Legal Fictions and Legal Change in the Common Law Tradition

© Springer International Publishing Switzerland 2015
Maksymilian Del Mar and William Twining (eds.)Legal Fictions in Theory and PracticeLaw and Philosophy Library11010.1007/978-3-319-09232-4_11

11. Legal Fictions and Legal Change in the Common Law Tradition

Maksymilian Del Mar 

Department of Law, Queen Mary, University of London, Mile End Road, London, E1 4NS, UK



Maksymilian Del Mar


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.

11.1 Introduction

Any thorough discussion of legal fictions must tackle two fundamental difficulties: first, definitional—circumscribing the object of analysis, and rationally reconstructing it vis-à-vis nearby concepts, such as presumptions and deemings; and second, evaluative—understanding and judging the function played by legal fictions in legal practice. This chapter tackles these two issues in two parts: the definitional issue in the first part, and the evaluative issue in the second.

Legal fictions are here defined 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 required fact; or (2) the presence of proof to the contrary. This is a broader definition than is commonly found in the literature , because the common trend is to understand fictions as requiring consciousness of falsity, whereas the first reason noted above only requires absence of proof. This definition is employed in this chapter because it helps us better to understand and evaluate the function of legal fictions in legal practice. It helps because it relates the use of the device to the ever-present practical issues of the availability of evidence . Presumptions are closely related to legal fictions so defined, but they operate differently: they do not so much suspend a required operative fact, as they take a stance on the likelihood of an operative fact being present, thereafter either shifting the burden of proof of the operative fact to a party that needs to prove otherwise (and thus rebut the presumption), or simply not allowing proof on the matter, and thus not allowing rebuttal (as in conclusive presumptions).1 Legal fictions do not take a stance on likelihoods of operative facts being present. Instead, they simply make the operative fact (momentarily) irrelevant or unnecessary to the imposition of the associated normative consequence. As will be seen below, in the first part, this suspension of a required operative fact typically arises in contexts where a certain intention or a certain causal link needs to be proved, but cannot be. Legal fictions, then, are often employed to soften the evidentiary burden of intentionality or causation that a rule or principle otherwise requires. The first part of the chapter illustrates this definition with examples, and also situates it in the literature on legal fictions.

The second part of the chapter then turns to evaluating the role of legal fictions in legal practice. In doing so, it presupposes the first part’s definition, but also adds to it. As is often the case, evaluating something pushes us to understand it better. In looking to evaluate the use of fictions, it is observed—as is readily apparent to any reader of the literature—that legal fictions have a lacklustre reputation. They are sometimes begrudgingly recognised as helpful modes of legal change, but then quickly denigrated as signs of an immature legal system—one that has not yet achieved the explicitness and coherence of principle that characterises a fully-grown legal order. This chapter pleads for us to be more patient with legal fictions, and to dwell a little on the potential justifications for suspending a required operative fact as opposed to introducing a new rule that associates a new set of operative facts with a normative consequence. The argument of the chapter is that if we shift our focus away from the individual, isolated decision (in which the legal fiction is employed) to an understanding of legal reasoning as a relational affair across time, i.e. as a matter of present courts paying heed to past decisions but also relating to future decisions, then we will see that the use of legal fictions is one of the ways in which a tentative (rather than assertive) cognition2 can be exercised. In other words, suspending a required operative fact allows future courts to test the potential boundaries of a potential new rule. It allows them to consider whether the fiction should be articulated as a new rule, or whether they and future courts should continue testing, case by case, the utility of the fiction, or indeed whether the case in which the fiction was employed should be quarantined as an exception (or even a mistake). In this way, when a court employs a fiction—especially for the first time—it invites subsequent courts to consider whether, on the facts before them, the required operative fact ought again to be suspended, and if so, whether the time is now ripe for a rule to be introduced.

