Abstract
This chapter offers a definition of legal fictions and an evaluation of the role of legal fictions in legal practice, especially insofar as they enable legal change. The first part of the chapter defines legal fictions as any suspension of one or more of the required operative facts leading to the imposition of an associated normative consequence, whether this suspension is introduced because of (1) the absence of proof of some previously required fact; or (2) the presence of proof to the contrary. The second part argues that legal fictions have an unjustifiably bad reputation as enablers of legal change. This chapter makes a plea for seeing legal fictions as forms of tentative cognition that enable courts to communicate with each other, exploring whether a certain change in the law (i.e. precisely a suspension of a required operative fact in the imposition of a certain normative consequence) ought to be introduced at a more explicit level. Under the guise of this relational reading of legal reasoning, legal fictions become an instrument of careful experimentation—a way of testing the extent to which the potential introduction of a rule will be beneficial. Seen in this light, legal fictions are by no means signs of the immaturity of the system; they are, instead, dynamic resources that allow courts, over time, to balance flexibility and responsiveness with stability and predictability.
A version of this chapter was previously published as: ‘Legal Fictions and Legal Change’ (2013) 4 International Journal of Law in Context 442–465.
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Notes
- 1.
According to Gama, this volume, Chap. 16, this might be the case for some, but certainly not all presumptions. Gama’s careful, historically-contextualised, account of the similarities and differences—but especially the similarities—between the functioning of presumptions and legal fictions deserves much more careful attention than can be bestowed upon it here.
- 2.
See also Rescher (2006), who has used the optic of tentative cognition to understand and showcase the utility of presumptions. It is unfortunate that he does not discuss fictions. More broadly, this chapter endorses his plea for more interest in ‘lesser degrees of cognitive warrant’ (pp. xi–xii), and the relevance of that kind of warrant to legal epistemology.
- 3.
Methodologically, then, this chapter is part of a plea, which I have also made in other work (see, e.g. Del Mar 2011), for more collaboration between legal theorists and legal historians, but also between philosophers of law and philosophers of history. For another recent attempt at developing a multi-temporal, relational account of legal reasoning, though this time via the concept of narrative, see Del Mar (2013). More generally, see Del Mar and Lobban (2014).
- 4.
The quotes are: ‘… the pestilential breath of Fiction poisons the sense of every instrument it comes near’ (Bentham and Bowring 1962, vol. 1, p. 235) and ‘… in English law, fiction is a syphilis, which runs in every vein, and carries into every part of the system the principle of rottenness’ (Bentham and Bowring 1962, vol. 5, p. 92). To note disagreement here is of course not to engage in the proper, detailed critique that a justified disagreement would warrant. For an appropriately detailed discussion of Bentham’s various attitudes to fictions, see Quinn, this volume Chap. 4, and also Stolzenberg (1999), which lists some more helpful references.
- 5.
I.e. the adoption or creation of fictions by the legislature, see, e.g. Olivier (1975, pp. 130–131).
- 6.
Such as, for example, the fiction that judges never make law or the unity of law: see Fuller (1930–1931, p. 903). Bentham thought of these as theoretical ‘fallacies’, and was particularly critical of them: for a discussion, and a taxonomy of types of fictions Bentham identified, see Quinn, this volume, Chap. 4. For more on theoretical fictions in this volume, see Kelsen (Chap. 1), Kletzer (Chap. 2), Samuel (Chap. 3) and Schauer (Chap. 6).
- 7.
For example, the very concepts of legal right and duty, legal powers and liabilities, legal personality. Of these, Fuller says that they ‘represent devices essentially similar to the concepts of the physical sciences’, e.g. energy, matter and the force of gravity: see Fuller (1930–1931, p. 905).
- 8.
