Toward a formal definition of fictionality as institutionalized practice
While in the above cases functionalist considerations are helpful in explaining the “why” of statutory' fictions, the functional perspective also aids in constructing a purely formal definition of statutory' fictions from the surface structure of the above examples, following the insight that the above-noted legal fictions are nothing but linguistic practices which modify a pre-existing meaning. To understand continental statutory' fictionality' as solely' based on the arbitrary' choice148 to install a quasi-realist system for the means of regulating social reality', thus rendering statutory’ fictions into nothing but compensatory provisions that often could be avoided by' adapting or replacing the conceptual system, permits us to see statutory' fictionality' as a merely' relative question that can be captured by an equally relative formal definition based on the idea of institutionalized linguistic practices. Both types of statutory fictions discussed above - those which are usually referred to as counterfactual and those referred to as non-counterfactual - from a formalist perspective have clear common denominators which could well serve as criteria for a general definition of fictionality':
- • first, that within a certain practice of language use, a conflicting alternate practice of (denotative) use is established;
- • second, that this new practice does not globally replace the previous convention, but only suspends it;
- • and third, that it is overt both that the superordinate convention is suspended and that this suspension is limited, with the consequence that by marking the deviation as limited, the subordinate practice at the same time deviates from and reaffirms the conventions of the superordinate discourse.149
What legal fictionality' as practice therefore presupposes is nothing other than an existing convention of use that is sufficiently institutionalized, and the comparably' sufficient institutionalization of a divergent subordinate denotative practice (colloquially called “fiction”) within this superordinate practice. Since such definition of fictionality does not require the superordinate practice to be “factual” or “realist”, not only is the question of fictionality' to be understood as merely relative, but, furthermore, such institution can be meaningfully talked about and referred to without alluding to any notion of existence - and can be applied both in nominalist and realist systems of belief.
The fact that, in such relativism, only the relation to the directly superordinate practice is of relevance as a reference system is also the reason why I disagree with some of the newer definitions, such as Campbell’s assumption that legal fictionality “arises from the content of the rule being false when regarded as a question of fact according to non-legal classifications”,150 or with an even newer claim that legal fictions are a “true legal proposition asserted with the conscious recognition that they are inconsistent in meaning or otherwise in semantic conflict with true propositions asserted within some other linguistic system (or elsewhere in law)”.151 Although I strongly agree with the criterion of consciousness, I cannot concur with either the insistence on semantics alone or the claimed irrelevance of the question of which system is the referential system for deviation (“some”). According to the above assessment, the only relevant referential system is always the immediately superior system. I therefore also consider it an error to assume that legal fictionality is based on the fact that legal word meaning can deviate from natural word meaning, as Schauer recently claimed.152 It is in fact the deviation from a superordinate (conventional) legal use,15'’ not from natural, extra-legal use, that is constitutive for statutory fictionality, though often the conventional legal use and the natural language use will coincide. What is true, however, is that fictional discourse is in a way parasitic154 to the superordinate practice it is a part of - and therefore inevitably presupposes a superordinate practice of use. This superordinate practice can be “realist” or “natural”, the latter however being no requirement (contrary' to Schauer’s belief).
Although being “overt” or “marked” is also a necessary' property of this subordinate practice, and in the case of statutory’ fictions, overtness is usually secured by a certain terminology' used (“counts as”, “is held as”, “is regarded as”), the required markers are not necessarily semantical. As fictionality in general, as an institutionalized practice of use, is a pragmatic issue, it is enough, if, in the context of the superordinate discourse, the “nature” of the practice can be identified. That the subordinate practice is sufficiently institutionalized is thus especially relevant, when clear (semantical) markers are missing. Here, pragmatics will contribute a part by contextualizing a provision as fictional.
