In his first essay, Fuller distinguishes the legal fiction, as a type of proposition, from other types of non-truthful propositions. More generally, he defines the legal fiction as a particular type of language usage. His second essay moves from definition to an exploration of the reasons fictions exist; he proceeds largely by examining the motivations for the use of fictions, and this examination becomes a taxonomy of types of legal fiction. Subsequent theorists have been drawn more to the first than to the second of Fuller’s definitions (conceiving the fiction as a type of proposition), and they have focused more on his taxonomy than on his effort to explain the phenomenon. (As discussed further in the next Part, theorists have largely remained silent about Fuller’s third essay.)

Fuller’s differentiation of legal fictions from other types of statement, including “truthful statement[s], … lie[s], … [and] erroneous conclusion[s],” is perhaps the best-known aspect of all of his work on the topic (Fuller 1930a, p. 366). Positively, Fuller defines a legal fiction as “either, (1) a statement propounded with a complete or partial consciousness of its falsity , or (2) a false statement recognized as having utility” (p. 369). This definition of legal fictions as, centrally, counterfactual propositions have been the nearly universal starting point for later work on legal fictions, even when that work proposes refinements on Fuller’s definition.¹

Most of those who accept Fuller’s identification of legal fictions as “statements” also accept his underlying assumption about the necessarily linguistic nature of legal fictions (usually, however, without discussing this premise in any detail):²

Anyone who has thought about the legal fiction must be aware that it presents an illumination of the all-pervading power of the word … [W]e are here in contact with the mysterious influence exercised by names and symbols. In that sense the fiction is a linguistic phenomenon … [T]he inaccuracy of a statement must be judged with reference to the standards of language usage. Simple as this truth is, nothing has so obscured the subject of legal fictions as the persistent failure to recognize it. (p. 371)

Fuller’s first essay is full of other references to legal fictions’ status as “linguistic phenomen[a]” (see, e.g., pp. 373–375, 377–379, 384–386, 389). In this he follows (without citing or discussing) Bentham , who similarly regarded the legal fiction as a special form of the linguistic fiction, itself a special form of the linguistic abstraction (Ogden 1932).³ But unlike Bentham, Fuller emphasizes the constructive function of legal fictions ; according to Fuller, they exist at least partly because of “the impulse to keep the form of the law persuasive” (Fuller 1930a, p. 387).⁴ Thus, according to Fuller, fictions as counterfactual propositions are rhetorical devices for persuasion or self-persuasion.

Fuller’s second essay more systematically explores the motivations for using legal fictions (Fuller 1930b, pp. 517–524, 537–538 and n. 147, 539; see also Fuller 1930c, pp. 887, 903). As Fuller enumerates these motivations, his explanation becomes a typology: he identifies “exploratory” (Fuller 1930b, pp. 527–528), “emotive” (p. 517), “expository” (p. 518), “descriptive” (p. 537), “historical” (p. 538 n. 147), and “apologetic or merciful” (p. 539) fictions, among others. The classifying focus of this essay has also become a model for the work of later theorists.⁵ Virtually every student of the legal fiction since Fuller has emphasized either Fuller’s definitional formulations, his enumeration of types of fiction, or both.

The variations among later theoretical discussions of legal fictions owe more to differences in their authors’ disciplinary affiliation and shifts in academic fashion than to any fundamental reconsideration of Fuller’s study. Work in the 1980s and 1990s tended toward the interdisciplinary, while more recent American legal scholarship has become increasingly doctrinally focused and critical of the legal use of fictions.⁶ A good example of scholarship during the earlier period is Kenneth Campbell’s philosophically informed 1983 examination of Fuller’s essays (Campbell 1983) . Campbell acknowledges that Fuller saw legal fictions as intimately related to the legal recognition of “facts”—also a matter of legal language usage (Campbell 1983, p. 359)⁷—but explicitly disavows any desire to examine “lawyers’ linguistic practices” (p. 341; see also Chap. 11). Although he does characterize the legal fiction as a type of language usage, Campbell is concerned only with the philosophical implications of this insight.⁸ Campbell describes fictions as “means of changing the application of the law by relying on a tension between two classifications of fact” (Campbell 1983, p. 339) —one of the functions highlighted by Fuller—but like Fuller, he does not examine in detail how such “classifications of fact” come to exist or to differ.