Combined together, it is hoped that the two parts of this chapter—the definitional and the evaluative—both place legal fictions in a better light. More broadly, it is hoped that understanding legal fictions this way can reveal to legal theorists the importance of seeing how the modes and devices of legal reasoning operate diachronically, i.e. precisely as relational resources, and thus as ways in which participants in the system collaborate across time.3 Legal fictions have been hard done by because they have been evaluated from the perspective of a single use—but, as with other modes and devices of legal reasoning, they come into their own only when seen from the perspective of multiple uses. It is too harsh to say of legal fictions that they are a ‘syphilis’ with ‘pestilential breath,’4 as Jeremy Bentham remarked in his typically acerbic no-nonsense style; rather, they are more like blocks made of plasticine in a world made of blocks with varying degrees of hardness, i.e. building blocks whose shape is particularly pliable, eventually either discarded or used as moulds to produce more stable fixtures on the landscape. Legal fictions, in short, when used wisely, are inherently dynamic resources that allow courts, over time, to balance flexibility and responsiveness with stability and predictability.

11.1.1 Defining Fictions

Arguably, legal fictions are present in most, if not all, legal systems in which a professional body of persons (judges) decide disputes on the basis of an authoritative corpus of past materials, either laid-down rules or decisions. This is because the legal fiction is a device that is created out of a need—indeed, often a duty—to render one’s resolution of the dispute in a manner that respects coherence (and thus some level of predictability and stability), while at the same time attempting to be responsive and efficient in one’s dispensation of justice. Legal fictions, if you like, are created in the coal-face of legal change, which serves two masters: the conservative pressure of the system and the call of the injured pleading for a remedy.

It should immediately be noted that legal fictions are understood, in this chapter, as devices used in the process of adjudication. Those theorists who have sought to classify different kinds of legal fictions—e.g. Fuller (1930–1931) and Olivier (1975)—have also made reference to, for instance, legislative fictions,5 jurisprudential fictions,6 fictions of legal technique,7 and the fictional use of legal instruments by citizens.8 Both Fuller and Olivier also refer to fictions used in adjudication, and in that respect—as we shall see in more detail in a moment—their work is directly relevant here.9

When it comes to offering a general definition, Fuller and Olivier differ considerably. Fuller’s well-known general definition is that a fiction is ‘(1) a statement propounded with a complete or partial consciousness of its falsity; or (2) a false statement recognised as having utility’ (Fuller 1930–1931, p. 369). To call a fiction a ‘statement’10 seems artificial , especially in the adjudicatory context where it is surely more usefully understood as a device of reasoning.11 Olivier’s general definition is arguably more disciplined , and also more in keeping with the approach taken in this chapter:

Under legal fiction, I understand an assumption of fact deliberately, lawfully and irrebuttably made contrary to the facts proven or probable in a particular case, with the object of bringing a particular legal rule into operation or explaining a legal rule, the assumption being permitted by law or employed in legal science. (Olivier 1975, p. 81)12

Nevertheless, there are some differences between Olivier’s definition and the one adopted here. It seems more accurate to say that a legal fiction is a ‘suspension’ of an operative fact rather than an ‘assumption’ of fact made—if one knows there is evidence to the contrary of what an operative fact requires, one does not ‘assume’ it to be otherwise; instead, one knows it is otherwise, but one proceeds anyway to allow the normative consequences to follow. Further, ‘suspension’ arguably better captures the temporary nature of the fiction. Finally, reference to facts ‘probable’ in a particular case is arguably unnecessary: for a fiction, all one needs is that one either has evidence to the contrary of the operative fact, or that one does not have evidence of the operative fact—one does not need to pass judgement on the standard (though it is true that sometimes when fictions are employed for lack of evidence of an operative fact, this is done because the judge feels that were evidence to be available it would uncover the otherwise hidden fact).

Olivier’s general definition—especially the reference to assumptions13 made contrary to probable facts—brings him dangerously close to not recognising a distinction between fictions on the one hand, and presumptions and deemings on the other hand. This is a little surprising, for Olivier is otherwise careful to distinguish his notion of a fiction from, for instance, ‘analogous application of norms, e.g. if fact A is present apply the rules applicable to fact B’ on the basis that there is ‘no false factual assumption’; or ‘metaphors and symbolic expressions which endeavour to describe legal institutions or concepts but which do not require a false actual assumption, e.g. prescription “runs”’; or ‘abstract notions concerning the law or legal institutions, e.g. the concept of subjective rights’ (Olivier 1975, pp. 81–82).