As when, for instance, one completes three fictitious sales in order to be free of one’s father’s rule in Roman law (see Mitchell 1893, pp. 253–254). It is pertinent to add here that Mitchell defines a legal fiction as a ‘device for attaining a desired legal consequence, or avoiding an undesired legal consequence’, dividing such devices further into three kinds: ‘(1) the use of one or more of the existing laws in a way unforeseen and unintended at the outset,’ this being precisely the above example of three fictitious sales; ‘(2) the assertion that certain facts do or do not exist, contrary to the truth of the matter’ (here Mitchell has in mind jurisdictional fictions, such as one when one treats Minorca as a suburb of London); and ‘(3) fictions of relation,’ which he further subdivides into four categories, but the essence of which is attribution (e.g. of liability from master to servant) (see Mitchell 1893, pp. 253–255). The fictional use of legal instruments by citizens is also familiar in Jewish law (given its dense regulation of everyday life) and in Islamic law (where they are called ‘hiyal’, which have sometimes been negatively characterised as ‘bogus transactions’, and more recently defended as creative solutions needed to offer remedies for those who sought them: see Horii 2002). On legal fictions in Jewish law generally, see Hayes (2004) and Moscovitz (2003)—and in this volume Chap. 15.
- 9.
Smith (2007) has recently attempted to add to this another category which he calls ‘new legal fictions,’ but these—e.g. the reliability of eyewitness testimony, the ability of jurors to disregard testimony, and predictions of future dangerousness—seem, and are treated by Smith, as more like biases, unjustified historical relics or weaknesses of the system. See also the discussion of Smith by Knauer (2010).
- 10.
Fuller was not the first to do so. He probably took the approach from Vaihinger. Frank also reminds us that, like Vaihinger, Tourtoulon, an important French jurist, defined a fiction as the statement of an erroneous fact with knowledge of its falsity (see Frank, 2009 [1930], p. 339; and see Tourtoulon 1922). Referring to fictions as ‘statements’ is by no means a feature of past theories—most recently, for instance, Riles (2010, pp. 15–16) has defined a legal fiction as ‘a legal conclusion—an act of judgement—that takes the form of a factual statement: it is a theory presented as if it were a fact,’ though this seems an improvement, for on this view the ‘statement’ is understood to be nothing more than the form of ‘an act of judgement.’
- 11.
Though perhaps Fuller was attempting as broad a definition as possible, so as to encompass the other kinds of fictions he includes (as noted above). For a discussion on the extent to which fictions ought to be thought of as propositions, see Petroski (2014, this volume, Chap. 7) of this volume. It is certainly important, as Petroski illustrates so well, to pay attention to the rhetorical and communicative functions of fictions, not only as between members of the legal community, but as between those versed in legal discourse and those not. My focus here—which I think is compatible with Petroski’s—is on one particular communicative function of legal fictions, which seems to me to have been underestimated, if not wholly neglected, namely the manner in which they facilitate communication between courts across time.
- 12.
At another moment, drawing on the work of German jurist Bernhoft, Olivier offers another definition that seems yet more accurate: a ‘fiction is a legal rule by which the same legal results are ascribed to a specific fact (the fiction base) as those attached to another fact (the feigned fact). One first imagines the set of facts B, i.e. the imaginary facts and considers what legal consequences these would have had. These legal consequences are then transferred to the set of facts, A, i.e. those to which the fiction will apply’ (Olivier 1975, p. 21). Nevertheless, to call this a ‘rule’ is misleading—this chapter argues that a fiction is often employed precisely in order to avoid creating a rule. In other words, one suspends the operative fact of the rule containing normative consequences one thinks should nevertheless follow. This may help answer the question Olivier raises, namely: ‘why are the rules pertaining to the feigned situation applied to the fiction basis? By what process of logic and law is such a transference authorised or allowed?’ (Olivier 1975, p. 21). The short answer is: there is no transference—there is just temporary suspension. The justification for a more stable suspension, and thus potentially the introduction of a new rule, might be the normative impetus created by a string of cases in support.
- 13.
Again, Olivier is not the first to make reference to assumptions. Ubaldis, a fourteenth century Italian jurist, referred to legal fictions as ‘false assumption[s] known to be contrary to the truth’ (see Jones 1940, p. 170). Interestingly, Maine, who we will return to in the second part of the chapter, referred to fictions in a broader sense than ‘fictio’ in Roman law (i.e. as a false averment) ‘to signify any assumption which conceals or affects to conceal, the fact that a rule of law has undergone alteration, its letter remaining unchanged, its operation being modified’ (Maine 1931 [1861], p. 22)—it is noteworthy that this definition includes what is often seen to be the most negative feature of fictions, i.e. concealment.
