On the Theory of Juridic Fictions. With Special Consideration of Vaihinger’s Philosophy of the As-If

© 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_1

1. On the Theory of Juridic Fictions. With Special Consideration of Vaihinger’s Philosophy of the As-If

Hans Kelsen1 and Christoph Kletzer 

The Dickson Poon School of Law, King’s College London, Strand, WC2R2LS London, UK



Christoph Kletzer


This is a translation into English of Kelsen, Hans. 1919. Zur Theorie der Juristischen Fiktonen: Mit besonders Berücksichtigung von Vaihingers Philosophie des Als Ob, Annalen der Philosophie 1: 630–658.

1.1 Content

I. The notion of a fiction and the object of cognition in legal science. The opposition to “reality”. The actuality of nature and the actuality of the law. The extension of Vaihinger’s concept of a fiction. True fictions of legal theory . The legal subject.

II. The so-called “fictions” of legal practice . The pseudo-fictions of the legislator. Their fundamental difference from epistemological fictions; the absence of a cognitive aim and the absence of an opposition to the actuality of nature or the actuality of the law. Article 347 of the German Commercial Code. The praesumptio iuris. The praetorian fictions.

III. “Fictions” in the application of the law. The analogy. Its uncorrectable conflict with the actuality of the law and its juristic inadmissibility. The legally required analogy.

IV. Legal theory and legal practice. The moral fiction of “freedom“. Its dispensability in the case of a dissolution of the faulty syncretism of the perspectives of is and ought. The fiction of the “social contract” establishing the state. Its dispensability for legal positivism.

V. The sovereignty of the legal order. The independence of law from morality . The allegedly fictitious character of this separation. Vaihinger’s “practical” fictions. The legal norm and legal duty are not fictions .

1.2 I

A considerable part of Vaihinger’s notable theory of fictions has been developed by reference to the so called “juridic” fictions. As a matter of fact, Vaihinger understood juridic fictions to be a paradigmatic case of fictions. For him, apart from mathematics, there was hardly another field better suited to the deduction of logical laws, to the illustration or development of logical methods in general, and of the method of the fiction in particular, than the law. He further expressed his regret about the fact that logicians have so far neglected the juridic fiction since they did not see that logic has to take its subject material from an actually living science.1 For Vaihinger the juridic fictions are “scientific” fictions2 and they do not in principle differ from epistemological fictions.3 He explicitly stresses “the formal identity of the actions of understanding and of the whole intellectual state in juridic fictions with all the other scientific fictions”.4

However, the notion of a “juridic fiction” captures quite a broad variety of phenomena: only a relatively small part of them can be seen as fictions in the actual sense of this term, i.e. as fictions according to Vaihinger’s own definition. After all, most of the phenomena which Vaihinger himself treated as “juridic fictions” and which he uses to lay the foundations of his meritorious theory, are no fictions at all; at least they do not serve as examples of the intellectual constructs, to which the very qualities apply which he so fittingly describes. Thus, even though we have to unreservedly agree with the main results of Vaihinger’s philosophy of the As-If, it is especially in relation to the juridic fictions, i.e. in relation to the kind of fictions Vaihinger prefers to use, that the arguments have to be seen to be unconvincing.

According to Vaihinger a fiction is characterised both by its end and by the means through which this end is reached. The end is the cognition of the actual world; the means, however, is a fabrication, a contradiction , a sleight of hand, a detour and passage of thought. It might be a somewhat odd means, the fiction is nevertheless a means that logic uses; it has epistemological character and has its relevance as an instrument of cognition.5

It is the cognition of actual reality which the fiction serves. “The conscious turning away from actual reality is meant to prepare the cognition of the latter.”6 And the opposition to actual reality is one of the principal characteristics of the fiction.7

Now, it has to appear doubtful from the very beginning whether in the natural sciences we could ever come across fictions which do not in their essence aim at the cognition of actual reality. If we take a fiction to be an—admittedly somewhat odd—means to grasp actual reality, then only a view of legal science which has completely strayed off its usual ways could make use of a fiction in this sense, and accordingly a fiction in this sense could never yield legal scientific cognition , not even in an indirect sense, via a detour. If by means of a fiction we claim the actuality of something (and be that in contradiction to actuality itself), then in a scientific endeavour which does not even attempt the cognition of something existing in actual reality, a fiction can only ever be an illegitimate and completely useless, viz. only harmful error.