Many later writers have focused on demonstrating the continued operation of legal fictions by identifying examples not considered by Fuller. Up to the mid-2000s, commentators tended to stress the analogies between legal fiction and “fiction” in a more everyday sense, often taking a humanistic approach. In a 1986 essay, for example, Aviam Soifer disavowed any desire to present a definitive taxonomy (Soifer 1986, p. 873), but followed a catalog approach anyway, presenting “a few leading fictions, both literary and legal, to suggest and assess a continuum in law and literature” (p. 873).⁹ In a 1990 article, Louise Harmon likewise declared her desire to reestablish the importance of the legal fiction as a topic on the “jurisprudential agenda” (Harmon 1990, p. 1) through analysis of “the history of a particular legal fiction, the doctrine of substituted judgment” (pp. 16, 22). The author of a 2002 Harvard Law Review Note similarly argued that the “debate over the legal fiction should be reawakened”; this author aimed “to prevent the more modern conceptions of the legal fiction from being unfairly stigmatized and dismissed as were their earlier counterparts” (Note 2002, p. 2228).

Over the past decade, work on legal fictions has become more doctrinal and critical, but it continues to identify Fuller as a starting point and to stress definition and classification. In a 2007 discussion of “new legal fictions,” for instance, Peter Smith emphasizes the same counterfactuality that Fuller identified: “A judge deploys a new legal fiction when he relies in crafting a legal rule on a factual premise that is false or inaccurate” (Smith 2007, p. 1437). But Smith argues that Fuller’s list was incomplete; a taxonomy of “new legal fictions” (pp. 1439–1440), Smith contends, is necessary to prevent abuse of these practices of accepted departure from factually accurate statement (pp. 1441).¹⁰ In a response to Smith, Nancy Knauer has defended the utility of at least some legal fictions. Emphasizing definition rather than taxonomy, she concludes that most of the new legal fictions Smith identifies do not merit the label under Fuller’s counterfactual definition: “Empirical legal errors, discredited regimes, and complex statutory schemes [Smith’s ‘new legal fictions’] are not classic legal fictions” (Knauer 2010, p. 49) .¹¹

Resolution of the debate over the status of the devices described by Smith is impossible without analysis of the assumptions underlying Fuller’s definition of legal fictions as counterfactual propositions. These assumptions include the notion that there is a sense in which propositions can be true about the world, or “factual,” as well as counterfactual; they thus also include assumptions about the nature of legal communication, and related assumptions about the extent to which propositions generated within a legal system can be factual in the same sense as non-legal propositions . No post-Fuller theorist of legal fictions has directly considered these issues, although some of the contributions to this volume do (see especially Chaps. 6 and 8). Neglect of these questions is consistent with a broader tendency in legal scholarship to avoid inquiring too directly into what makes a legal “fact” and the relationship of such “facts” to other aspects of legal discourse (e.g., Twining 2006, p. 15; Allen and Pardo 2002, p. 1770). The same tendency probably explains commentators’ relative inattention to the subject of Fuller’s third essay: the roles of fictions in science and law.

Fuller’s third essay focuses on Hans Vaihinger’s general philosophy of fictions and on the functions of fictions in science (Vaihinger’s main focus) and law (Fuller’s).¹² Fuller’s decision to devote a third of his overall discussion to these issues suggests that he considered it necessary to look beyond legal concepts and vocabularies, including to philosophical, scientific, and everyday discourse, to understand the dynamics, function, and potential risks of specifically legal fictions. Yet only one post-Fuller theorist has acknowledged the space Fuller devoted to these issues in his trilogy (Samek 1981).¹³ As a result, the work of Vaihinger, as well as Fuller’s position on the parallels between scientific and legal fictions, is little known to contemporary English-language theorists of the legal fiction.

Vaihinger was a German neo-Kantian philosopher who wrote the work for which he is best known, The Philosophy of “As-If,” in the late nineteenth century; the linguistic philosopher C.K. Ogden published an English translation in 1924,¹⁴ but apart from Fuller’s treatment, the work has since its translation received little English-language discussion.¹⁵ Typical of his generation, Vaihinger constructed a syncretic, systematic theory drawing on contemporary trends in biological science, psychology , and transcendental philosophy; he called his theory “positivist idealism” or “idealist positivism” (Vaihinger 1924, p. xli). Vaihinger’s central idea , building on Bentham’s theory of fictions and paralleling some of the insights of then-contemporary American pragmatism,¹⁶ was that human cognitive operations originate in the biological necessity of coping with an environment but are nevertheless inevitably “emancipated” from this instrumental function to become themselves the objects of cognitive operations (p. 15).¹⁷ This process generates both abstraction and “fiction” (pp. xxix–xxx), which Vaihinger calls “‘As if,’ i.e. appearance, the consciously-false, [which] plays an enormous part in science, in world-philosophies and in life” (p. xli).