- 14.
This fiction is also a good example of the preservation of the general principle, i.e. in this case, a normative endorsement of the importance of marriage before birth in the community. To be absolutely clear: the operative fact of ‘marriage before birth’ is suspended in this case, but no general principle is articulated, thereby avoiding endorsing that practice.
- 15.
Sometimes Olivier uses the language of deemings in his examples—as when he says that it is a fiction ‘that in the case of prevention of performance it is deemed that performance had been rendered’ (Olivier 1975, p. 134). One could read this generously, but even then this is distinguishable from the way fictions are approached in this chapter, i.e. it seems more conclusive and statutory in character than the tentative judicial use made of fictions. More is said about deemings below.
- 16.
(1970) 1 All ER 18.
- 17.
Though with the qualification added that to be properly understood and evaluated, this fiction cannot be looked at in isolation in just this one case, but must be traced across time.
- 18.
See Fuller (1930–1931, pp. 513–546).
- 19.
Deemings were in use in Roman law, often again very stipulative in character. Thus, for example, it was the case that ‘a captive returning from captivity shall be deemed always to have been in residence in the Roman state’ (see MacLean 1999, p. 3). Here, there is no prior rule the operative facts of which are being changed—instead, a rule in the form of a deeming is created in order to attach a familiar normative consequence (i.e. flowing from uninterrupted residency) to a new class of persons (i.e. those who had been in captivity).
- 20.
The example comes from Rescher (2006, p. 3).
- 21.
Another related distinction here is that between fictions and hypotheses, though this discussion is more relevant when comparing allegedly fictional devices in law and in science. The distinction is that hypotheses are directed towards reality, i.e. they take a stance (though a defeasible one) on what is the case, whereas a fiction is a device known to misrepresent reality, but useful because of that. Perhaps the most important source for a discussion of this distinction is Vaihinger’s (2009 [1925]) The Philosophy of ‘As If,’ and see also: Frank (2009 [1930], p. 339), Samek (1981, e.g. p. 301), Fine (1993, p. 7), and Fuller’s (1930–1931, pp. 877–910) third essay on fictions, which is essentially devoted to exploring and evaluating Vaihinger’s contribution. More generally, for Kelsen’s view of Vaihinger’s book, see the translation in this volume by Christoph Kletzer (Chap. 1) and his commentary (Chap. 2).
- 22.
(1799) 8 TR 308; 3 Esp. 8.
- 23.
The internal quotes are from a torts text book.
- 24.
See Vermeer-Kunzli (2007, p. 43).
- 25.
The thought is Fuller’s: ‘a metaphorical element taints all our concepts’ (Fuller 1930–1931, p. 894).
- 26.
More generally, concerning the comparison between legal fictions and metaphors, see Stern, this volume, Chap. 8; and in the broader context of how accounts of legal fictions relate to accounts of the nature of language, see the chapters from Part II of this volume.
- 27.
- 28.
A feature, it ought to be remembered, not only of the older common law, but also, at certain times and in certain places, of Roman law. I say at ‘certain times and certain places’ for generalities about Roman law are rife with danger—as is shown by Schiavone’s (2012) recent masterly portrayal of the changing culture of Roman law.
- 29.
Fictions used in this way may indeed be said to be dishonest and concealing, and might have indeed been justifiably included in Bentham’s uncompromising attack on judicial artifice and corruption.
- 30.
This approach is probably not broad enough to include the use of fictions to bridge gaps between substantive and procedural requirements. For a discussion of this function in the case of bridging the gap between substantive requirements of ‘individualised reliance’ and the procedural requirements of ‘predominance of common issues’ in the context of class actions in private securities litigation see, Gordon (this volume, Chap. 18) of this volume. From the perspective of this chapter, it seems at first blush that one could try to accommodate that example by conceptualising it as using a fiction to manage difficulties encountered with finding proof of reliance. Looking at it more carefully, however, shows that this would be a misreading of the example: the point in that context is less about the difficulties of proving reliance, and more that if one proves individual reliance (as the substantive requirements demand) then one will not be able to satisfy the procedural requirements of bringing a class action. The use of fictions in such a context may very well be less than ideal and necessitate the legislative creation of an explicit rule not requiring proof of individual reliance in class actions under the Securities Exchange Act of 1934.
