The form and function of statutory fictions

Early in the renewed treatment of legal fictionality, three distinct approaches on statutory' fictions were taken. Regarding the criterion of counterfactuality, statutory fictions were either understood as counterfactual or non-counterfactual forms of legal fictionality. The alternative was that they were claimed to be wrongfully labelled “fictions”. In the latter tradition, different strategies to deny deeming provisions the status of fictions were applied. Statutory fictions were excluded from the label “fictions” either for not being counterfactual (Kelsen, Somlo), or they' were said to lack a certain imaginative character constitutive for legal fictionality' (Ross).¹⁸ In the former tradition, Baker, in his 2001 essay, holds that statutory' fictions cannot be fictions, since “rules of law cannot be true or false in the factual sense”,¹⁹ and the latter argument was recently revived by Stern,²⁰ who has investigated the question whether a particular narrative and imaginative engagement was inscribed in legal fictionality. As does Campbell,²¹ Stern does not categorically' exclude deeming provisions from the category' of legal fictions, but assumes that they often do not share the same constraints he understands as constitutive for a fiction.²²

Functionalist approaches also deprived statutory fictions of a place, e.g. for not being expedient, or, because, as the product of an all-potent lawgiver,²³ these fictions’ intention was not to mask the fact that “a rule has undergone alteration”.²⁴ Even Jhering, who defines legal fictionality as a combination of form and function,²⁵ considers those statutory' “fictions”, which are merely linguistic, not to truly belong to the category'.²⁶ According to Jhering, only' those provisions deserve to be truly called fictions where “an affair is so violently pressed together” that it then fits a legal rule, demanding from the “the legal imagination

[...] to think one and the same thing in a different ‘gestalt’”.²⁷ Comparably, Leonhard distinguishes “merely formal ‘fictions’” from “real fictions”.²⁸

Sometimes even an interesting mix of quasi-metaphysical, formalist and functionalist approaches can be found. Instructive here is the often reiterated dictum of Kelsen, that statutory' fictions are in fact not fictions in the “true” sense, since, as regulative shortcuts²⁹ serving the mere aim of legal economy,³⁰ they do not consist in an “imagining ‘as-if’’³¹, but in a “treating ‘as-well’”.³² Fuller adequately calls these particular statutory' fictions “abbrevatory fictions”,³³ after de Tourtoulon’s (and Savigny’s³⁴) qualification as legal “shorthand”.³⁵ While rejecting judicial fictions for not being expedient, thus assuming a functional position, Kelsen, when deciding the issue of statutory' fictionality, instead resorts to an examination of the performative status of the illocution, later considered characteristic for speech act approaches. Here, the argument of a categorical impossibility' of counterfactuality³⁶ and the question of the illocutionary' nature of the provision are furthermore profoundly interlinked: analogously' to Sidney’s dictum on the poet, Kelsen claims that “the law affirms nothing”.³⁷ Many of Kelsen’s contemporaries have assumed a similar viewpoint,³⁸ presuming counterfactuality to be the key criterion for fictionality' in general, and denying the latter to statutory fictions, since, in deeming provisions, an illocutionary act other than an assertion is said to be performed. Two years before Kelsen, Somlo stated in his 1917 monograph:

Since legal clauses are not assertive, but directive clauses, and [...] the realm of fiction are assertive clauses, directives cannot contain fictions in this general, non-Iegal sense.³⁹

Although Kelsen has been understood as particularly' opposed to statutory' fictionality, it is evident that, in light of fictional theory', a revision of the above assumptions is long overdue. It is relevant here not only' that fictional theory' can in fact account for non-counterfactual fictions, but also that it has later been maintained by' proponents of speech act approaches that fictional illocu-tions were in fact not assertive (cf. Chapter 1, p. 25-7).

Similar considerations must apply to the question of imaginative engagement as criterion. While Kelsen understands fictionality' to be possible in judicial decisions, despite their authoritative nature,⁴⁰ he, in the tradition of Demelius, also maintains for statutory' fictionality' that it would be incorrect to assume the judge being commanded to counterfactually imagine an equality of situations.⁴¹ Instead, statutory' fictions are understood to consist in nothing other than the operational shortcut that two situations are equated in terms of their legal consequences (Savigny, Demelius).⁴² In Kelsen’s essay, it remains unclear, however, if, though the situations are not truly “imagined as equal”, some sort of imagining is nevertheless involved.⁴³ Fictional theory' has not without reason long grappled with the question of whether the imaginative engagement in fictionality' is a real confusion of the feigned with the real, or consists in a distanced or mixed receptive stance. The latter was, in the context of legal fictionality, examined not only by Demelius, but also by Billow and Leonhard.⁴⁴ While Leonhard assumes that the law in fact “prescribed” that “in every single case of application, a non-existing fact had to be imagined”,⁴⁵ Billow, in his 1879 essay, has pointed at statutory fictionality as an instrument that intentionally engages the human imagination by constituting a “command to the judge to imagine”.⁴⁶ Tourtoulon has also identified a general imaginative in legal fictionality that reigns in the shadows behind the obvious merely operational aim of legal fictionality, understanding legal fictionality to consist both in a functional and psychological dimension, with the latter drawing on “the desire inherent in human nature to evade unpleasant realities, and to evoke pleasant imaginaries.”⁴⁷ Jhering also assumed an implicit command inherent in statutory' fictions addressed to the judge, which required him to “regard — as if”.⁴⁸ For Jhering, however, only some, but not all, statutory' fictions demand “from our imagination [...] to think the factual relation different”.⁴⁹ More recently, it has also been pointed out that, already for Fuller, the question of a certain “intellectual operation” of pretence distinguishes dead from living fictions, describing “the death of fiction [... ] as a result of the operation of the law of economy of effort in the field of mental processes”, eliminating a previously existing imaginative dimension characteristically inherent in legal fictionality.⁵⁰ Some of Kelsen’s contemporaries, though assuming that the lawmaker indeed only' commands, have also accounted for forms of legal fictional imagination as part of statutory' fictions. Kriickmann, though agreeing with Kelsen on the performative nature of statutory' fictionality, nevertheless seems to presuppose that the “command to treat ‘as if”⁵¹ is a qualified form of an “imaginative treatment ‘as if”. ²

