Vaihinger’s philosophy of the As-If is a work which is almost as famous as it is unread and the strong intuitive appeal of its programme—so very neatly expressed in its title—has not been appealing enough to generate a lasting debate or something of a heritage in the English-speaking world.¹ However, Kelsen’s early engagement with this work is still relevant and should attract our attention. This is so not only because of Kelsen’s comments on the concept of juridic fiction, but also because in this work Kelsen sketches out, and be it en passant, early ideas on freedom, normativity and the relation of law and morality. In this early discussion of his ideas we can see themes evolve which are central to the Pure Theory albeit not yet over-burdened by the discourse of the basic norm.²

Apart from a respectful but largely critical analysis of Vaihinger’s use of juridic fictions, to which I will turn in a moment, Kelsen also makes two important points not trivially related to the question of juridic fictions. Kelsen claims, firstly, that the concept of the freedom of the will with all its metaphysical confusions is an unnecessary consequence of an insufficient separation of the realm of the is and the realm of the ought and that as soon as one accepts this separation, the concept of freedom becomes superfluous; he claims, secondly, that the law can only ever be an object of cognition if it is understood as a sovereign normative order not derived from morality or religion and that, accordingly, law and morality cannot stand in any relation to each other, because they are not realms of actuality.

But let us start with the fictions themselves. According to Kelsen , Vaihinger is right in his general characterization of them. They are very peculiar intellectual constructs: they help us gain a better understanding of the world, but they do that by making claims about the world which are in clear opposition to facts or are plainly self-contradictory. For instance, in mathematics we make regular and expedient use of the concept of the “infinitely small”, despite it being clear that there is nothing in the world which is actually infinitely small and that the concept of something being infinitely small yet not being nothing, is self-contradictory; the same holds true for imaginary numbers (the square root of negatives); ditto for concepts like “matter”, “force”, and so on.³ In a fiction we treat X as if it were a Y in order to better understand the world, even though we very well know that X actually is not Y or cannot be Y.

From this Vaihinger develops the four main characteristics of fictions: (1) they include a contradiction with reality or a self-contradiction, (2) the fiction has to be fundamentally provisional, i.e. it has to disappear later on or be logically eliminated, (3) the awareness of the fictivity has to be expressly stated, and (4) the fiction has to be expedient .⁴

So far so good. However, Vaihinger states that it was only in mathematics and in the law that fictions have so far been systematically discussed,⁵ and goes on to elaborate his understanding of the use of fictions in the law. And it is precisely this to which Kelsen takes exception. He claims that on close inspection nearly all the examples Vaihinger uses to illustrate juridic fictions cannot count as fictions in Vaihinger’s own sense. After all, Vaihinger quite naively talks about the “fictions of the law” and does not distinguish between the various possible authors of fictions, i.e. between who exactly makes the fictitious statement. According to Kelsen, Vaihinger refers to at least three possible authors: the legislature, the judiciary (and other agents applying the law) and legal science. Now, of these three, only the latter can be said to satisfy all four of Vaihinger’s own characteristics of fictions.

(A) Fictions of the legislator, e.g. cases where the legislator decrees “that goods not returned to the sender within the proper time are regarded as if the recipient had definitely authorised and accepted them”⁶ cannot count as proper fictions as by means of them the legislator does not attempt to facilitate knowledge of the actual world and they do not set up an explicit contradiction to the actual world. Legislative acts are acts of will, and as such they do not intend to represent knowledge of anything. What is more, a legislative act cannot set itself in contradiction to actuality (which it does not even intend to represent). All it does is create a normative reality. So when the legislator says that A is to be treated as if it were a B, then by that he is not asking us to treat A as B in order to better know A, even though we know A not to be B. Rather, the legislative act normatively makes A a B. This means that the same normative consequences which are attached to B are by means of this “fiction” also attached to A. The legislator does not ask us to treat A “as if” it was a B, but he asks us to treat A “just as” B. Rather than being “fictions” in Vaihinger’s sense these constructs are only a convenient way of legislating, they are mere regulative shortcuts.

There can be little doubt that Kelsen is correct here. Whether he has made more than a terminological point, and whether he ever intended more, remains, however, doubtful. What nevertheless warrants comment is the fact that since Kelsen has not yet incorporated Merkl’s doctrine of the “double-headedness of the legal act”,⁷ he did not yet seem to appreciate the fact that there can be no difference in principle between legislation and adjudication , since both apply existing law and create new law.

(B) In contrast, the fictions of the application of the law, e.g. fictions used by a judge to treat a case which is explicitly not covered by a statute as if it were covered by a statute, might satisfy the “cognition requirement” in that as a subaltern element the application of law involves a cognitive element in relation to the law which is applied; however, what this supposed “fiction” lacks is expediency, since, according to Kelsen, these “fictions” cannot reach a correct conclusion. They cannot reach a correct conclusion, Kelsen claims, since as concerns the cognition of the law, only the law itself can be the standard of correctness. Now, adjudicative “fictions” do not simply provisionally treat cases as if they were different, but they permanently alter the legal material, thus violating criterion (2) and (4) of Vaihinger’s above stated characteristics of fictions.