Abstract
Pierre Olivier distinguishes between two radically different conceptions of legal fictions: on the one hand, the conception of legal fiction developed by the commentators of the Middle Ages, which culminates in Bartolus’s definition; on the other hand, the conception developed by the nineteenth century German scholar Gustav Demelius, who was followed, among others, by Joseph Esser. The main difference between the two approaches is individuated by Olivier in the fact that, while the former consider legal fictions as essentially implying an actual fictional element, the latter deny this. In other words, according to Demelius and those who follow him, the term “legal fiction” is a misnomer. In this article, I first provide an example of a legal fiction. In the second and third section, I rely on this example to analyze and assess the two competing accounts. Finally, in the fourth part, I advance a syncretistic account of legal fictions, which should thus point to a possible middle ground between the two competing positions. As it is often the case, there is probably some truth to both accounts; the problem – I will argue – is that both theories tell only a part and not the whole of the story. More precisely, it will be argued that legal fictions essentially involve the structure of “as if”-statements, and that the one-sidedness of the two competing accounts derives from the fact that one focuses too much on the “if”-component (the assumption), whereas the other focuses too much on the “as”-component (the comparison).
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Notes
- 1.
See for instance [5, p. 804]: “A legal fiction is a rule of law which assumes as true and will not allow to be disproved something which is false but not impossible”.
- 2.
The example is due to Pfersmann [9].
- 3.
- 4.
The translation is mine. The original reads “Fictio est in re certa eius quod est possibile contra veritatem pro vertitate a iure facta assumptio” (cf. [8, p. 16]).
- 5.
A classic example of rebuttable presumption is the presumption of innocence: if this presumption could not be challenged, there would be of course no sense in having any (penal law) trial. The fact that legal fictions are not rebuttable is also stressed by the definition provided by Black’s Law Dictionary (see above, footnote 1).
- 6.
One could argue that, in the case in which the lifeguard is a man, it would be physically impossible for him to be a woman. Thus, we would not be allowed to assume that the male lifeguard is a woman. To this line of reasoning I would object that it presupposes too strict a reading of the notion of possibility at stake. What Bartolus stresses is that it should not be physically impossible to assume that the lifeguard is a woman. The fact that the lifeguard is actually a man and, thus, that it may be physically necessary for it to be a man does not play any role here. In other words, the possibility should not be construed as a de re but rather as a de dicto possibility.
- 7.
See previous footnote.
- 8.
Of course, this is only true under the rather uncontroversial premise that assumptions are closed under entailment.
- 9.
Less facetious examples show how the problem is indeed a serious one. One just need to think of the fiction of corporations as persons: if corporations really were persons, we would have to grant them a right to vote, a right to freedom of speech, and even a right to freedom of religion. The second and the third really happened in the Supreme Court’s law cases “Citizen United v. Federal Election Commission” (2010) and “Sebelius v. Hobby Lobby Stores, Inc.” (2014).
- 10.
Note how the same regimentation would be highly questionable in the literary context: we clearly do not want that Hector actually has all the properties that he would have if he would be a falling tree. This would lead to paradoxical inferences, as for instance that Hector is made of wood or has branches (I am indebted to Shahid Rahman for this remark).
- 11.
Of course, being a man and being a woman should be defined as having the relevant kind of DNA. Otherwise, the essentialist about sex would be refuted by the simple fact that we have sex reassignment surgery.
- 12.
Cf. above, footnote 6.
References
J. Bentham, The Works of Jeremy Bentham, Published under the Superintendence of his Executor, John Bowring, 11 vols. (William Tait, Edinburgh), pp. 1838–1843.
G. Demelius, Die Rechtsfiktionen in ihrer geschichtlichen und dogmatischen Bedeutung (Böhlau, Weimer, 1858)
J. Eggens, Over het fingeren van Rechtsficties (Erven F. Bohn, Amsterdam, 1958)
J. Esser, Wertund Bedeutung der Rechtsfiktionen (Klostermann, Frankfurt am Main, 1940)
B.A. Garner (ed.), Black’s Law Dictionary, 5th edn. (West Publishing Company, St. Paul, 1979)
E. Hölder, Die Einheit der Correalobligation und die Bedeutung juristischer Fiktionen. Archiv für die Civilistische Praxis 69, 203–240 (1886)
N.J. Knauer, Legal fictions and juristic truth. St. Thomas Law Rev. 23, 1–48 (2010)
P. Olivier, Legal Fictions in Practice and Legal Science (Rotterdam University Press, Rotterdam, 1975)
O. Pfersmann, Les modes de la fiction en droit et en littérature, in Usages et théories de la fiction, ed. by F. Lavocat (Presses Universitaires de Rennes, Rennes, 2004), pp. 39–61
A. Sturm, Fiktion und Vergleich in der Rechtswissenschasft (Helwing, Hannover, 1915)
H. Vaihinger, Philosophie des Als Ob. System der theoretischen, praktischen und religiösen Fiktionen der Menschheit auf Grund eines idealistischen Positivismus. Mit einem Anhang über Kant und Nietzsche (Felix Meiner, Leipzig, 1911)
P. Vranas, New foundations for imperative logic I: Logical connectives, consistency, and quantifiers. Noûs 42, 529–572 (2008)
P. Vranas, In defense of imperative inference. J. Philos. Log. 39, 59–71 (2010)
Acknowledgments
This work has been supported by the DFG ANR Project JuriLog (ANR11 FRAL 003 01). I would like to thank the following members of the project for their helpful comments and feed-back: Matthias Armgardt, Reinhart Bengez, Karlheinz Hülser, Bettine Jankowski, Sébastien Magnier, Shahid Rahman, Juliette Sénéchal, and Juliele Sievers.
Author information
Authors and Affiliations
Corresponding author
Editor information
Editors and Affiliations
Rights and permissions
Copyright information
© 2015 Springer International Publishing Switzerland
About this chapter
Cite this chapter
Bacigalupo, G. (2015). Legal Fictions, Assumptions and Comparisons. In: Armgardt, M., Canivez, P., Chassagnard-Pinet, S. (eds) Past and Present Interactions in Legal Reasoning and Logic. Logic, Argumentation & Reasoning, vol 7. Springer, Cham. https://doi.org/10.1007/978-3-319-16021-4_8
Download citation
DOI: https://doi.org/10.1007/978-3-319-16021-4_8
Publisher Name: Springer, Cham
Print ISBN: 978-3-319-16020-7
Online ISBN: 978-3-319-16021-4
eBook Packages: Humanities, Social Sciences and LawPhilosophy and Religion (R0)