Within the latter positions, however, differences again exist, e.g. as to whether some statutory' fictions have factual contents that allow true fictionality, while others haven’t,⁵³ or as to what exactly a particular provision means. That it is correct to not only consider the surface structures is something Searle has emphasized?⁴ The problem is, however, that scholars have extracted very different deep-level structures from the same surface structures of statutory deeming provisions.⁵ The fact that in some of the codes presumptions and statutory' fictions share the same vocabulary' also complicates the matter.'’⁶ In the case of the statutory' fictions of the continental codes, the latter problem is furthered by the particularity that scholars commonly' not only presume the usual linguistic dichotomy of surface and deep-level structure, but, as will later be shown, need to add another deep-level dimension to the equation: the “inner system” of latent commands, that, in the case of the continental codes, are, however, (re-) presented not as commands, but in a quasi-realistic system of propositions that have an assertive surface structure (“outer system”).⁵⁷ ’

The arguments of the above debate also show not only that an agreement is far from being found, but that the debate shares a certain dogmatic circularity - or that it is not fruitful at least to my project (which aims at using legal fictionality to develop a transdisciplinarily' valid criterion for fictional discourse in general). Most of the above approaches presuppose to know what “real” fictionality is in general, or at least what legal fictionality consists in - and thus from the start include or exclude statutory' fictions from the category' of legal fictions, depending on which definition of fictionality is presupposed. By doing so, the debate on statutory’ fictions in a way mirrors the debate on fictionality' in fictional theory' - and my suggestion to choose an empirical perspective in the latter case (cf. p. 35) is my' justification also to assume an empirical approach to statutory’ fictions in this essay. Instead of excluding particular statutory’ fictions or statutory' fictions in general from the category' “fiction”, I will provisionally presume statutory fictions to in fact be a form of fictionality’ for the sole reason that statutory’ fictions historically' were often labelled “legal fictions”,⁵⁸ and in fact have even been considered the paradigm of legal fictionality' (Jhering). ⁹ Also, in the case of the continental civil codes, both in terms of their structure and terminology', deeming provisions are genealogically closely' linked with the treatment of legal fiction in the Roman legal tradition and the usus modernus. To be “seen as”, “held as” or “count as” were the vernacular translations of the most common keywords pertaining to Roman legal fictionality' debated in early modern continental legal discussion,⁶⁰ and since most of the continental codes were drafted in the period between the end of the eighteenth century and the late nineteenth century', lawmakers who chose to include deeming provisions did so with a clear awareness of the terminological and technical origin of these provisions. It can even be assumed that the authors of such provisions were decisively aiming at incorporating “fictions” in their laws and statutes. Furthermore, many' of the “new” civil codes had been recognized as a deliberate institutionalization of the Roman legal tradition by' contemporaries⁶¹ - and thus, at least in the early application of these codes, lawyers and judges would immediately identify many provisions as classical legal fictions on grounds both of content and terminology, the latter demonstrating a visible connection to legal fictionality' as instituted in the legal system prior to the times of codification.

Due to the above-mentioned particularities of my approach (empirical basis, transdisciplinaiy perspective), it is particularly irrelevant for me whether statutory' fictions are “correctly” labelled as legal “fictions”. Instead, I will try' to extrapolate those characteristics of statutory’ fictionality' that could serve as criteria for a definition of fictionality' in general that is not bound to the classical notion of counterfactuality'. Since statutory' fictions have often been categorized as non-counterfactual, or even non-assertive (Kelsen, Somlo, etc.), this type of legal “fiction” might serve particularly well in providing such a definition. Because this chapter is part of an overall project that aims at involving the legal discussion in the ongoing debate on finding a transdisciplinaiy definition of fictional discourse as part of fictional theory’, it is also necessary' for me to ignore those particularities that distinguish legal from literary' fiction, and instead focus on the common denominators. It might appear that by doing so, I oppose approaches such as Simon Stern’s and Andrei Marmor’s in this volume, which concentrate on the differentia specifica of literary' and legal fictionality'. The contrary, however, is actually' the case: I think the latter approaches are valuable contributions when it comes to further establishing a taxonomy of sub-types of fictional discourse and differentiating the legal fictional discourse (or even statutory fictionality) from other forms of fictionality. When the aim is to first establish a transdisciplinary category of fictional discourse in general, however, it is inevitable to neglect those particularities and instead focus on the common denominator(s).