Considering the examples Olivier provides, though, we can read him generously and ignore the reference to ‘probable facts’ in the general definition. For instance, looking at Roman-Dutch law, Olivier says that it is a fiction ‘that an illegitimate child has no father and does not succeed on intestacy to his father or father’s relations’ (Olivier 1975, p. 133)—clearly there is no question of it being probable that a child has no father; or that ‘an illegitimate child is legitimated by the subsequent marriage of his parents, based on the fiction that the parents had married before the birth of the child’ (Olivier 1975, p. 133)—again, the need for the fiction would not arise unless it was known that the parents did not marry before the birth (or it could not be known whether they did);14 or that ‘that subsequent ratification of the contract of a minor by the guardian validates the contract, based on the fiction of retroactivity’ (Olivier 1975, p. 133)—once more, there is no question of the probability of validation (for a minor could not legally validate a contract, let alone physically if they are a baby), this also being a good example of where evidence of intention is required by the operative facts and where, in order to achieve what is seen as the just result in the particular case, that requirement is suspended.15

Similarly, when Olivier provides an example from the common law—in the case of Des Salles D’Epinoix v Royal Borough of Kensington and Chelsea (1970)—it is an example that works in a context where the facts are known to be otherwise. As Olivier summarises it:

In Des Salles D’Epinoix v Royal Borough of Kensington and Chelsea 16 … the appellant, a married man, appeared as the rate-paying occupier of the matrimonial home on the rating authority’s valuation list. In 1966 he left his home after marital differences. His wife and children continued to live there. He was called upon to pay the assessed rates but refused to do so. The court, in the person of Lord Parker CJ, suggested that even if in a particular case physical occupation had ceased, a person might still be in ‘beneficial occupation’ of the property. The notion of ‘beneficial occupation’ is a fiction, legal shorthand for saying that, although there is no real occupation by him, the husband is liable in law for payment of assessed rates because this liability forms part of his legal obligation to maintain his wife and children. (Olivier 1975, pp. 147–148)

This case is a good example of the approach taken to fictions in this chapter:17 the normative consequences attaching to the concept of ‘occupation’ (in this case, liability for the rates) require the operative fact of dwelling physically in the particular abode. This operative fact, however, is suspended—and signalled by the inclusion of the qualification ‘beneficial’—in order to reach what is thought to be a just result in the case. Olivier, it should be added, criticises this case, asserting that it should have been decided on the basis of an explicit principle:

The judge endeavoured to formulate a legal relationship in terms of the occupation. Instead of applying the correct legal principle to the facts, he sought to alter those facts. The correct decision would have been: because the husband is in law compelled, by virtue of his duty of support, to provide accommodation for his wife and children, he is liable for taxes on the abode he so provides. However, the judge over-emphasised the physical facts and could only achieve the intended result by employing a fiction: the husband is deemed to be in occupation of the dwelling and therefore is liable for payment of the tax. (Olivier 1975, p. 149)

From the perspective of this chapter, this is too quick—Olivier may be underestimating the importance—at the time—that was attached to limiting the liability of a divorced husband, or, put differently, the importance—in part because of its unpredictable effects—of not creating a general liability to pay taxes on an abode lived in by the estranged wife and children. But to make this point is to leap ahead to issues we will be considering in more detail in the second part.

