Legal fictions present the law with an enigma. Law exists as a mechanism of social organization and control. It creates institutions and procedures to structure the social order toward the ends of securing life and liberty, distributing benefits and burdens, and resolving disputes without recourse to private force. In ideal form, the law fulfills these functions in a harmonic unity of fact, truth, and justice . Legal fictions ill-fit this ideal aspirational vision. For legal fictions seemingly fashion legal truths out of factual falsehoods.

Accounting for legal fictions has proven difficult for legal theory. For it is hard to craft a jurisprudential standard that appears to countenance deliberate falsehood on the part of legal officials. The very idea famously drew a volley of criticism from Jeremy Bentham, who characterized legal fictions metaphorically as a pestilence of judicial depravity, a systemic rottenness that reduces the administration of justice to the “most pernicious and basest sort of lying” (Bentham 1843, I 235). Still, fictions pervade the law. To account for them—or to argue convincingly against their worth as instruments of legal thought and expression—is thus an imperative of any systematic study of law.

This chapter attempts such a systematic accounting of legal fictions using a jurisprudence grounded in pragmatist philosophy. I employ a classical/analytic sense of pragmatism, influenced most by the early American pragmatists William James , John Dewey , and Alain Locke , along with their European contemporaries F.C.S. Schiller and Ludwig Wittgenstein .¹ My sense of pragmatist jurisprudence is further indebted to certain analytic philosophers in the pragmatist tradition, notably C.I. Lewis , W.V.O. Quine, and Hilary Putnam , and to Hon. Benjamin Cardozo , who disclosed the pragmatist nature of common law adjudication nearly a century ago.

Though tentative and preliminary, I propose a reconceiving of the concept of legal fictions. Standardly, fictions are treated in legal theory as consciously false assumptions. This is regrettable. For it creates logical confusion, renders fictions unnecessarily confounding, and compromises the integrity of law and judicial decision-making. I suggest instead that legal fictions be understood as true legal propositions asserted with conscious recognition that they are inconsistent in meaning or otherwise in semantic conflict with true propositions asserted within some other linguistic system (or elsewhere within law). Understood this way, fictions need not present legal theory with an intractable enigma. For the legal fiction is simply a form of creative lawmaking , a phenomenon of legal (primarily judicial) technique employed to resolve trouble in the legal environment . Questions about the merits of a legal fiction should go to whether the fiction damages established truths, meanings, or understandings in some extralegal realm or within law itself as a result of a collision in meaning. Used well, legal fictions inflict no damage while producing workable and beneficial doctrines or rules. Used nefariously, they upset settled meanings or truths, work injustice, or mask underlying processes of legal reasoning. As with other methods of creative legal technique, legal fictions must be evaluated case-by-case in context. The technique as such is neither sickly nor sinister.

My argument rests on the pragmatist meaning of truth . Before turning to that theory and developing this pragmatist sense of understanding legal fictions I will consider briefly the current status of the legal fiction. I ask, to begin, what are legal fictions and how have they been defined or characterized within jurisprudential tradition.

The paradox of legal fictions begins in a puzzle of definition. Just what is a legal fiction? This simple question yields no easy answer.

