Legal fictions and the limits of legal language
If understood as an assertion, to deem a child to be “born” before he or she is actually born for the purpose of being able to inherit (§ 1923 II BGB) seems to clearly conflict with factual reality'. Similarly, to deem fruit that have fallen from a neighbor’s tree to be fruit of the land they' have fallen on to (§ 911 BGB) also appears to involve an act of counterfactual imagination. Especially' the former, as an apparently' counter-factual assumption, might be the paradigm of statutory' fictionality', at least if understood as a proposition in metalanguage. It is also clear, that in these two cases, it could be held that a “natural” or “realist” perspective forced the lawmaker to overtly mark the provision as “counterfactual”, using a certain historically or systematically prescribed terminology (e.g. “deemed”, “count as”, “held as”, “is to be regarded as”). Accordingly, it has been strongly maintained that when assessing statutory' fictions, it makes a difference whether the feigning pertains to legal or natural concepts, assuming the latter not be comparable in terms of existence.62 While, in the former case, an extension of the respective legal concept might have sufficed to remedy a problem, in the latter case, realist convictions might have prohibited the lawmaker from simply extending a concept, forcing him to use the detour of an overt fiction instead (or to put it into Abraham Lincoln’s famous words, forbade to make a tail a leg). As early' as Roman times, it seemed axiomatic that there were “limits to the abuse of words which neither lawyers nor legislators should transgress”,63 and that “not even a statute can so abuse words as to impose false classification”.64 Regarding the unborn, “birth” as a concept seems to allow little conceptual wiggle room; and comparably, since fruit are understood to be part of the plant they originate from, also little conceptual leeway was to be expected in the case of § 911 BGB. The same can even be held for Jhering’s example that a Jew is feigned to be a Christian, or the old textbook case of a provision pertaining to a communal swimming pool restricted to use by' women that stated: “The pool attendant is deemed a woman in terms of the rules of this statute.” Consequently, one might assume that also one of the oldest fictions, the Roman feigning of a person to have died a free man at the time of his capture, though having much later died in captivity' (the aforementioned fictio legis Corneliae), or that a person continues to live despite his or her factual death, fundamentally differs in nature from the newer statutory fiction of § 49 II BGB, which treats a dissolved corporate society as if still “existing” until the liquidation has been completed - at least if one upholds the assumption that a corporate person is not comparable to a physical person from a metaphysical or ontological perspective.
The majority of statutory fictions, however, are conceptually less clear. What about those provisions in continental family law that deem a child not to be related to its father (e.g. § 1589 II BGB),66 or those that, on the contrary', deem a person to be the father who is clearly not the biological father? A similar issue is the past treatment of illegitimate children as orphans, or at least as fatherless:67 was a fiction unavoidable here since it is factually impossible to actually sever the biological relation of a child to its real father? Although the possible result of a child having more than one father has been understood as only beneficial by legal scholars,68 to correctly categorize these cases is more difficult than the first type of statutory fictions. It is at least debatable whether “related” is a legal or a non-legal concept, and whether it shares the same conceptual reality as “father”, which is usually understood to be of a more “natural” nature.69 The latter, however, is especially problematic, since legal and non-legal terminology are, from a genealogical perspective, irreducibly intertwined, with law having incorporated the majority of pre-legal conceptualizations while legal concepts have invaded the normal language to an extent that they now appear to be “natural”. As long as material existence served as a criterion both for truth and fictionality, an ad-rem relation allowed the necessary' differentiation; however, the consideration of truth and correspondence in the first chapter of this volume (cf. p. 11-25) has definitely weakened such link. Additionally, the conceptually' divergent treatment of the same issues in different social and legal orders furthers a certain relativity of standpoint. Similar to archaic German law, where being accepted as part of the family (understood as a rather formal unit not necessarily based on blood ties) was constitutive for being related,70 it could be claimed that it was considered equally “natural” in Roman law for a daughter to cease to be related to the father once she was married: it might not be a legal fact (only) that emancipation terminates previously existing family relations.71 It might even be considered equally natural that members of the Roman household, even if unfree, were tied so closely to the latter that they would inherit once they' were freed/2 These particularities, however, already make it difficult to classify an ancient Roman fiction: that blood relatives, who were not part of the household, to be able to inherit, had to be feigned to be related.73 Correspondingly, legal scholars have questioned the validity of the distinction between natural and legal factuality both in general and as a criterion for fictionality in particular.74 While Kelsen strictly' distinguishes between legal and non -legal use of the same word or concept and highlights the law’s authority to determine a certain use (such as the word “father”),75 Gaius’s treatment of constructive theft in context of the Law of the Twelve Tables seems to instead disregard the theoretical distinction between legal and non-legal use:
[TJhe law cannot turn someone who is not a manifest thief into a manifest thief any more than it can turn someone into a thief at all, or take a man who is not an adulterer or a murderer and make him an adulterer or murderer. What the law can indeed do is make a man liable to the same penalty just as if he had committed theft or adultery or murder, even though in fact he has committed none of these.76
