote most part of this chapter to, for it is connected to another misconception: the newer theory' that it is a dissociation of ordinary' (natural) language use and legal language use that is constitutive for legal fictionality'.¹⁷

My essential claim is that, in order to explain statutory' fictions, no special theory' of legal fictional discourse is necessary'. Instead, statutory fictions can well be explained (and thus defined) by' using a Wittgensteinian understanding of language use in general and a theory of linguistic use as institutionalized practice in particular. I claim that statutory fictions - and maybe fictions in general - are nothing other than overtly marked provisional deviations from a practice of denotative use within a sufficiently institutionalized superordinate framework. Fictionality is then understood to consist in the mere particularity that within a certain institutionalized practice of language use (e.g. the legal use, or the statutory' use), a conflicting alternate linguistic practice of use is established, a practice, however, that does not globally replace the previous convention, but only suspends and thereby confirms the latter, creating an overt parallelism of practices that itself can become institutionalized (e.g. as the institute of “legal” or “statutory fiction”). I will claim that this solely relative, but hierarchical, definition (overt and limited deviation from the immediately superordinate practice) has the advantage that fictionality' can be talked about and referred to without resorting to any notion of truth, that it can be applied both in realist and nominalist systems, and that it can serve not only as a model both for statutory' fictionality in particular and legal fictionality in general, but also as a criterion for a general, transdisciplin-ary valid minimal definition of fictionality'.