In the case of Fuller, although his classification of fictions is somewhat mixed in with his typology of motives for deploying them,18 there are aspects of his account that are of great assistance to the approach taken here. In particular, Fuller’s discussion of the relationship between fictions, presumptions and estoppel as devices used to enable, but also ‘obscure’ (Fuller 19301931, p. 531), the growth of the law, is particularly noteworthy. Although lengthy, the following passage is worth citing in full:

Nearly any given reform in the law may be described as a redefinition of the operative facts upon which some legal consequence is predicated. For example, we may suppose that under existing law Legal Consequence X arises from Facts A and B. A and B are the facts which give rise to Legal Consequence X. It may now be found desirable to attribute the same consequence (X) to Facts A and C. For example, where previously liability for misrepresentation existed only in the case of an untruthful statement (Fact A) made with knowledge of its untruth (Fact B), it is now thought desirable to impose liability where there is an untruthful statement (Fact A) made negligently (Fact C). How can this reform be accomplished and yet leave the form of existing rules untouched? How can we preserve the appearance that A and B remain the operative facts? There are at least three distinct ways of doing this: (1) When Facts A and C are present, permit an allegation that B is present even thought it is known that B is actually absent from the case. This is the method of the ordinary fiction. (2) Say that Facts A and C raise a presumption that B is present. (3) State the existence of Facts A and C ‘estops’ the party to deny that Fact B is present. (Fuller 19301931, p. 532)

There are a number of observations to make about this important passage. The first is that it need not be the case that Fact B (to use Fuller’s terminology) is replaced by Fact C. Instead, Fact B might simply be suspended. Secondly, it is interesting that the example offered by Fuller, where Fact B is replaced by Fact C, is one that relates to a problem with proving intentionality—negligence , from this perspective, becomes an engine of legal change precisely because it offers a practical way of dealing with the unavailability (or, better, rare availability) of proving the requisite intention. Thirdly, it is not quite accurate to say that the existing rules are ‘untouched’, but nor is it quite correct to assert that the rule has been changed and done so in an ‘obscure’ way. Looked at by tracing the role of the device across time, and not its use in a single, isolated decision, a fiction (1) puts normative pressure on a rule by noting circumstances in which it may be appropriate (depending on future cases arising before future courts) to suspend one of the rule’s operative facts; and (2) gives some normative impetus (but one which subsequent courts may not take up) to the eventual introduction of a new rule. The fourth point is more positive: Fuller distinguishes, but also notes the relationship between three kinds of devices: fictions, presumptions and estoppel. In that respect, he adds that:

Which device will be employed depends upon which is most expedient. Where Facts A and C can be said to have any tendency at all to prove Fact B, probably a presumption will be used, although the presumption may involve the disadvantage that, if one is to preserve the notion that it is merely a ‘presumption,’ rebuttal, to some extent at least, will have to be permitted. If there is any conduct of the party which can form the basis for denying him the privilege of disproving B, estoppel may be used. If all else fails, there is left only the bald pretense of the fiction. (Fuller 19301931, pp. 532–533)

Fuller is not very generous to fictions here, but his analysis is nevertheless useful: presumptions are more likely to be used (and more likely to be efficient) in situations where the operative fact is probable (given, perhaps, the other operative facts), in which case it also makes sense to leave room for rebuttal should the other side be able to show that the unlikely is the case; with estoppel, on the other hand, an operative fact may again probable, but this time the rebuttal is itself further constrained by an operative fact (the absence of a certain kind of conduct, e.g. duress); and then there are fictions when, says Fuller, ‘all else fails.’ Fuller’s judgement of fictions, however, is clouded by his isolation of a single decision in which a fiction might occur, pitting fictions against presumptions and estoppel on the same time-wave, so to speak. If, instead, we look across time, we will see that presumptions and estoppels tend to be much more embedded than fictions, i.e. they are established rules , though a little hidden in the evidentiary structure of the law. Fictions, then, are not so much obscurantist as they are tentative. In other words, by isolating a single use of a fiction, Fuller precisely misses its value (at least in this context of comparing them with presumptions and estoppels).

Although Fuller is careful to distinguish fictions from presumptions, he is not as explicit, nor as careful, in distinguishing fictions from deemings. He says, for instance, when giving examples of what he calls ‘exploratory fictions’—i.e. fictions in which judges create constructions in which they ‘feel their way’ toward some principle—that the ‘doctrine of vicarious liability for tort began with such notions as that the master should be “deemed negligent” for hiring a careless servant’ (Fuller 19301931, p. 528). It is true that the line between fictions and deemings is not clear. Nevertheless, Fuller’s example does appear to have more of the flavour of a deeming than a fiction; after all, it creates an explicit principle—vicarious liability—the operative fact of which is that if a servant is in the master’s employ, then the master is liable for the servant’s negligence . Were it to be thought of as a fiction, one would need to identify a rule the operative facts of which were being suspended, and it is not clear that there is such a rule. There is a general concept—liability—but the extension of it via the notion of vicariousness does not resemble fictionalisation—it resembles, instead, a policy stipulation or postulation.