Vaihinger’s exploration of these ideas runs to nearly 400 pages in the English translation. Half of the book focuses on the operation of fictionalizing in various spheres of human activity, particularly mathematics and the sciences (pp. 1–177). Vaihinger explains fictions in scientific and technical fields as devices for helping us to discover facts about reality.¹⁸ And he describes “juristic fictions” as precisely analogous to such mathematical and scientific fictions as the concepts of zero, negative numbers, and infinity.¹⁹ Fuller summarizes much of this information in his third essay on legal fictions. In particular, Fuller reiterates Vaihinger’s point regarding the parallels between scientific and legal fictions:

The contention that Vaihinger’s philosophy has no useful application to the law proceeds upon the assumption that there is a fundamental difference between the methods of the law and those of the physical sciences. The substance of the argument consists in saying that Vaihinger develops his philosophy around the fictions of those sciences which are concerned with the discovery and description of the facts of external reality, while the task of the law is not to discover the ‘facts’ or ‘laws’ of nature, but to establish a set of rules for the conduct of human beings. (Fuller 1930c, p. 902)

But, Fuller continues, at least those legal fictions that “attempt to describe the ‘nature of the law in general,’” or “jurisprudential fictions,” “represent a precise parallel to the methods of the physical scientist,” in that “[t]hey are attempts to reduce a complex reality to a simple formula, and thus render it tractable to calculation” (p. 903). Moreover, Fuller also describes the more workaday “fictions of legal technique,” such as “[t]he notions of a legal right and duty , of legal powers and liabilities, of legal personality,” as “all … in the Vaihingerian sense, fictions, and … essentially similar to the concepts of the physical sciences” (p. 905).²⁰

Fuller uses Vaihinger , then, to argue for the existence of basic similarities between legal fictions and other linguistic devices developed outside the law to manage social relations and interactions with a complex non-human world. Fuller does not see fictions as unique to the law; although they might take some legally specific forms, for Fuller, any special characteristics of legal fictions indicate not legal pathologies (as Bentham had maintained) (see Samek 1981, pp. 198–199; see also Chap. 4), but just the functions of those fictions in particular social and institutional settings. Fuller adds to Vaihinger’s framework as well: Fuller’s account is slightly more sensitive than Vaihinger’s to the importance of communities of convention and practice for the existence, maintenance, and utility of fictions, as well as to the need for those within such communities to justify their activities to others, a need Fuller presents as a matter of “persuasion” in his first essay. In Fuller’s view, legal fictions differ from other fictions mainly due to their generation within a specific community, that of legal practice and commentary; scientific and technical fictions result from parallel processes within different communities .

Unfortunately, post-Fuller theorists have not made much use of these points. Instead, they have virtually without exception adopted legal-doctrinal or analytic philosophical vocabularies to discuss the topic. They have, that is, participated “internally” in processes of conventionalization that Fuller’s trilogy suggested could be fully grasped only from a partly “external” perspective. This self-limitation is not necessarily vicious. Among other things, it has kept the commentary on legal fictions comprehensible to others within the same discourse communities . But it has also left important implications of Fuller’s theory unexplored.

The rest of this paper pursues some of these implications. Part II turns to a survey of some post-Fuller developments in the study of communities of linguistic convention, describing the approaches and findings of major late-twentieth-century work on the analysis of academic and professional discourse. Part III applies these approaches to two bodies of relevant professional discursive practice: first, the roughly 100 Supreme Court opinions that have used the “legal fiction” label, with a focus on the normative and persuasive function of the label in these sources; and, second, the 50-plus most-cited American law review articles on the subject of the legal use of scientific evidence.²¹ These discussions make available insights inaccessible to Fuller’s previous commentators, suggesting, among other things, the limits of Fuller’s counterfactual definition and some of the reasons for the necessarily ever-shifting shape and location of legal fictions in legal discourse.

Over the past several decades, rhetoricians who teach and study writing across the curriculum or for professionals-in-training began to produce a cohesive body of studies of discourse patterns in nonfiction texts (e.g., Bazerman 1988; MacDonald 1994; Halliday 1973; Swales 1990). These scholars’ pedagogical and scholarly interests drew them to practical, detailed analysis of the differences in discourse patterns between different academic and professional communities. As Charles Bazerman, a pioneer in the area, put it, the driving assumption in this work is that “[r]hetoric is ultimately a practical study offering people greater control over their symbolic activity” (1988, p. 6 n. 7).