From the final third of the eighteenth century through the first third of the twentieth, the legal fiction was a common topic among writers in legal philosophy and history. The discussion in this era went primarily to what the concept denotes and how fictions function in law, not to what the term ‘legal fiction’ intensionally means . Bentham characterized the legal fiction quite generously before denouncing the entire category as the product of either wishful theoretical fancy or illicit judicial lawmaking . Most jurists treated fictions less critically, often describing them as commonplace and relatively unexceptional features of law. The broadest and most favorable characterization came from Pierre de Tourtoulon who conceived of the legal fiction as the source of law’s most significant progress and practical growth. To Tourtoulon, all legal institutions begin and evolve through fictions, such that “if one would try to strip the Law of every fiction of the past as well as of the present, not much would be left” (Tourtoulon 1922, p. 388). Roscoe Pound considered construction of legal fictions to be a central form of creative adjudication. Focusing on procedural fictions and what he regarded as the bolder, more general fictions of equity , natural law , and judicial interpretation , Pound saw fiction-making as an inventive technique that allows growth in law through creation of new institutions, principles, and precepts. Savigny similarly saw the fiction as a critical factor in the development of law, a form of legal thinking that permits the joining of new rules and doctrines with existing legal institutions in a way that preserves certainty and minimizes disturbance. Jhering , and following him John Chipman Gray , classified fictions as historical or dogmatic. Their historical category includes fictions fashioned to introduce new law or extend remedies. Dogmatic fictions arrange and classify existing law, often in creative ways. To Jhering, the primary function of all fictions is the analogical extension and classification of legal concepts. Toward that end he saw them holding high value, for they make growth and adaptation of law more efficient by unburdening lawmakers from modifying the form of the law while saving jurists the trouble of adjusting the concept. Blackstone too perceived fictions as “highly beneficial and useful” in furthering growth in legal doctrine and avoiding mischief in the application of general rules , though he was troubled by what he considered the strange logic on which they depend (Blackstone 1979, III 43) . Sir Henry Sumner Maine defined the legal fiction broadly as any assumption that deliberately “conceals, or affects to conceal, the fact that a rule of law has undergone alteration, its letter remaining unchanged, its operation being modified” (Maine 1861, p. 22). While he extolled fictions as “invaluable expedients for overcoming the rigidity of law” so essential in certain formative stages of social progress, Maine cautioned that as legal systems mature, fictions work against coherent understanding of legal rules, becoming instead “the greatest of obstacles to symmetrical classification” (Ibid., pp. 22, 23).

The most notable jurisprudential effort to intensionally define the legal fiction came from Lon Fuller in the early 1930s. In what has become the classic definition of the legal fiction, Fuller opined: “A fiction is either (1) a statement propounded with a complete or partial consciousness of its falsity , or (2) a false statement recognized as having utility” (Fuller 1967, p. 9). Certain points here deserve emphasis. To Fuller, a legal fiction is neither a lie nor a statement made in error; it is a knowingly false assertion “adopted by its author with knowledge of its falsity. A fiction is an ‘expedient , but consciously false, assumption’” (Ibid. p. 7, quoting Vaihinger 1984). The author must not intend to deceive nor offer the fiction “with the intention of producing belief in its truth” (Fuller 1967, p. 7). Further, the fiction must be known to be false and disbelieved by others. To Fuller, fictions are only safe and beneficial when used with complete consciousness of their falsity: “A fiction taken seriously, i.e., ‘believed,’ becomes dangerous and loses its utility” (Ibid., pp. 9–10).

After Fuller, the legal fiction fell for several decades into relative jurisprudential obscurity. Jerome Frank in 1936 appended some notes on fictions to his Law and the Modern Mind. Edwin Patterson briefly broached the topic in his comprehensive mid-century treatise, Jurisprudence: Men and Ideas of the Law. Alf Ross , in a thoughtful essay published in 1969, challenged the traditional treatment of legal fictions as involving consciously false assumptions. A handful of law journal articles addressed the topic in the 1970s and 1980s (e.g. Campbell 1983; Schane 1987; Soifer 1986) . Otherwise the fiction received for many years just occasional hurried references. H.L.A. Hart twice commented in passing on Bentham’s treatment of obligation, right , and duty as fictitious entities (see Hart 1982a, pp. 42–43; Hart 1982b, pp. 128–131). Lord Devlin spoke only once of fictions, cautioning that historical fictions , used commonly by judges “to reform the law without obvious innovation,” can be “dangerous because they have a tendency to spread” (Devlin 1979, p. 162) . By 1990 Louise Harmon could rightly observe that the legal fiction had become a nearly forgotten topic in legal theory .