Unfortunately, things do not seem to get easier if one considers fictionality pertaining to purely legal entities. While it is clearly marked as a statutory fiction that § 49 BGB deems a corporation to continue to exist despite it having been terminated, it has also long been debated whether corporate personhood itself already is a fiction, with the majority understanding the hypostatization of the concept of the natural person that led to corporate personality being fictitious, whereas others instead claimed corporate personhood to be either a nonphysical, but real entity, or a legal “abstraction”, merely consisting in a bundle of legal relations.77 But if the view of the majority that every' company is a fictional entity was correct, what would it then exactly' mean that § 49 BGB subjects such a fictional entity to the additional (now statutory') fiction that it persists to “exist”, presupposing that its “existence” in fact already has been terminated? Would the second “fiction” be less “false” than the first one? Similar considerations have been made pertaining to other legal constructions, both more abstract ones (power, obligations, duties, rights, etc., which already' Bentham listed as paradigms of fictitious entities),78 and more particular legal relations (as contracts, wills, declarations of intent, etc.). In contract law, for example, a number of provisions “feign” legal acts or declarations as being made or absent. While it has been claimed that contracts have a factual basis that precedes law, justifying them to be treated as a factual entity,79 and leading to a distinction between the “real” contract and the “legal” contract in some of the early scholarship,80 the respective statutory' fictions of contract law are often held to differ from the former types not only' in degree, but in nature, since they are said not to be “counterfactual”, at least not in the literal sense of the word.81 Alf Ross has commented on this issue,82 and in a newer essay, Baker maintains that the view “that an implicative contract, or promise” is “something patently untrue” is solely based on false “presuppositions” (e.g. that we imagine a contract to be “something primarily factual”).83 Regarding corporate persons. Baker in fact revived the nineteenth-century' discussion84 on legal personhood:
It is convenient to use anthropomorphic language - a body having a head and members - and this is sometimes said to be a fiction. But it is not fictitious in the same way that John Doe, or Cinderella, is a fictional human being.85
Throughout his essay, Baker insists on the differentiation between “reality”, “nature” and “existence” on the one hand, and “creatures of the legal mind” on the other, where there can be “nothing fictitious, in the strict sense of the term”.86 Kelsen already raised a similar claim in his 1911 treatise. Kelsen not only' highlighted the fact that fictions need to be distinguished from abstractions and legal constructions, but also that legal entities might even be incorrectly labelled fictions since they do not form a part of the factual world - and that to confuse them with natural entities would be a severe methodical error.87 During the same era as Kelsen, Tourtoulon also commented on this particular problem.88
From a functionalist perspective, the latter statutory' fictions share an interesting trait which makes them highly fruitful for my project. While in the case of the unborn (nascititrus) it might have been impossible to tackle the problem without a fiction, at least when presupposing a realist perspective, as far as mere legal entities and concepts are concerned, either an alternate provision or a redefinition of the legal concepts could have made a fictional provision superfluous. Instead of deeming that non-responsiveness to an offer is an acceptance in certain cases, the lawmaker could have simply legally redefined “acceptance” to include non-responsiveness in certain cases.89 When it comes to legal entities or relations, it generally' seems to be the case that a sole change in the surface structure could completely eradicate the fictional nature of a provision - a particularity that led to the early' claim that statutory' fictions were only in a “linguistic” sense fictional (Bierling, Leonhard, Somlo, Fuller)90 - and that due to the authoritative nature of law, from an ontological perspective, “as if’ was in fact equal to “is”. Since in these cases the difference between “normal” and deeming provisions seems to only be a matter of form, it is understandable that both functionalists and counter-factualists have claimed that statutory' “fictions” were not to be considered as “real” fictions. Unsurprisingly, this merely formal nature of statutory' fictionality'91 has been repeatedly noted, and most of the earlier scholarship on fictionality' (Bierling, Jhering, Kriickmann, etc.) already' dealt with the question of how legal fictions could be adequately replaced by nonfictional provisions that have the same effect.92 In the above-cited essay, Baker states:
Where a dog is deemed to be a cat or declared to be a cat, there is obviously no intention of defying or subverting nature. [...] But if a deed, unlike a dog, is purely' a creature of the legal mind, then it might be redefined without the need for fiction or deeming.93
A not insubstantial number of scholars tried to oppose this argument by' claiming that even in the legal realm, certain realist necessities sometimes make fictions inevitable. Kuntze in his 1856 monograph94 understands the legal realm as an organic system, which has its own natural laws, comparable to the natural laws in physics, with the consequence of truth and falseness mirrored equally in this artificial system. Within this system, provisions cannot be arbitrarily stipulated, but instead need to be integrated without contradictions, with fictions being an unfortunate91’ but necessary’ means to avoid contradictions in this quasi-realist system.96 Although the idea in this regard shares an overlap with pragmatist approaches, even mirroring Neurath’s criterion of truth (cf. p. 16), the legal order is, however, understood not only to possess certain organic treats (as a system that is considered not only to be “grown”, but to be an organic whole where everything has its proper place and function), but also as irreducibly tied to the real world. Consequently, both in the case of the nasciturus and the fictio le/jis Comeliae, Kuntze claims that a fiction was inevitable, since being considered a legal entity was literally impossible in the lack of a “material substrate” existent in the factual realm.97 Similarly, in ancient law, the stoic conviction that the unborn does not possess a soul might have precluded a nonfictional approach to the issue, even on the deep-level-structure of the latent norm. During the early twentieth century, such “legal mystification” (Kelsen)98 has, however, been harshly criticized - for example, by Esser, who condemns the inflationary “systematical confusion between legal and natural concepts” in recent scholarship.99 Such criticism started early, as Demelius’s opposition to Kunze’s argument shows.100 Correspondingly, though not considering statutory fictions to be “real” fictions, Kelsen asserts for legal fictionality in general101 that the legal realm has its own definition of counterfactuality, regardless of whether legal or natural concepts are used.102