Deemings, then, are more stipulative—more arbitrary in a sense—and do not have a clear relationship to difficulties associated with proof.19 The line, however, as noted above, is not always clear. For example, consider the following well-known device: ‘a person missing for seven years or more is dead.’20 Rescher refers to this as a presumption, and in a sense that is true for it can be rebutted (whereas a deeming typically cannot). However, there is also something stipulative and arbitrary about it—why seven, and not six or eight?—and it also need not be thought of as taking a stance on the probability or likelihood of a person being alive or dead. It is, then, perhaps a quasi-presumption (or a quasi-deeming?). Other difficult examples are (also from Rescher 2006, p. 5): ‘that a wife is incompetent to testify against her husband’ or ‘that a minor is too immature to vote or to enter into a valid contract.’ These certainly feel more stipulative, for they cannot be rebutted, but nevertheless they may be thought to be taking a stance as to the reliability of any potential evidence to the contrary, i.e. that no matter what proof of a wife’s competence is offered, it may still be the case that the wife would be biased, and no matter how mature a child is shown to be, they are unlikely to have understood the legal consequences of their promise (or acceptance of one).21

Looking beyond Fuller and Olivier, definitions of legal fictions that are close to the one adopted in this chapter can also be found, for instance, in Peter Birks’s important piece (but one often overlooked in the literature on legal fictions) entitled ‘Fictions Ancient and Modern’ (Birks (1986). Birks works with a form of action he considers exemplary for understanding legal fictions: action for money paid. At first, this action was restricted to circumstances (the operative facts) in which (1) there was ‘a request (to pay a third party)’; and (2) there was ‘a promise to repay’ (Birks 1986, p. 87). In the course of time, these operative facts were dropped, such that even when there was proof to the contrary (i.e. proof that there was no request and no promise), the same form of action could be used to regain the money. As Birks says:

The courts fictionalised the request in the action for money paid and thus made the action available to plaintiffs who had had no communication with the defendants on whose behalf they claimed to have paid out money. That is, the fictionalisation of the request made the action reach into the area of non-promissory indebtedness. (Birks 1986, p. 90)

An example is Exall v Partridge, a case from 1799:22

The true facts were that the plaintiff had left his carriage on the defendant’s property to be repaired. The defendant’s landlord had then taken the carriage into his possession in exercise of his right to distrain for arrears of rent. In order to redeem his carriage, the plaintiff had therefore had to pay to the landlord the amount of the rent owed by the defendant … [The plaintiff] had undoubtedly paid out money to the use of the defendant, but not at the latter’s ‘special instance and request’ and not in circumstances supported by any inference of a promise to repay … Nevertheless the court held that the plaintiff’s action for money paid was entitled to succeed … the plaintiff could substantiate the allegations of request and promise by proving not only that by his payment out he had benefited the defendant but also that he had not done so voluntarily. And on these facts he could show that he had not conferred the benefit voluntarily by pointing to the lawful compulsion brought to bear on him by the landlord. (Birks 1986, p. 90)

The case is an interesting one if only, in the present context, because it shows how the court’s suspension of certain operative facts can be made dependent on the proof of other facts, not explicitly noted in the form of action. What makes Birks’s discussion valuable is his generalised analysis of how legal fictions work:

… the plaintiff advances a routine claim which recites A, B, C and D; he is allowed to win on proving only B and C, or perhaps B, C and Z. The substance of the matter is a judicial determination that B and C, or B, C and Z, ought in law to give rise to the same consequences already attributed to A, B, C and D. However, because this determination is reached behind the recitation of A, B, C and D, and because plaintiffs in subsequent cases continue to make the old recitation even when intending to advance the new facts, the form of the development is fictionalisation of A and D. (Birks 1986, p. 86)