- 31.
This is familiar from Roman law where, at one point, there were separate procedures/personnel for framing the legal issue and trying the facts (see, e.g., Schiavone 2012, p. 139). This has some affinity with the early procedures of irrational proof in the common law.
- 32.
Having said that, no claim is being made that the approach taken here is inapplicable to other legal cultures. Indeed, to the contrary, there is good reason to think that most, if not all, legal cultures need devices—whether they call them fictions or not—that allow them to incrementally change the law by, let us say, ‘playing with the facts’, i.e. suspending and eventually dispensing with, or in general changing over time, the operative facts attaching to certain normative consequences. For discussions of Roman law and legal practice that might bear this comparison out, see Yntema (1950, 1966–1967), Riccobono (1929), Ando (2011), Schulz (1946), Schiavone (2012), Watson (1995), and Thomas (2005). Indeed, Last Stone’s (2007) paper (as discussed below) focuses on Rabbinic legal reasoning, especially by reference to aggadot, and here, precisely via techniques of narrativisation, there may indeed be many overlaps with common law reasoning; see also, on narrative in Jewish law (Simon-Shoshan 2012). In this volume, on Roman law, see Ando (2011), and on Rabbinic law, see Chap. 15.
- 33.
This chapter does not make explicit links with the philosophical literature on pragmatism, but see, in this volume, Lind (Chap. 5), for a sympathetic approach to the use of legal fictions from within the classical pragmatist tradition in philosophy.
- 34.
See, for instance, Kerchove and Ost (1992). Vermeer-Kunzli translates them as saying that ‘far from representing a dysfunction of the law’s discursivity, fictions merely push the limits of the very efficacy of a discourse, in narrative or performance, firmly established in “its” reality. Classical jurists pretend to believe that fictions constitute an underestimated or unnatural reality, and that it is possible to bypass them, without deviations and artificial constructs, in order to grasp reality as it is. But, since reality is necessarily elusive, being nothing more than the product of conventional nomination, the fiction will appear not as a deficiency but rather as the manifestation of the nature of legal discourse’ (see Vermeer-Kunzli 2007, p. 42). Though this is perhaps a back-handed compliment, for it suggests that all law is fictional, and unavoidably so. This echoes Kelsen’s (1960) criticism of Vaihinger’s The Philosophy of ‘As If’. See also, in this volume, Kelsen (Chap. 1) and Kletzer (Chap. 2).
- 35.
Though not in this volume—for a particularly balanced evaluation, see Lind, this volume, Chap. 5.
- 36.
Diamond, in his valuable, if short, discussion of these three modes of change in Maine, adds a fourth (in the same spirit): re-classification (this may be similar to what Ibbetson calls ‘conceptual recharactarisation of claims by litigants (or their lawyers)’: see Ibbetson 1999, p. 296). He summarises this mode of legal change as involving ‘taking a set of facts, a claim for relief, which naturally falls within one class of writs, and reclassifying it so as to bring it within a different form of action in the other class of writs’ (Diamond 1991, p. 252). This is in the same spirit because ‘the legal rule … [is] not directly altered or repealed. But the consequence of the legal rule … [is] avoided by reclassifying the claim’ (ibid.). Diamond is not exactly complimentary, however, calling this mode of change a ‘sleight of hand’, albeit an important one, ‘for the court cannot be seen to attack the legal rule directly’ (p. 253). In evaluations of legal fictions one sees the relationship between the courts and legislature being made prominent—it being the latter that is said to have legitimacy to change the law—and positive (rather than competitive) relations between courts are ignored. Another prominent typology of legal change was offered by Weber, identifying three sources of change: legislation, mutation of custom, and judge-made law—for a discussion, together with reference to legal fictions as a further source, see Wilder (2012). Wilder also reminds us that Savigny referred to fictions as ‘polite discontinuities’ (see Wilder 2012, p. 34). By contrast, this chapter makes a plea for seeing fictions as potential discontinuities, and more experimental or tentative than polite.
