The Ethics of Legal Fictions (3/2017)

THE ETHICS OF LEGAL FICTIONS
Centre for Ethics, March 15, 2017
Simon Stern, simon.stern@utoronto.ca

This talk offers a historical overview on some legal fictions in the common law and the way that the concept of “legal fiction” changed between the seventeenth century and the twentieth century. The discussion draws mostly from my manuscript in progress, Law’s Artifice: Legal Fictions and the Legal Imagination, but it also draws on material in two book chapters, “Legal and Literary Fictions,” in New Directions in Law and Literature, ed. Bernadette Meyler & Elizabeth Anker (Oxford University Press, 2017), 313-26, and “Legal Fictions and Exclusionary Rules,” in Legal Fictions in Theory and Practice, ed. Maksymillian Del Mar & William Twining (Springer, 2015), 157-74.

Here’s the handout accompanying the talk:

Civil death: the doctrine that convicted felons is deprived of certain legal capacities (the ability to bring a civil suit, to leave a will, and to vote, for example), and for those particular purposes, are treated as if they were dead.

Feme covert (coverture): the doctrine that the legal identity of a married woman is suspended as long as she is married; e.g., Blackstone: “By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband.”

Attractive nuisance: the doctrine that if property owners place a dangerous object on their land (e.g., a pool, a machine) and a child comes onto the property and is harmed, the owner will be deemed to have invited the child onto the land, and therefore will be liable for the harm.

Corporate personhood, the reasonable person, the “one drop” rule …

Constructive doctrines: e.g., constructive discharge, constructive eviction.

Fictions of pleading:  “Bordeaux is in London” (a plea which the court accepts as true, because it allows the court take jurisdiction over a dispute that must otherwise be litigated in France); “the defendant was in the custody of the sheriff of __” (accepted as true, so as to give the court jurisdiction over the defendant).


William Fulbecke, A direction or preparatiue to the study of the lawe wherein is shewed, what things ought to be obserued and vsed of them that are addicted to the study of the law, and what on the contrary part ought to be eschued and auoyded (1600)

The understanding of the Student when it enters into the survey of these intricate and hidden points, must be of this ability to compound things, and to resolve them by imagination, to build and destroy, and to turn sail by circumstances and occurrences: for there is no case which accidents may not alter, but that one thing may countervail another, or that a defect may be supplied by enforcement of reason, or that a wrong may be purged and transformed into right, and black as it were changed into white; contrary to nature is the work of intelligence reflecting upon itself, some perhaps carry such spiced and scrupulous consciences, that they cannot abide any fiction or representation of a thing that is not in fact, but surely the supposal admittance, and intendment of the Law is necessary, without which, neither the science of the Law, nor any other which consists in contemplation and abstraction of the essences of things from the confusion and mixture of circumstances can be of any worth or force. … Many things of this kind & quality have I before immediately proposed which will be void of all effect, if you take imagination from the Law

Henry Finch, Law, or a Discourse Thereof (1613/1627)

A fained construction, which we call a fiction in law, is when in a similitudinarie sort, the law construeth a thing otherwise than it is in truth.

[For example] A promise to ones wife in consideration of a thing to be performed by the husband: if the husband upon his coming home, agree and perform the consideration; he may plead this promise to be made to himself.

Henry Sumner Maine, Ancient Law (1861)

[Let us consider] the agencies by which Law is brought into harmony with society. These instrumentalities seem to me to be three in number, Legal Fictions, Equity, and Legislation. …

I employ the word “fiction” in a sense considerably wider than that in which English lawyers are accustomed to use it, and with a meaning much more extensive than that which belonged to the Roman “fictiones.” Fictio, in old Roman law, is properly a term of pleading, and signifies a false averment on the part of the plaintiff which the defendant was not allowed to traverse; such, for example, as an averment that the plaintiff was a Roman citizen, when in truth he was a foreigner. The object of these “fictions” was, of course, to give jurisdiction, and they therefore strongly resembled the allegations in the writs of the English Queen’s Bench, and Exchequer, by which those Courts contrived to usurp the jurisdiction of the Common Pleas:—the allegation that the defendant was in custody of the king’s marshal, or that the plaintiff was the king’s debtor, and could not pay his debt by reason of the defendant’s default. But I now employ the expression “Legal Fiction” 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. The words, therefore, include the instances of fictions which I have cited from the English and Roman law, but they embrace much more, for I should speak both of the English Case-law and of the Roman Responsa Prudentum as resting on fictions. … The fact is … that the law has been wholly changed; the fiction is that it remains what it always was.

Lon Fuller, Legal Fictions (1930/1967)

(1) a statement propounded with a complete or partial consciousness of its falsity, or (2) a false statement recognized as having utility. [àFictions are therefore neither lies nor mistakes.]

Some of the hoariest of our fictions are statements that have been made by the courts and that plainly refer, not to facts, but to legal relations. The fiction that “husband and wife are one … is an outstanding example. But is this a fiction? It is a statement not of fact but of the legal situation of the parties. It is further a statement made by a court possessed of the power to create and enforce rights If a court actually treats husband and wife as if they were one, are they not legally “one”? But it is just at this point that the fictitious element becomes apparent.  The courts did not, in actuality, treat husband and wife as “one.” The statement was misleading as a description of their legal situation.