Birks’s analysis here is somewhat more dynamic than Fuller’s or Olivier’s. He speaks of the ‘fictionalisation’ of A and D, which is in part an acknowledgement, or can be read to be so, of an ongoing process, rather than an isolated act. Although it could be clearer, one assumes that by the ‘fictionalisation of A and D’ Birks does not mean that one can no longer bring an action on the basis of the facts A, B, C and D, but just that there is another way to reach the same normative consequences by way of proving facts B and C, or B, C and Z. In any event, Birks’s approach is close to the one adopted here, for he implicitly recognises the ambiguous, flexible or even unstable character of a situation in which the same normative consequences may be applied via a series of alternative operative facts, at least until—in some unforeseen future—a court decides to articulate a more general principle (e.g. the principle of unjust enrichment, and associated rules) that will encompass these various alternative routes.

This sense of fictions being an instrument via which, incrementally, the law gropes its way towards a principle is important. It echoes the point noted above by Fuller with respect to ‘exploratory fictions’. It is a term often acknowledged to be in the spirit of the common law . For instance, Hamilton argues that it is through the use of ‘exploratory fictions’ that ‘common law judges often feel their way incrementally toward some new legal principle or theory’, providing the example of the ‘genealogy of cases giving rise to the “attractive nuisance” doctrine, which involves a fiction that the children were allured or enticed upon the land, and which eventually results in child trespasser law, such that a child being a trespasser becomes “one fact to be taken into account, with others, in determining the defendant’s duty, and the care required from him”’ (1988–1989, pp. 1465–1466).23 As Hamilton summarises it: ‘the initial fiction which allowed children to recover for injuries sustained while trespassing “pointed the way” toward development of a full-blown theory of premises liability that allowed recovery’ (Hamilton 1988–1989, p. 1466). Once again, we see the benefits of taking a long-lens view of the use of the device, which, interestingly, may be enabled by focusing on common law epistemology. More will be said about these benefits in the next part of the chapter.

Before proceeding to that second part, a few further points concerning the bounds of the definition adopted here will need to be made.

Firstly, there has not yet been occasion to observe that it is important to distinguish fictions from ‘virtual entities’ in the law, such as the concept of ‘legal personality’—thinking of them as virtual rather than fictional helps see the distinction.24 Secondly, but closely related to the first point, it is not clear how helpful it is to think of fictions as part of, or as further illustrating, the metaphorical character of legal language , where the roots of certain legal concepts can be traced back to their distant more concrete beginnings (e.g. concepts like possession, conversion, delivery, estate, etc).25 Although it is an interesting exercise to trace the genealogy of terms used in the law, it is not clear how including fictions under the canopy of metaphors in legal language assists us to understand them better.26 Thirdly, fictions have often been associated—especially in the common law tradition—with jurisdictional wars, as devices used precisely in order to acquire jurisdiction at the cost of a competing court. On the one hand, these fictions could be seen more generously as attempts to provide remedies to those who sought them, but it is difficult to ignore the political and economic context, e.g. in the fictional enlargement of the action of ejectment by the King’s Bench (in competition with the Court of Common Pleas) . By a series of fictions—e.g. ‘no actual lease is made, no actual entry by the plaintiff, no actual ouster by the defendant’—the action of ejectment ends up being a means for trying title (see Holdsworth 1937, Vol. 7, p. 12; see also Vol. 1, p. 200, and pp. 218–219).27 The need for recourse to fictions was the result, of course, of the reliance on rigid (or only apparently rigid!) forms of action.28 Certainly, this kind of jurisdiction-extension has the effect of changing the law, but such instruments are not fictions in the definition adopted in this chapter—they are, for instance, not adaptations to difficulties associated with proof.29 This is not to say that certain ways in which the law was developed by mediaeval and early modern common law courts will not be of interest to a student of legal fictions on the definition adopted here—it is just to say that some uses of them have a decidedly impatient tenor about them: they are not an exercise of tentative cognition in relation to future courts; they are examples of cognition exercised most assertively for the purpose of competing with other courts of one’s own age.