As a matter of fact, Vaihinger was himself well aware of the true nature of legal science! He repeatedly stresses that the task of legal science is not to gather knowledge of something that exists in actual reality. “So far the only truly scientific fiction we talked about was the juridic fiction; however, it needs to be stressed that legal science is not actually an empirical science, a science that deals with what actually exists, but a science that deals with human, arbitrary institutions.”8 Legal science aims at the knowledge of an ought; calling this object “human arbitrary institutions” is not entirely correct, since human arbitrary institutions, too, are something actual and can be objects of an empirical science, e.g. of sociology.

However, no grave objection to Vaihinger’s theory of fictions emerges from all of this. What emerges is only a significant modification. After all, legal science does indeed make use of fictions. We will demonstrate below, what kind of fictions these are and that most of Vaihinger’s “juridic fictions” are not true fictions at all. All that needs to be said here is that Vaihinger’s concept of a fiction becomes too narrow, as soon as one allows only empirical reality to be the object, the only target or product of cognition. And insofar as one wants to accept as sciences also those sciences which are not natural sciences, such as, for instance, ethics and, in particular, legal science, then such a restrictive understanding of fictions cannot be accepted. A thus appropriately expanded concept of a fiction emerges, as soon as we replace “actual reality” as the specific object of cognition with this “object of cognition” itself, understood in general terms. And we have to speak of a fiction as soon as cognition (and especially juridic cognition) takes a detour in knowing its object (and in juridic knowledge this object is the law, the legal order, the legal ought), a detour in which it consciously sets itself in contradiction to this object; and be it only in order to better grasp it: just like a rock-climber, in order to avoid an obstacle and reach his goal more easily, is sometimes forced to temporarily climb downwards, i.e. in a direction directly opposed to his goal, the peak.

It is in this sense that there are true, i.e. epistemological fictions in legal science. They are fictions of the attempt to know the law, fictions of the intellectual mastery of the legal order. They are fictions of legal theory . Such a fiction, an auxiliary concept, an auxiliary construct, is, for instance, the concept of a legal subject or the concept of a subjective right.

In this context we do not need to fully investigate the concept of a legal subject or a person in all its facets. What should suffice is to show how fruitful the application of Vaihinger’s philosophy of the As-If to the fictions of legal theory can be.

In the common juristic understanding a person—and be it the physical person or the legal person —exists as an object distinct and independent from the legal order. We usually call this object the “bearer” of duties and rights and attribute to it more or less actual existence in the real world . Whether one wants to limit this kind of independent existence to the physical person or wants to extend it also to the so called legal person (like the organic theory wants to do) does not matter here. What suffices is to note the marked tendency to posit the person as something that exists in actual reality.

Now, if the physical as well as the legal subject can be shown to be nothing but the personification of a complex of norms 9 for the purposes of simplification and illustration—something which cannot be comprehensively demonstrated in this article—then the idea of a person, which is commonplace in legal theory , would be a typical example of a fiction; and Vaihinger has to be credited with making the interesting and complex thought-mechanism of the latter transparent. It is an intellectual construct which aims at capturing the object of legal science, i.e. the legal order, yet is nevertheless itself merely a product of imagination and is in thought added to the object of cognition. It is thus somehow a duplication of the object and a distortion of cognition. By that, this mere aid-to-thinking sets itself in direct opposition to the object, i.e. to the specific legal reality , and becomes in itself contradictory, just like any analysis of the concept of the person would reveal. Now, if the person (which was originally only set up as a specific aid-to-thinking, as a mere framework aimed at grasping the legal order) is posited to be an actually existing thing, i.e. as a kind of natural object, then a thus enhanced fiction does indeed involve an opposition to actual reality, which can only be possible in the transgression of a legal theory , thus in a theory that claims to have natural facts as its objects.

