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Legal Fictions in Theory and Practice, (Maksymilian Del Mar and William Twining, eds., 2015).

Law is filled with legal fictions, roughly defined as statements known to be false but treated as true by legal actors to achieve a purpose. No one is deceived by legal fictions, and the consequences of the fiction are generally recognized. The early common law was filled with fictions, often utilized to satisfy pleading or jurisdictional requirements. Well-known examples are fictional statements about lease and ejectment necessary for the action of ejectment, and statements about goods lost and found necessary for trover.1 Perhaps the most infamous example is Mostyn v. Fabrigas (1773), when Lord Mansfield concluded that Minorca was in London for the purposes of obtaining jurisdiction in the case.2 By the nineteenth century, after Bentham’s caustic attacks on legal fictions,3 their prevalence in law had come to be an embarrassment. An American jurist critically remarked in 1841, “All manner of pleadings and proceedings, both in law and equity, are stuffed with falsehoods and lies.”4 In Ancient Law (1861), Sir Henry Maine acknowledged fictions serve the useful purpose of facilitating change in the law, but he considered them a discredit to modern legal systems.5  Yet, a century and a half later, fictions still continue to exist in law.

Maksymilian Del Mar and William Twining have produced a superb collection of 19 essays on legal fictions. The book begins with a splash, publishing a first-time English translation of Hans Kelsen’s 1919 response to Vaihinger’s influential book on fictions.6 In consistently high quality essays, subsequent chapters take up a broad range of issues. About half of the chapters involve theoretical explorations that focus on what fictions are, how they should be defined, what purposes or functions they serve, why they exist, what their implications are for law and language, how influential theorists have considered them (particularly Fuller, Bentham, and Vaihinger), and various other issues. Another set of chapters are oriented toward specific contexts of legal fictions, including the early common law, ejectment actions, Roman law, exclusionary rules, copyright law, tort law, Rabbinic law, securities law, and criminal law.

A collection this varied could easily have lacked coherence. This risk was heightened because contributors were free to define legal fictions in any way they desired. While nearly all jurists would agree that the above mentioned examples are legal fictions, other identifications are debatable. Kelsen identified the “legal subject” or “legal person” as a fiction because it has no real object but involves the personification of a complex of norms;7 but since there is no falsehood, it might be considered a legal construction rather than a fiction. The classical assertion that common law judges do not make law but merely declare it was tagged a fiction,8 though it is perhaps more aptly described as an idealization or myth. The treatment of corporations as legal persons is mentioned as a fiction by several contributors,9 though one might question whether this is a knowing falsehood rather than a legally designated status. Certain legal presumptions were discussed as fictions or as based on fictions,10 while other contributors sharply distinguished presumptions from fictions.11 One contributor identified the “reasonable person” test in negligence as a fiction,12 and another contributor labeled the assumption within contract law of the equality of the contracting parties a fiction.13 As the notion of legal fiction expands, they appear everywhere in law, and the label begins to lose its analytical purchase.

Despite these potential problems, the collection holds together very well and the overall result is a rich and sophisticated exploration of the topic. The contributors shared a substantial overlap in their basic understanding, so differences in what they construed as legal fictions were useful and thought-provoking. Del Mar’s introductory essay helps hold the collection together by elaborating examples of legal fictions, the types of jobs they do, the different definitions utilized, and various ways fictions are evaluated by contributors.14

A few points of general agreement can be found across the essays (albeit not explicit in all). One common sentiment is that, though legal fictions might have a negative connotation as a form of deception, they have important functional benefits, particularly in facilitating legal change and in producing just or equitable outcomes. Another notion apparent in a number of the essays is that law is an artificial system distinct from the social world, possessing its own conceptual apparatuses and technical language, dictates of formality, rationality, and coherence, and modes of operation—and legal fictions arise at various points of contact to manage potential disjunctions between the legal system and society. Viewed in these terms, legal fictions are not truly falsehoods because they are not genuinely proffered by legal actors as assertions of fact (even when they take that form), and within law they are true in so far as they have legal consequences.15

What also comes through the essays is the implicit sense that legal fictions are likely to remain a part of law. Valid laws sometimes become obsolete, social values change, and general rules are over-and under-inclusive (applying to situations they should not, and failing to apply to situations they should). The demands of legal formality if always strictly adhered to under these circumstances would prove socially dysfunctional. To effectuate legal change or to achieve justice in a case, a judge can openly declare the existing legal rule will be set aside for compelling reasons—and judges sometimes do that. But this goes against the rule of law ideology, and is particularly problematic in connection with statutes.16 Thus, judges resort to legal fictions. A strong case can be made that to work properly a system of formal legality needs legal fictions, even if they are not officially embraced.

While the central focus in the collection is on fictions in law, fictions also play a prominent role in legal theory. Hans Kelsen’s Grundnorm is a fiction.17 Hercules is Ronald Dworkin’s fictional super judge. (P. 37.) Though none of the contributors mentioned it, Joseph Raz’s assertion that law claims moral authority is based on a fictional personification of law18 (whether Raz recognizes this is a fiction is an open question). As is the case with law generally, fictions are used in legal theory to provide or impose coherence, uniformity, or systematicity that is otherwise lacking.

There is much to be learned from thinking about legal fictions, and this collection goes a long way toward plumbing these insights.

  1. Michael Lobban, Legal Fictions before the Age of Reform, in Legal Fictions in Theory and Practice 199,  201-204 (Maksymilian Del Mar and William Twining, eds., 2015). []
  2. Frederick SchauerLegal Fictions Revisited, in Legal Fictions in Theory and Practice, supra note 1, at 122. []
  3. Michael Quinn, Fuller on Legal Fictions: A Benthamic Perspective, in Legal Fictions in Theory and Practice, supra note 1, at 56-60. []
  4. Anonymous, Legal Fictions, 25 Am. Jurist & Law Mag. 69, 73 (1841). []
  5. Henry Maine, Ancient Law (Tucson: University of Arizona Press 1987 [1861]) 29-31. []
  6. Hans Kelsen, On the Theory of Juridic Fictionsin Legal Fictions in Theory and Practice, supra note 1, at 3. []
  7. Id. at 6-7. []
  8. Quinn, supra note 3, at 65. []
  9. See Douglas LindThe Pragmatic Value of Legal Fictions, in Legal Fictions in Theory and Practice, supra note 1, at 93. []
  10. See Randy Gordon, Fictitious Fraud: Economics and the Presumption of Reliancein Legal Fictions in Theory and Practice, supra note 1, at 385. []
  11. See Schauer, supra note 2. []
  12. Geoffrey Samuel, Is Law a Fiction?in Legal Fictions in Theory and Practice, supra note 1, at 47. []
  13. Lind, supra note 9, at 104-105. []
  14. Del Mar, Introductionin Legal Fictions in Theory and Practice, supra note 1, at ix-xxix. []
  15. See Lind, supra note 9. []
  16. Schauer, supra note 2 at 121-122. []
  17. Samuel, supra note 12 at 38. []
  18. See Kenneth Einar Himma, Law’s Claim of Legitimate Authority, in Hart’s Postscript: Essays on the Postscript to the Concept of Law (Jules L. Coleman, ed., 2001). []
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Cite as: Brian Tamanaha, Why are Fictions so Common in Law?, JOTWELL (September 7, 2015) (reviewing Legal Fictions in Theory and Practice, (Maksymilian Del Mar and William Twining, eds., 2015)),