This changed with the new century. The legal fiction recently has risen from its jurisprudential dormancy. Some legal scholars have reignited the traditional inquiry into understanding the concept of legal fictions. Others take a new, critical tack, cataloging several “new legal fictions”—e.g. the institution of slavery , the entire field of tax law , certain evidentiary and interpretive presumptions, and the doctrine of discovery that figures so prominently in American Indian law . This new line of scholarship differs in two respects from the traditional approach. First, it does not aim to understand philosophically the concept of legal fictions. Instead it is doctrinal and normative, a critical examination of certain substantive legal regimes or doctrines said to be fictitious. Second, it tends to use ‘legal fiction’ as a term of rebuke. In the new scholarship the legal fiction has become, for the most part, an inflammatory concept marking a legal doctrine or regime as manifestly unjust, needlessly complex, or intentionally deceptive. Unlike the Benthamite worry that the process of fiction-making is inherently flawed, much of the new scholarship assumes, without discussion, that any legal fiction as such is substantively clandestine.

In one respect, however, the new scholarship resembles the old. Falsehood . Across time nearly all legal theorists have presumed that every legal fiction makes a consciously false assumption. Bentham thundered against legal fictions because they perpetrate “wilful falsehood” (Bentham 1977, p. 509). Tourtoulon admitted “the fiction does falsify reality” (Tourtoulon 1922, p. 385). Among today’s theorists, Frederick Schauer affirms: “Fictions are, by definition, false, and thus a legal fiction is a legal falsehood” (this volume, Chap. 6, p. 126). John Prebble argues that tax law fictionalizes a duplicitous and incoherent tax base that has no complement in reality but instead offends the “real business profits … [that] exist in the natural world” (Prebble 2002, p. 310). Prebble sees the fictions of tax law as importantly different from classical legal fictions, though they share the necessary condition that “a pure legal fiction is a statement that is truly false” (Prebble 2011, p. 19). In portraying the doctrine of discovery as a fiction, Jen Camden and Kathryn Fort define a legal fiction as “a statement that the judge knows is false and uses it as such” (Camden and Fort 2008, p. 85) . Nancy Knauer takes issue with Prebble and Camden and Fort, maintaining that so-called new legal fictions such as theirs are miscast as fictions. For to Knauer none of the new fictions are “demonstrably false,” a criterion she considers necessary for a legal proposition to qualify as a fiction (Knauer 2010, pp. 40, 49). Knauer draws this requirement from Fuller whose classic definition captures the sentiment, common to the earlier era and the new scholarship, that a legal fiction involves a consciously false assertion: “A statement must be false before it can be a fiction. Its falsity depends upon whether the words used are inaccurate as an expression of reality” (Fuller 1967, p. 11).

This emphasis on falsehood is unfortunate. Certainly it is useful in referring to the Roman fictio, the ancient practice of allowing false averments in pleadings that a defendant could not contest. But to say today, following Fuller, that any “statement must be false before it can be a fiction,” or, with Schauer, that “a legal fiction is a legal falsehood” creates logical confusion. For utterances in the form of legal fictions are not, generally speaking, false within law—e.g. corporations are jural persons . That is a true proposition of law. Yet if, as Fuller and tradition would have it, every legal fiction makes a consciously false assertion, then that true proposition is also false. The practice of fiction-making thus not only, on the traditional account, fills the law with falsehood, it also ensnares it in logical contradiction.

Few who have written on legal fictions have apprehended this logical dilemma. John Dewey did in the specific context of the fiction of corporate personality . Alf Ross did too, noting more generally that “the prevalent definition of fiction as consciously false assumption is contradictory and therefore has no reference” (Ross 1969, p. 224). Ross sought to remedy this dilemma by reconstructing the concept of legal fictions. His reconstruction was by way of circumvention. He argued that, as to fictions, truth value is irrelevant. Certain fictions do assert openly untrue assumptions—e.g. fictions that mutate geography to accommodate suit within a certain jurisdiction or venue . Ross denied that such creative fictions suffer from illogic. Rather, he saw them as linguistic devices employing odd manners of speech wherein the falsity of their pronouncements do not matter. Other fictions, those more theoretical in nature (e.g. that courts do not legislate) , Ross characterized as “posed,” not asserted propositions, thereby also making their truth value irrelevant (Ibid., p. 229). Such theoretical fictions are best understood, he argued, as analogous to myths, the stuff of legends and ideals that function independently of truth value.