The work tends to be highly interdisciplinary. Qualitatively, it continues the traditions of close reading and analysis developed in literary criticism, hermeneutics, cultural anthropology, social and intellectual history, the philosophies of language and science, and phenomenology. But it also examines material features of bodies of texts (as opposed to the single texts that tend to be the focus of close reading); sometimes this undertaking supports more quantitative approaches drawing on bibliometrics and citation analysis (techniques originally developed in information science fields), all considered in light of more general theories about the social and material setting of such practices, drawn from the sociology of knowledge and the professions, as well as psycho- and sociolinguistics and psychology .²²

A few legal scholars have adopted similar approaches, especially to citation analysis, but legal scholars have not paid much attention to most of this work (see Petroski 2012, pp. 368, 371, 374–378). The most analogous legal scholarship seeks, rather, to assess the influence of legal scholarship on legal decisionmaking outside the academy (e.g., Petherbridge and Schwartz 2011; Harner and Cantone 2011) or to advance the legal realist project of demystifying legal discourse (the most recent work on legal fictions discussed above tends to fall into this category). But the findings of discourse analysis also yield other possible paths of inquiry . The rest of this Part outlines some of these possibilities suggested by two influential works in this area: Charles Bazerman’s 1988 study of the historical development and features of the scientific “experimental article” and Susan Peck MacDonald’s 1994 extension of this work to the study of academic writing in the humanities and social sciences.

Bazerman’s pioneering book characterizes academic scientific discourse as the primary product of a particular inherently social activity.²³ To Bazerman, “a[ny] community constitutes itself in developing its modes of regular discourse” (p. 79); this is true of both scientific and academic communities, whose members are devoted to the generation of discourse and in turn find their communities shaped by features of that discourse.²⁴ Historically, Bazerman traces how the social and publication structures of mid-eighteenth-century English scientific practice coalesced around a strategy of “exclusivity” rather than “inclusivity” (p. 136); how “empiricism” then developed as “a mode of persuasion” by which the private witnessing of empirical facts began to require special training to translate into explanations of experimental results (p. 140); how scientific articles subsequently increased in length and began citing other articles at higher rates, especially as article writers started integrating citations into their arguments as a kind of shorthand reference to complex concepts (p. 167); how the conventional grammar and syntax of experimental prose likewise changed in ways “suggest[ing the] increasing intellectual complexity” of the claims being made (p. 169); and, ultimately, how writing in social-scientific fields began to “imitat[e] the forms of argument developed within the natural sciences” (p. 257). In part, Bazerman bases these conclusions on analysis of the microstructures of scientific writing, including sentence structure as well as argument structure and content; these features affect and restrict what can be said and how, even though the acknowledged purpose of scientific discourse is “just simply to record the natural facts” (p. 14). We see scientific discourse as unproblematically fulfilling that purpose, Bazerman contends, partly because these microstructures are so familiar as to be invisible to us—but they were not always so. Bazerman does not explore the implications of his approach for legal discourse, but his concerns and general conclusions are completely consistent with Fuller’s.

Although Bazerman’s focus is on scientific writing, he does suggest that scholarly writing in the social sciences (pp. 257–288) and humanities (pp. 39–45) might differ from scientific writing in meaningful ways . Susan MacDonald has further explored some of these differences (MacDonald 1994, pp. 4–5, 7). Continuing Bazerman’s inquiry into microstructures of communication, MacDonald examines “sentence-level differences in disciplinary knowledge-making” (pp. 147–169). The centerpiece of her analysis is a classification of grammatical sentence subjects²⁵ in academic writing from three disciplinary subfields of psychology , social history, and literary criticism and theory (pp. 56–70, 75–107, 109–144). This study shows, according to MacDonald, that writing in disciplines conventionally considered scientific or quasi-scientific, like psychology, contains a relatively greater number of abstract, “epistemic” sentence subjects (p. 160), suggesting “that psychologists place greater importance on cooperative disciplinary knowledge making than historians and literary academics” (p. 160) and that disciplines of this sort tend toward “disciplinary compactness,” i.e., “progressive[]” “build[ing] upon the work of … predecessors,” rather than reinvention of problems and solutions anew with each scholarly effort (pp. 25, 64–65). Literature scholarship, in contrast, has a “less epistemic focus” (p. 164) than academic writing from the other two subfields; literature scholarship includes more concrete , “phenomenal” grammatical subjects (p. 159). MacDonald surmises that this difference might be related both to literature scholars’ almost exclusively textual subject matter²⁶ and to these scholars’ relative lack of disciplinary community after the erosion of an early twentieth-century “gentlemanly tradition of politeness in [literary] scholarship” (p. 121).