The concept of a legal subject is primarily a kind of fiction which Vaihinger calls a “personifying fiction”. They emerge from our tendency to anthropomorphically personify intellectual constructs, a tendency which has forever dominated our intellectual capacities, and which forms this “undying inclination of man”10 to hypostasise everything which is purely intellectual into the shape of a person or subject and to thus make it intelligible. “The common principle is the hypostasis of phenomena in some respect, irrespective of how far the hypostasis aligns itself with this image of the person. This image of the person is also the truly determining factor in the category of the thing.”11 “The basic scheme of substantiality is, after all, personality.”12 This does indeed apply to the personifications of the law (i.e. of the legal norm), and it is in this way that we have to understand the legal subject. The legal norm, i.e. the fact that certain human behaviour ought to be a certain way, presents itself as the hypostasis of this purely intellectual object . And the insight that the concept of a thing is also a personifying fiction lets the legal subject and the subjective right, which are somehow understood as “things” appear to be quite similar, if not identical hypostases of the “objective” legal norm. It cannot be stressed enough that the concept of the legal subject has the same logical structure as the most characteristic form of personifying fiction, i.e. of the concept of the soul, or the concept of force,13 the logical untenability of which does not militate against its actual practicability. It would certainly be a worthwhile endeavour to try to understand the legal person as a kind of legal soul. And it is by no means moot to clarify that the concepts of ethical personhood and of the “conscience”, too, are illustration-serving personifications of a norm, namely the moral norm. Vaihinger very appropriately characterises this duplication of the object of cognition which is effected in the fiction in general, and in the personification in particular, and one could not describe this strange duplication of the law, this tautology, which can be found in the legal subject, better than with the words of Vaihinger , who in this passage did not intend to capture the legal concept of the person, but the concept of a force: “It was especially the seventeenth century which has created many of these concepts in its sciences;14 it was believed that by means of these concepts one has actually understood something; however, such words are but shells, which are supposed to hold together and contain a material nucleus. And just as the shell in all its forms traces the nucleus and in duplicating the latter simply represents it externally, so these words or concepts are but tautologies, which simply repeat the actual thing in external clothing.”15

The contradictions , which are posited in the notion of a legal subject, which claims to be a thing distinct from the legal norm (of the “objective law”), but which is just the latter’s repetition, these contradictions may not be resolved, but they at least become transparent to us as soon as we accept (after Vaihinger has told us), that it lies within the nature of fictions to entangle us in contradictions. “By its very own doing thought leads us onto certain pseudo-concepts just as seeing leads us into unavoidable optical illusions. As soon as we recognise this optical semblance as being necessary, as soon as we consciously accept the fictions created by it (e.g. God, freedom etc.) and also see through them we can bear the ensuing logical contradictions as necessary products of our thought and reach the insight that they are the necessary consequences of the inner mechanism of the thinking organ itself.”16

This is why the fiction of the legal subject, which is in itself contradictory, can nevertheless be accepted without harm to legal science, since it has the advantages of illustration and simplification. This, however, is true only as long as and insofar as one remains aware of its fictitious character and of the duplication which is effected by means of the concept of the person. Until then we can dispense of what Vaihinger calls the correction of the fiction. “Insofar as the fiction presents an opposition to actual reality, it can only have value if it is employed provisionally. This is why … it needs to be corrected.”17 “The mistake has to be reversed by simply discharging of the construct which was fictitiously introduced.”18 Vaihinger expressly states: “Such a correction does not seem to be necessary for juridic fictions; and it indeed is not necessary. Since here we are not dealing with an exact estimation of something actual, but with a subsumption under an arbitrary law, a man-made construct, not a natural law , not a natural relation.a’’19 However, Vaihinger thereby does not really refer to the kind of fictions which are found in the legal concept of a person. The latter concept is created by legal science, by legal theory or the cognition of law. This is not the case with thewith the “juridic” fictions employed by the legislator or someone applying the law. However, it is to these that Vaihinger mainly refers even though they are intellectual constructs which do not serve cognition and are thus not fictions in the logical sense. Still, Vaihinger’s comments pertain precisely to the fiction of the legal subject employed by legal theory. However, by claiming that in legal science we do not intend to capture an actual reality he has characterised the essence of legal science as opposed to natural science only in a negative sense. Put positively, legal science intends to comprehend an ought, it intends the cognition of norms.

The concept of the legal person can be employed with benefit as long as it is understood in accordance to its own logical structure, i.e. as a mirror image. However, this concept has not been able to avoid the danger that comes with any personification: its hypostatisation into an actual object of nature. Insofar as theory takes a mere mirror image as an actual thing, it stretches the contradiction —one by which the law as subject (i.e. the legal subject) already stands, in and of itself and before any position of actuality exists, against the law as object (i.e. the objective law)—to a contradiction against actuality. In the concept of a legal person a natural thing is claimed to exist, which never and nowhere exists in actual reality. This is true both for the “physical” and for the so-called “legal” person. Vaihinger aptly compares the fictitious constructs of thought with “knots and nodes” which thought ties into the threads presented to it, “knots and nodes … which provide ancillary service to thought, which, however, become pitfalls for thought, as soon as the knot is taken as something that is contained in experience itself.”20 It is precisely this illicit positing of the person as being something actual which leads—as Vaihinger has shown in relation to the other fictions—to all the“pseudo problems”, the “artificially created difficulties”, the “self created contradictions” which abound in the doctrine of the “legal” person just as they abound in all philosophical and scientific theories that gather around a fictitious concept.21