Ross, I argue, was correct in seeing that the concept of legal fictions needs reconstruction. And he was right to identify the traditional treatment of fictions as consciously false assumptions as the reason why they have for so long confounded and troubled legal theory. Yet he was incorrect in maintaining that truth and falsity are irrelevant. Truth value matters critically in law. To suggest that legal fictions render truth irrelevant provides fodder to a Bentham-like fury against all jural fiction-making as a renegade activity. The way truth matters in the context of legal fictions, however, is very different than the traditional debasement of every legal fiction as a consciously false assumption. That standard approach to fictions rests on a set of implicit assumptions about the nature of reality and truth. It assumes there is a reality external to law about which there are knowable, objective truths—‘facts of reality’—against which a legal fiction can be measured or compared. The comparison always shows a mismatch, a logical inconsistency between the fiction and some known (or supposed as known) factual content found in reality. Further, that extra-legal reality is treated as privileged. That is, when a logical inconsistency appears between a legal fiction and a ‘fact of reality’, the fiction must give way—the fact is appraised as true, while the fiction is devalued as false.

I want to question these assumptions about truth and reality. Is there a realm of objectively knowable reality? If so, why is it privileged, in terms of epistemic truth, over the legal realm, such that its factual truths provide the rule and measure for exposing legal fictions as falsehoods? These assumptions, which metaphysically undergird the traditional approach to legal fictions, at the very least call for justification. For perhaps it is the case, as Alain Locke once observed, that all of our cognitive processes are value-laden, such that even “‘pure’ thought and ‘absolute’ truth” are “fictitious” (Locke 1989, p. 115) . Perhaps even what we take and formally regard as “‘fact’… may turn out to be only a methodologically convenient ‘fiction’” (Ibid., p. 119). To give consideration to such possibilities, and perhaps thereby gain reason to question the traditional conception of legal fictions, requires a foray into the pragmatic meaning of truth .

Pragmatism disavows belief in absolute truths . Rather truth, pragmatically considered, is an attribute of belief . It marks a relation between idea and object. We live in a phenomenological world of sensible experience. There we encounter, in a primordial sense, what William James called the “perceptual flux” of concrete existent particulars (James 1911, p. 49). This flux of immediate, unfiltered present perception—of “plain unqualified actuality, a simple that, as yet undifferentiated into thing and thought” (James 1912, p. 74)—is punctuated with unity and continuous percepts, though characterized largely by chaos and discontinuity. Through reflection and thought we sift through the chaos of experience, separating ‘real’ objects (those from which consequences follow—e.g. those fires that burn sticks) from the fanciful (the inconsequential—mental fires that ignite no sticks), and identifying a core of individually consistent experiences that we share in common with each other.

Consequences, consistency , and commonality thus provide the basis for differentiating and naming ‘things’ out of the flux, for postulating relations that connect and separate them, and for constructing more or less orderly world-structures out of the original chaos of raw experience . Through the collective of cognitive processes that Hilary Putnam called “our criteria of rational acceptability,” we evaluate consequences, mark off points of consistency and commonality, and thereby “build up a theoretical picture of the ‘empirical’ world” (Putnam 1981, p. 134). That picture—reality, as we conceive it, is largely a product of our own creation. In Quine’s terms, it depicts a “man-made fabric” (Quine 1953, pp. 20, 42) . James put it more emphatically: the form and order we package under the name ‘reality’ is “flagrantly man-made” (James 1907, p. 119), no more than “an accumulation of our own intellectual inventions” (James 1909a, p. 209).

Not only is the world of raw experience without inherent form or order, it is also devoid of value. That which we perceive in the primordial flux is neither good nor bad, true nor false. The facts we perceive there merely are. Only through active cognitive processing of perceptual experiences , followed by inferences of rational acceptability and the crafting of general rules and concepts do the data of immediate experience come to possess any value. Rational reflection and conceptual thinking, that is, allow us to not only sort through the helter skelter of the phenomenal world, but to give meaning and value to the inherently undifferentiated and nameless.