Fourthly, and following on from the last point, the approach to fictions adopted here is one closely related to the ways in which a court manages or adapts to difficulties of proof in daily legal practice.30 We must remember that it has not always been the case—in all legal systems—that those in charge of the law were also evaluating submissions on the facts.31 Arguably, the character of law and legal reasoning changes greatly when the courts become not only forums of the law, but also forums of fact. Others have associated the use of fictions with issues to do with proof, but have not always made clear that fictions are a means of adapting to difficulties that claimants have with proving certain (often the same kind of) elements of particular actions—especially, as noted above, proving kinds of intentionality (e.g. malice, intention to be bound, intention to hold for beneficiary, etc) or causation . Thus, Baker says that:

The essence of the classic English fiction is that proof of a certain fact asserted in a lawsuit was completely dispensed with by the simple expedient of denying any means of disputing it. The false allegation in such cases was of some fact which had once been required to be proved, in an earlier stage of history, but which was no longer regarded as material. Here no false testimony was needed, nor any ceremonial appearance of proof. In the mildest forms, the device was used to enable writ formulae to encompass cases which fell within the spirit behind the remedy. (Baker 2001, p. 41)

This is a valuable observation, but we have to be careful: we need to see that it is only after a period of time that it becomes (or might become) clear that a certain operative fact can be dispensed with (the initial cases suspend, rather than dispense with, certain operative facts). Baker would probably agree, for he is mindful of the changing character of a legal fiction: it might at first ‘slip into practice without challenge, and if repeated often enough could become so rooted that a future challenge would be unlikely to succeed’; then, ‘when they became familiar in practice, they might be extended into more contentious situations, provided that they were seen to have a just objective’ (Baker 2001, pp. 54–55). Baker here recognises that the law changes by creeping in degrees, pursuing remedies for claimants , and where fictions are one of the devices via which the waters are tested, so to speak. If enough normative momentum is accumulated, and thus enough cases come before courts to warrant it, there might come a time when a court will articulate the principle or rule said to cover the factual pattern of that string of cases. Further, we have to be careful not to return to the mere opportunism of jurisdiction-extension, i.e. the idea is that there is a genuine adaptation to difficulties of proof encountered by otherwise worthy claimants, and not the granting of actions for the sake of attaining jurisdictional (and of course revenue) benefits.

The way legal fictions are framed in this chapter, then, is as part of what can be understood to be the study of common law epistemology.32 This is an epistemology whose style—if one can speak of it in those terms—is resolutely pragmatic.33 As Postema put it:

Common law jurisprudence resolutely resists the theoretical pressure to identify law with canonically formulated, discrete rules of law. Law, on this view, is not a set of rules or laws, but a practised framework of practical reasoning … Its rules and norms can be formulated, perhaps, but no such formulation is conclusively authoritative; each is in principle vulnerable to challenge and revision in the course of reasoned argument and dispute in the public forensic context. (Postema 2003, p. 14)

This is a style that keeps close to the particulars (to paraphrase Bacon: see Postema 2003, p. 16), but also keeps ‘an eye on how decisions in particular cases would function in future as examples and rules’ (Postema 2003, p. 4). It is a style that prides itself on ‘the flexibility and opportunity for judicial testing and re-evaluation’ (see Postema 2003, p. 13), recognising that ‘past cases do not preclude deliberation and reasoning in subsequent cases, but rather they invite and focus that reasoning’ (Postema 2003, p. 17). As Last Stone put it, ‘common law reasoning is … a reflective process, a form of collective legal reasoning, in which rules and concepts emerge from and are tested against real and hypothetical narrative situations’ (2007, p. 127), and where there is a discipline and art of ceaseless ‘re-reading’ , ‘re-writing’, ‘re-describing’ (ibid, p. 132), ceaseless transformation and experimentation, with some formulations (of rules or principles, connected to certain constructed factual patterns) taking precedence for a time over others, until they are potentially replaced with the accumulated effect of what is creatively constructed as another string of cases. Both Postema and Last Stone come close to seeing common law legal reasoning as relational in character, and one in which legal fictions play an important role. To further analyse that role, let us turn to part two of this chapter.