- 37.
I cannot resist quoting Holmes here: ‘The truth is, that the law is always approaching, and never reaching, consistency. It is forever adopting new principles from life at one end, and it always retains old ones from history at the other, which have not yet been absorbed or sloughed off. It will become entirely consistent only when it ceases to grow’ (Holmes 2009 [1880], p. 35).
- 38.
It is worth adding here that Pound notices that a running theme through those examples (of ‘dogmatic fictions’) is that of moving away from requiring ‘actual and direct intention’ (Pound 1959, p. 455). This is clear, too, in the case of the constructive trust, which Pound discusses at some length, where originally, the law would only impose a trust on a person if that person had assumed it expressly; slowly, incrementally, courts began to impose trusts if property was acquired as a result of a breach of fiduciary duty, or through fraud or mistake, and increasingly in other circumstances—all the while moving away from the evidentiary anchor of actual and direct intention. What Pound could have been clearer about is the practical context of these expansions, which had to do not only with the granting of remedies to those perceived as worthy claimants, but also with the evidentiary difficulties faced by those claimants (i.e. they simply could not prove any actual and direct intention).
- 39.
Earlier in the book, Olivier reports on both objections made and compliments paid to legal fictions. The objections are: scientific untruthfulness; fictions create uncertainty; fictions conceal judicial creativity; fictions hinder systemisation of the law; fictions undermine respect for the law; fictions can be applied and developed indiscriminately (see Olivier 1975, pp. 88–91). The advantages are: fiction facilitates thought; fictions serve as terminological devices; that fictions are a form of short-hand, allowing for ‘economy of speech’; and that fictions make the language of the law ‘more evocative and understandable’ (see Olivier 1975, pp. 91–92).
- 40.
An example that might bear this out is Olivier’s criticism of the common law’s resort, in contract law, to implied terms, as opposed to the introduction of the concept—as in the civil law—of good faith (see Olivier 1975, p. 125). But there is a marked difference between the incremental, fact-heavy, case-by-case implication of terms, and the introduction of a general principle of good faith, which, when introduced without the accumulation of case law behind it, is likely to give little guidance to claimants and their lawyers, and which may create more uncertainty than the continual use of a fiction.
- 41.
Though not only in the common law: e.g. Glenn (2007), looks at how incremental change comes ‘about in the expression of the law and in its avoidance’ (p. 241) in Islamic law. Thus, ‘parties can set up transactions which might be seen as shams, evasions, fictions or just plain tricks … so as to remain formally outside the range of prohibited conduct. Riba is prohibited between you and me, but if you need a loan and I have money you can sell me your watch, and agree at the same time to buy it back at a later date, for a higher price (the double sale)’ (p. 202). Glenn notes the similarity between fictions in Islamic law and in the common law: e.g. ‘There were many tricks and fictions, in the Islamic manner. To avoid the (then) prohibition of interest, living security (le gage vivant) was used (the lender kept the land used as security, and the profit from it). The dead security (mortgage) came later, with the allowance of interest, such that borrowers could just pay the interest and keep the fruits of the land for themselves. Fictions were many …’ (p. 241). See also footnote 8, above.
- 42.
- 43.
What needs to be avoided here, if Hutchinson’s view is to avoid being self-contradictory, is determinism about the role of ideological forces.
- 44.
For more discussion on the importance of ‘re-description’ in legal reasoning, see Amaya (2011).
- 45.
For an example of the opposite view, namely that the common law is driven by transcendent, unchanging principles, see Epstein (1980).
- 46.
Reasoning by reference to an imaginary perspective, such as the officious bystander in contract law, or the reasonable person in many areas of the law.
- 47.
As Hutchinson (2005, p. 270) notes, ‘there are no permanent solutions to life’s problems because life is problematic, and any effort to resist that conclusion is itself a problem.’ What needs to be added here is that what we understand to be a problem changes over time.