Foremost among the values we assign to those objects, relations, and general concepts that we extract from the experiential realm is truth value . For rational construction of belief-sets of coherent, consistent ‘truths’ is a practical activity of preeminent value. Our everyday excursions into the external world expose us to objects not of our making, so-called ‘laws of nature’ that we cannot elude, and social situations of inscrutable complexity and dubious benefit. Possessing ideas that reliably distinguish the useful from the baleful, and that foretell which to expect is of great practical importance. Developing a stockpile of coherent, consistent truths, a meaningful conceptual structure for encasing ‘reality’ as we conceive it is fundamental to attaining a degree of control over the sometimes comforting, yet often menacing environment . ‘Truth’, quite literally, is thus an incredibly useful possession. As James put it, true ideas have “cash-value;” they are “profitable to our lives” (James 1907, pp. 32, 41, 42). Still, as Dewey emphasized, “truth is valuable not per se, but because, when given, it leads to desirable consequences” (Dewey 1916, p. 318). That is, truth is valuable only in relation to us. We value it because it helps us secure safe passage through life’s practical struggles. True ideas are just those ideas that “work satisfactorily” in leading us gainfully from trouble and uncertainty to beneficial outcomes, thereby providing “that specific truth-satisfaction , compared with which all other satisfactions are the hollowest humbug” (James 1907, p. 120, 1909a, p. 271).

Truth accordingly is ‘practical’ insofar as how we perceive the outside world, take it in, classify, order, and reorder it, depends upon the problems, interests, and purposes we have in mind. Truth ‘satisfies’ to the degree it works toward meeting those purposes and interests. As James famously put it: “‘The true,’ to put it very briefly, is only the expedient in the way of our thinking” (James 1907, p. 106). We are neither indifferent nor disinterested, nor even fully objective, when it comes to truth. We search for truth, undertake rational, thoughtful inquiry for the most part to resolve questions that bear practically upon our lives and future conduct. “If we had no desires and no purposes,” Dewey reasoned, “then … one state of things would be as good as any other” (Dewey 1929, p. 39). In Schiller’s words, the truth of a proposition depends on its “consequences to someone engaged on a real problem for some purpose” (Schiller 1903, p. 59). James agreed: “Human motives sharpen all our questions, human satisfactions lurk in all our answers, all our formulas have a human twist” (James 1907, p. 117). We never seek truth with spectator-like indifference. Rather, “we carve out everything, just as we carve out constellations, to suit our human purposes” (Ibid., p. 122).

Nonetheless, though the pursuit of truth is a practical activity driven by our distinctly human purposes and interests, pragmatism demands fidelity to the primal ‘facts’ that we experientially encounter. As Quine put it, our systems of belief “must be kept squared with experience” (Quine 1953, p. 45) . The belief-convictions, conceptions of reality, and truths we fashion must originate in and remain steadfast to what we assume to be a reality independent of us. The ‘satisfaction’ that accompanies truth directly grows out of that assumption of a supposed independent reality. For truth-satisfaction begins in the intellectual comfort we take in salutary, harmonious interaction with the phenomenal data of experiential life. Propositions only work toward meeting our purposes and interests when they fit together in coherent, efficacious, and logically consistent configurations that help us pick our way through the brambles of practical life. The satisfaction truth provides thus depends both on how coherently our ideas fit together and how harmoniously they relate to the supposed reality. More than anything, consistency among our beliefs gives satisfaction. As James expressed it: “Above all we find consistency satisfactory, consistency between the present idea and the entire rest of our mental equipment, including the whole order of our sensations, and that of our intuitions of likeness and difference, and our whole stock of previously acquired truths” (James 1909a, pp. 104–105).