11.1.2 Evaluating Fictions

The above part has already found it necessary to mention the need for taking a more diachronic, dynamic view of the use of legal fictions. This part seeks to systematise those brief observations, and to do so (1) by reference to the discussion of legal fictions as enablers of legal change in the literature; and (2) by recourse to a contemporary example in the context of personal injuries litigation.

It should immediately be said that it is not always the case that legal fictions are portrayed negatively.34 Nevertheless, the bulk of the literature is negative in tone.35 Certainly, legal fictions are recognised as helpful, if not occasionally necessary, for change to take place, but this is typically qualified in various ways, e.g. that legal fictions are in use only initially, in the infancy of a legal system, and that mature systems do not have recourse to such allegedly dishonest means of reforming the law.

An influential proponent of this attitude was Sir Henry Maine. In his Ancient Law, Maine (1931 [1861]) recognises legal fictions as one of the three ways in which law can be changed—the other two being equity and legislation.36 Maine’s evaluation of that function, however, is from the beginning qualified and ends up in harsh criticism. He says, initially, that ‘at a particular stage of social progress’—already a qualification—legal fictions ‘are invaluable expedients for overcoming the rigidity of law’ (Maine 1931 [1861], p. 22). His example is the ‘fiction of adoption, which permits the family tie to be artificially created’, and Maine argues that without this fiction ‘it is difficult to understand how society would ever have escaped from its swaddling clothes, and taken its first steps towards civilisation’ (Maine 1931 [1861], p. 22). Maine criticises Bentham for being un-historical in his evaluation of fictions, thereby neglecting their ‘peculiar office in the historical development of law’ (Maine 1931 [1861], p. 22). A few lines later, however, Maine insists that legal fictions have had their day. Indeed, he asserts that legal fictions ‘are the greatest obstacles to symmetrical classification. The rule of law remains sticking in the system, but it is a mere shell. It has been long ago undermined, and a new rule hides itself under its cover’ and he concludes that ‘If the English law is ever to assume an orderly distribution, it will be necessary to prune away the legal fictions’ (Maine 1931 [1861], p. 23). It is somewhat ironic that Maine chastises Bentham for being un-historical, and yet himself fails, in his evaluation of fictions, to see how they operate over time, i.e. how they enable courts—including contemporary courts in so-called mature systems—to experiment with which operative facts to attach to what normative consequences, and when to sediment in an explicit way some such association that has proven useful. The law—it might said a little colourfully—is never fully ordered, or better, it is only fully ordered when it is dead. For law to be alive—to be used—means that there are parts of it that are more uncertain and stretchable than others, but all are somewhat tentative, for their meaning (and in some instances, their very relevance) in the next case depends precisely on the facts of that case (and of course how they are constructed).37

There is no doubt that Maine influenced many a generation of jurisprudes and legal historians. In the Spirit of the Common Law, for instance, Pound recognises fictions as ‘modes of growth’ (1999 [1963], p. 169), but says that they are ‘primitive … closely akin to the “let’s play” so and so of our childhood’ (ibid.). Later he is even more explicitly critical:

Law grows subconsciously at first. Afterwards it grows more or less consciously but as it were surreptitiously under the cloak of fictions. Next it grows consciously but shamefacedly through general fictions. Finally it may grow consciously, deliberatively and avowedly through juristic science and legislation tested by judicial empiricism. (Pound 1999 [1963], p. 173)

In his five-volume text book, Jurisprudence (1959), Pound devoted more space to understanding and evaluating legal fictions. Here, he was also more thorough in his review of different modes of legal growth. Thus, he makes an initial division between the traditional element of growth and the imperative (or enacted) element. The traditional element contains eight modes of growth: ‘(1) fictions; (2) interpretation; (3) equity; (4) natural law; (5) juristic science; (6) judicial empiricism; (7) comparative law; and (8) sociological study’ (Pound 1959

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