- 48.
For example, ‘the fault standard in Anglo-Canadian negligence law has had such a relatively long and successful life because … it has been malleable enough to adapt itself to a host of changing demands and expectations … from injurious acts to misleading statements, from physical damage to economic losses, and from novices to experts’ (see Hutchinson 2005, p. 265).
- 49.
For an argument that not all fictions used in the common law were about enabling change—and for valuable insights on the role of fictions before the nineteenth century reforms—see Lobban, this volume, Chap. 10.
- 50.
(1972) 3 All ER 1008.
- 51.
For a related and sympathetic analysis of the use of fictions in this line of cases, see also Lee, this volume, Chap. 12.
- 52.
It bears noting that this is never quite settled, for whether a case is treated as significant (leading etc.) or not is a contingent matter, and itself a sign of how the law changes.
- 53.
This, incidentally, is another important institutional feature of the common law that helps keep it dynamic: the fact that there are separate opinions creates a fuller and more alive set of resources than would otherwise be available if all judges had to agree on a single formulation and a single description of the present facts and the facts of past cases (either relied on or distinguished).
- 54.
As was required by Wardlaw v Bonnington Castings Ltd (1956) AC 613; see also Hope (2003, p. 592).
- 55.
One could say, more strongly, that the House replaced that operative fact with another one, viz. ‘materially increasing the risk’, the onus then shifting to the NCB to show that they did not materially increase the risk (it is important to add here that the mechanics of onus are another very important device used to change the law in subtle ways). But to say this feels too strong, and smacks of wisdom in hindsight (given how subsequent cases have gone on to interpret McGhee). One sees here how difficult it is to offer an appropriately temporally-sensitive reading.
- 56.
For an insightful statement concerning the difference between using fictions and deploying analogy, see Stern, this volume, Chap. 8.
- 57.
Though it needs to be said that this case is hardly a good example of concealment, for the Lordships were relatively open and transparent about their struggle with the requirement of material contribution; and, as indicated, Lord Wilberforce was also explicit in stating he was employing a fiction.
- 58.
(1988) AC 1074.
- 59.
(2002) 3 WLR 89.
- 60.
- 61.
(2011) UKSC 10.
- 62.
(2011) 2 WLR 53.
- 63.
To assert they amount to the same thing might be another way—a less controversial way—of replacing the former with the latter, for arguably the former is the broader test.
- 64.
For an instructive discussion of Sienkiewicz and Willmore, see Laleng (2011).
- 65.
In that respect, see the decision of the Supreme Court in what is known as the ‘EL Trigger Litigation’: BAI (Run Off) Limited (In Scheme of Arrangement) and others v Durham and others (2012) UKSC 14.
References
Cases
BAI (Run Off) Limited (In Scheme of Arrangement) and others v Durham and others [2012] UKSC 14
Des Salles D’Epinoix v Royal Borough of Kensington and Chelsea [1970] 1 All ER 18
Exall v Partridge (1799) 8 TR 308; 3 Esp. 8
Fairchild v Glenhavon Funeral Services Ltd and Others [2002] 3 WLR 89
McGhee v National Coal Board [1972] 3 All ER 1008
Sienkiewicz v Grief (UK) Ltd [2011] UKSC 10
Wardlaw v Bonnington Castings Ltd [1956] AC 613
Willmore v Knowsley Metropolitan Borough Council [2011] 2 WLR 53
Wilsher v Assex Area Health Authority [1988] AC 1074
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Acknowledgments
This chapter grew out of discussions at the workshop on Legal Fictions, held at the 2011 IVR Congress in Frankfurt. My thanks to all speakers and participants at that workshop. Special thanks for helpful comments and discussion to Randy Gordon, Michael Quinn, Karen Petroski, Simon Stern and William Twining.
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Del Mar, M. (2015). Legal Fictions and Legal Change in the Common Law Tradition. In: Del Mar, M., Twining, W. (eds) Legal Fictions in Theory and Practice. Law and Philosophy Library, vol 110. Springer, Cham. https://doi.org/10.1007/978-3-319-09232-4_11
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