Bazerman and MacDonald are just two among many academics with similar interests in language usage within specialized communities dedicated to the production of written material. The professional and academic legal communities share this dedication, as Fuller recognized. Many of the core features of academic writing, such as its presumed “transparency,”²⁷ are also present in professional legal writing (but see Mellinkoff (1962)). And like academic writing, legal writing is a central product of a professional community largely defined by its members’ relationship to a tradition of publicly disseminated texts. More generally, the legal community shares academic communities’ goals of engaging in “socially negotiated inquiry” (MacDonald 1994, p. 7) and the making of “knowledge claims” (p. 9). It therefore makes sense to use discourse analysis to study the discourse of both judicial opinions and legal scholarship. Yet the types of discourse analysis done by Bazerman and MacDonald have been little noted by legal academics to date.²⁸

One reason for the relative scholarly inattention to the microstructures of legal discourse might be the difficulty of locating this discourse precisely along the continuum of discourse modes proposed by Bazerman and MacDonald, which runs from the natural-scientific at one extreme, through the social-scientific, to the humanistic at the other extreme. Modern judicial opinions and legal briefs involve and depend on considerable “disciplinary compactness”; parenthetical cites to precedential opinions, as well as “string cites,”²⁹ epitomize this discursive characteristic. This feature of opinions and briefs makes them resemble academic writing in natural-science disciplines. On the other hand, legal opinions and briefs, like humanistic work, focus largely on texts considered as texts. Legal scholarship shares both of these features of opinions and briefs, and thus also resembles both natural-scientific and humanistic scholarship. So it is not immediately obvious where legal discourse fits within the schemes developed by discourse analysis.

This difficulty, however, does not make it impossible to study the microstructures of legal discourse. On the contrary, it suggests that such study might usefully advance both our understanding of the kinds of issues that concerned Fuller and our understanding of other specialized discourse communities. For example, we can test both Fuller’s understanding of legal fiction as a species of linguistic convention and the prevailing understanding of the phrase as referring to counterfactual propositions by examining how and when judicial opinions have actually referred to parties’ or their own statements as legal fictions. As Part III.A below explains, over the past two hundred years or so, justices of the United States Supreme Court have changed their patterns of such reference in some surprising ways. These changes suggest that the prevailing equation of legal fictions with counterfactual propositions may be too narrow; instead, it seems that judges most commonly use the phrase when they become aware of the futility of further justification to non-legal audiences.

The received “counterfactual” conception of the legal fiction suggests a dichotomy between properly factual and fictional propositions. On this understanding, legal discourse that relies on fictions would seem to be the antithesis of factual scientific discourse. Notably, however, Fuller did not make this argument. Rather, like Vaihinger, and anticipating the implications of Bazerman’s work, Fuller argued that in certain ways the parallels between legal fictions and scientific discourse outnumber the differences. But both Vaihinger and Fuller considered legal and scientific discourse as distinct, nonoverlapping systems of communication. They did not directly consider what might happen when members of these different communities try to communicate with members of others, or to make use of the products of other communities’ efforts. In legal writing, we can see this intersection of discourses most dramatically in the treatment of scientific information for purposes of dispute resolution. To investigate the legal treatment of “fact” in this sense, Part III.B looks at features of legal scholarship on the relations between scientific and legal discourse, analyzing shifts over time in the topics addressed, the assumed knowledge of readers, charges to readers, and grammatical subjects (see Bazerman 1988, p. 25). These shifts, like the changes in use of the term “legal fiction,” show that the recognized boundaries of what is communicable in legal texts—even to scholarly audiences—have not only altered but become more indefinite over time.

Writers of United States Supreme Court opinions have consistently used the “legal fiction” term to mark claims that lie on the boundaries of what the writers perceive as justifiable to those outside the legal community’s conventions. Their usage of the term also suggests that the types of claims perceived as difficult to justify to the non-specialist have themselves shifted over time. These conclusions are based on a study of 120 Supreme Court opinions in which the phrase “legal fiction” has appeared (a total of 142 uses of the term).³⁰ The study traced shifts in the frequency with which the term has been used, as well as shifts in what it has been used to refer to—its semantic content. In addition, the study identified shifts in the term’s syntactic function, that is, in the frequency with which the term or its referent has coincided with the grammatical subject of the clause in question. The purpose of focusing on the semantic and syntactic functions of the label was to examine how the term has functioned to hook legal justifications up to the semantically indicated “real world” of non-legal fact beyond legal authority.³¹