At least here, however, a “correction” has to step in, and this correction can happen in no way other than by a reduction of the concept of the person to its natural boundaries, by means of a self-reflection of legal science, by means of a clarification of its logical structure. If one had not demanded from the legal concept of the person more than it can in its essence provide, then one could have been spared the entirely fruitless discussion which has developed around the person, and in particular around the concept of the “legal” person; then the downright naive and paradox blunders of juridic theory and the excesses of an organic theory could have been avoided, blunders and excesses which can only be explained by reference to the delusive power of fictions, which also mislead scientific thought, and which lost itself in juristic mysticism.

1.3 II

What needs to be clearly distinguished from the fictions of legal theory are the so-called “fictiones juris”, the fictions of legal practice, i.e. of the legislator and of the application of the law. Now, as firstly concerns the “fictions” employed by the legislator, the fictions within the legal order, it must be stressed that these do not constitute “fictions” in Vaihinger’s sense. After all, the positing of a norm, the legislative activity, is not a process of thought, and does not have cognition as its goal. It is rather an act of will, if indeed we want to see it as a process or a procedure at all. The legal order is expressed in words and these words undoubtedly often display the grammatical form which normally is found behind epistemological fictions: the “As-If”. However, due to the lack of any aim of cognition within the legal order—which as such is the object of cognition, and not itself cognition or an expression of cognition—the words of a legal norm can never contain a “fiction” in Vaihinger’s sense.

Let us immediately have a look at the example Vaihinger uses in his chapter on “juridic fictions”: Article 347 of the German Commercial Code “where it is stipulated that a good which is not in time returned to the sender has to be treated as if it had been approved and accepted by the receiver.”22 In this example we are supposed to immediately see the identity in principle between the analogous fictions, e.g. the categories, and the juridical fictions. However, in the categories, just as in all true fictions, the human intellect aims to comprehend actuality or some other object. In the fiction of Article 347, however, neither actuality nor anything else is intended to be comprehended, it should rather be regulated, a norm of action is given, i.e. an actuality is supposed to be created. Of course, there is a deep connection between the intellect which orders the world by employing categories and which thus creates the world as ordered unity, on the hand, and the law that regulates and thus creates the legal world, on the other. However, the difference of principle between the epistemological and juridic fiction of the legislator shows in the fact that in the latter case there can never be found an opposition to actuality, be it to the actuality of nature, or be it to the actuality of law (i.e. of the law as an object of cognition). Such a contradiction could only be found in a statement about what is (and if one wants to accept the extended concept of a fiction here proposed: about that what ought to be). However, the law cannot include such a statement. In a law no cognition is expressed. The statements in which the law expresses itself are not statements in this sense. Article 347 by no means states that the goods not returned in time to the sender are actually approved and accepted. It simply states that in case goods are not returned in time the same norm applies as in the case the goods are accepted; it states that in this case the sender and the receiver have the same duties and the same rights as in the case of actual acceptance. Article 347 stipulates that goods not returned in time have to be treated just as goods which are accepted. The grammatical form of the “As-If” thus is not in any way essential, it can be replaced by a mere “just as”. If the law subsumes two cases under the same norm, it by no means claims that both cases are alike—in the sense of naturally alike. Or otherwise every general norm would be “fiction” since there are no two men, two facts which are alike. However, “legally” they are effectively, actually and truly alike, since they are made alike by the legal order. Article 347 is, just like any so-called “fiction” of the legislator, nothing but an abbreviating expression. The law simply wants to attach the same legal consequences to one case as it does to another. To phrase this in a separate norm would be too cumbersome, too laboured; or maybe the second case was not even considered in the first place. It would be superfluous to repeat all the rules which have already been set down for the first case. The legislator can rest content with declaring that in the second case the same rules apply as in the first case. It is a misunderstanding to suppose that this effect would be achieved by forcing the person applying the law to accept the idea that both cases are alike, i.e. that they do not differ as a matter of fact. That they are “legally” the same simply means that despite a natural difference in fact the same legal consequence is supposed to follow. And this difference of fact can by no means be ignored in applying the law. The judge first has to establish the facts ; he has to establish whether the goods were accepted or whether

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