Reflective inquiry in pursuit of truth is thus a practical and satisfying undertaking. It is never, however, a finished process. We delude ourselves to think we have attained truth absolute—fixed, static, and certain for all time. For reality is continually under construction. “What really exists,” James wrote, “is not things made but things in the making” (James 1909b, p. 263). The experiential world is literally a flux, an objective environment of ready change and fluctuation. Since all we experience is unstable and in a process of change, “no point of view can ever be the last one. Every one is insufficient and off its balance, and responsible to later points of view than itself” (James 1909a, p. 221). The truths we posit about reality are thus, of necessity, provisional. They are working hypotheses ever subject to reconsideration, correction, and revision . The double influence of experience and inquiry ensures that truth grows, reality evolves. Experience allots us a continual flow of information—concrete facts, new and renewed, unforseen social circumstances, once unimaginable technologies —that must be digested and incorporated into the general stock of truths that populate reality as we know it. So too we encounter agitation in the conceptual realm. Through inquiry we rationally confront matters over which we harbor doubt. We frame new concepts and adjust, amend, and sometimes abandon the old to accommodate our perceptual experiences and attain more workable conceptual structures. Throughout, our stocks of previous truths undergo review and revision, all the time leading toward the practical end of attaining more refined, workable , and satisfying views of reality.

The provisional nature of truth does not mean, however, that we lightly discard hypotheses previously filed away in our storehouses of belief. We do not welcome change. Challenges to our stocks of previously accepted beliefs take several forms: encountering facts incompatible with them; meeting someone who disagrees with them; realizing through reflection a contradiction; or finding they no longer work to satisfy our intellectual desires. These challenges trigger inward trouble . From such trouble we seek escape using the only means possible—resistance, reconsideration, and, if unavoidable, rearrangement of our previous stock of preconceptions, ideas, and opinions. In this process of conceptual re-formulation, James rightly observed “we are all extreme conservatives” (James 1907, p. 35). Loyalty to the older truths is the first principle in this process; most often it wins out. So committed are we to our conceptual status quo that by far the most common approach to phenomena so novel that they demand serious modification of our previous beliefs “is to ignore them altogether, or to abuse those who bear witness for them” (Ibid.). When neither avoidance nor abuse is possible, rearrangement becomes necessary. We strive then to find or fashion a new idea that we can splice into our existing stock of beliefs with a minimum of disturbance. Conceptually we gear the new idea into a workable notion that reconciles satisfactorily the new truth and the old stock. The new idea becomes true, “makes itself true,” James insisted, “by the way it works; grafting itself then upon the ancient body of truth, which thus grows” (Ibid., p. 36). Throughout, the operative principle is minimum disturbance/maximum continuity. James writes:

[The] new idea … adopted as the true one … preserves the older stock of truths with a minimum of modification…. New truth is always a go-between, a smoother-over of transitions. It marries old opinion to new fact so as ever to show a minimum of jolt, a maximum of continuity. We hold a theory true just in proportion to its success in solving this ‘problem of maxima and minima.’ But success in solving this problem is eminently a matter of approximation. We say this theory solves it on the whole more satisfactorily than that theory; but that means more satisfactorily to ourselves. (Ibid., p. 35)

A new idea thus comes to be accepted as ‘true’ insofar as it satisfactorily assimilates fresh experience or refined thinking into the general stock of our previous beliefs. Throughout this process of truth-making, fidelity and the least possible disruption to the general stock remains the guiding principle. For we cling to our established truths with an unflagging proprietary interest. Yet we do not cling to them as isolated tokens in a disorganized conceptual space nor even as members of a single grand ‘reality’. Rather, the composites of truths, meanings, and concepts that comprise the realities we conceive inhabit systematic storehouses of belief . Everything we experience, every fact we encounter, every concept we inquire into, discuss, and deliberate comes to us situated contextually within some more or less systematic field or situation of ongoing conditions. Given that, as Dewey put it, “[f]ields and/or situations possess spatial and temporal togetherness of the existences and events which constitute them” (Dewey 2012, pp. 334–335), the truths we create are dependent upon and inseparable from the contextual field or system of their birth and application. Truth, that is, not only reflects a relation between idea and object, but a relation between idea and context —field, situation, system, surrounding. The truths we fashion from experience and reflection accordingly are “effective in just the degree in which [they have] been worked into a system—a comprehensive and orderly arrangement” (Dewey 1916, p. 54). Only such a systematic arrangement allows us to move freely and beneficially among the general stock of our truths as well as across our conceptual structures. While any single idea or concept is true insofar as belief in it ‘works satisfactorily