The ongoing dispute, as to which particular legal provisions are or at least historically have been “real” fictions, or which legal concepts can be “truly” called “dogmatic fictions” (e.g. as pertaining to the corporate person), is under such a definition also a mere question of form. The above definition is especially useful in this respect, since it also accounts for ambivalences, and is furthermore able to accommodate change in the status of a provision or concept - thus allowing a diachronic perspective, explaining why fictions can cease to be fictions if they are not commonly identified as fictions anymore, and why scholars seem to disagree more strongly nowadays as to whether certain provisions are fictions. A not unsubstantial part of the current disagreement pertains to the question what “to deem” or to “count as” in a statutory context literally means, and Wittgenstein’s pragmatic definition of the meaning of a word as being defined by its actual use in language accords well with an institutionalized understanding of statutory' fictionality in particular and legal fictionality in general. That, for centuries, legal scholars could identify statutory fictions by a certain vocabulary (“sirempf, “perinde ac si”, etc.) was legitimately based on the circularity that, in the context of statutes, these terms were already understood as pertaining to legal fictionality' as an institutionalized practice - and were deliberately used both by the lawmaker when installing a fiction, and by the recipient when assessing and applying the norm. The same circularity also applies to judicial fictions: a “w — esset, turn si — oporteref would have been immediately' identified as pertaining to a legal fiction both on the side of the producer and the recipient, and fictionality would equally have been evident if Numerius Ncgidius and Aldus Agerius (or their modern equivalents John Doe and Richard Roe)ln5 appeared as parties in a legal dispute. Especially' in the case of statutory fictions, the terminology of fictional makers in the continental codes (“count as”, “seen as”, “held as”) follows long-established traditions, being translations of the Latin keywords later institutionalized as part of usus modcrnus pandectarum, which found themselves respectively' incorporated in the continental legal discourse on the ius commune, and were - at least during the times of codification - produced and received under the latter presuppositions and in clear conscience of the implications resulting from such use. Although it was early on held by Demelius that one should not rely' too much on semantic markers, and while counterfactuality was still the key criterion, even formalist scholars (such as Meno-chio in his 1594 tractate) needed a second criterion in addition to the above markers to distinguish fictions from presumptions,156 a legal keyword approach was nevertheless usually considered safe. Even Demelius, despite upholding a definition based not on surface structures but on deep-level structures, had to concede that at least during a certain period, the keyword criterion would lead to the correct identification in practically all cases of legal fictionality.157 Some forms of literary fictionality' in fact share this apparent trait with statutory' fictionality': “Once upon a time” as an opening line is often a reliable criterion for a narrative being fictional, and a passage that contains “little did he know” also might often serve as an indicator of its fictionality', though the latter is, of course, less reliable than the former.
The above considerations also explain why' the fictional status of statutory fictions is more strongly contested currently than in the past, or why the status of dogmatic fictions (as corporate fictionality') always has been strongly' debated. In contrast to statutory' fictions, dogmatic fictions are often less explicitly' marked as fictions, making the (pragmatic) discursive context (e.g. as constituted by precedent or legal theory') decisive if an overt deviation is present. Also, both in the case of statutory' and dogmatic fictions, under the presupposition of a formalist definition, historical changes in the superordinate practice inevitably affect the fictional status of the subordinate practice, e.g. if in the case of statutory' fiction, a certain vocabulary' loses its marking function (e.g. if certain semantic or pragmatic signposts of statutory' fictionality - “to deem”, “to count as”, etc. - are no longer recognized as belonging to the established tradition of statutory' fictionality). From a formalist perspective, a statutory' fiction then inevitably ceases to be a fiction, for “forgetting” the fictional status of a practice either changes the superordinate framework of use or is itself based on a change that has already occurred in the superordinate framework, preventing past fictions from being recognized as such. Fuller already hypothesized on what would happen to a certain procedural fiction if the superordinate practice changed:
A fiction dies when a compensatory' change takes places in the meaning of the words or phrases involved, which operates to bridge the gap that previously' existed between the fiction and reality. This is a process that is going on all the time.158
Fuller also allowed for the fact that prolonged use might lead to a change in the superordinate system:
When the English Court pretended that the Island of Minorca was a part of the city of London once [...] there was little probability' that an isolated pretense would lead to a change of the word “London”, that it would embrace a spot in the Mediterranean. But even procedural pretense may lead to the development of word meanings.159
Comparably, another already historic change has more recently been noted: that “persona” (originally meaning “mask”) was once understood as a fiction even in context of the natural person.160
Legal discourse, however, has a particularity' here to be aware of: since it does not require a homogenous and parsimonious practice of use, competing (and thus contradictory') practices within a single superordinate practice are possible, as the provisions of the Swiss ZGB on the unborn clearly demonstrate.161
There are, of course, difficulties inherent in the above claims - as the question, whose perspective is decisive both for the questions of overtness in general, and in particular in the case of historical change. The possibilities are in fact numerous here: the reasonable recipient, the empirical majority' of recipients, the individual (and thus accidental) recipient, the legal scholar, the majority of legal scholars, etc.162 These difficulties, however, are not generic to legal fictionality', but are also present (and heatedly' debated) within fictional theory'.163 The question of perspective might also explain why even in the case of a formalist definition, fiction is sometimes falsely understood as a question of degree: As in the case of literary' discourse - and parallel to the formulation of categories (see p. 33-4) - institutionalized practices that have “naturally” developed (thus have developed over time instead of being invented and installed) have less clear boundaries, because either the members of the practice might adhere more or less strict to established rules, or the practice itself might have not been homogeneous from the beginning.
It needs to be further decided if the above criteria can already serve as sufficient criteria for fictionality, or only as necessary criteria, with additional criteria still to be established (e.g. in terms of speech act theory), which, in their generalizations for all types of fictionality, would, for example, allow to better distinguish fictionality from certain forms of non-serious use, the latter, however, not being a problem for the case of statutory fictionality. It is an advantage of a flat minimal approach here, that the such questions, however, need not (yet) be decided for the criteria to be operable, and that above provisional criteria can in fact serve at least as a provisional heuristic instrument of approaching the question of fictionality in general, despite a number of limitations, which need to be further investigated.
