Fictions

Fictions, or legal fictions, in law, the term used for false averments, the truth of which is not permitted to be called in question. English law as well as Roman law abounds in fictions. Sometimes they are merely the condensed expression of a rule of law,—e.g., the fiction of English law that husband and wife were one person, and the fiction of Roman law that the wife was the daughter of the husband. Sometimes they must be regarded as reasons invented in order to justify a rule of law according to an implied ethical standard. Of this sort seems to be the fiction or presumption that every one knows the law, which reconciles the rule that ignorance is no excuse for crime with the moral commonplace that it is unfair to punish a man for violating a law of whose existence he was unaware. Again, some fictions are deliberate falsehoods, adopted as true for the purpose of establishing a remedy not otherwise attainable. Of this sort are the numerous fictions of English law by which the different courts obtained jurisdiction in private business, removed inconvenient restrictions in the law relating to land, &c.

What to the scientific jurist is a stumbling-block is to the older writers on English law a beautiful device for reconciling the strict letter of the law with common sense and justice. Blackstone, in noticing the well-known fiction by which the court of king’s bench established its jurisdiction in common pleas (viz. that the defendant was in custody of the marshal of the court), says, “These fictions of law, though at first they may startle the student, he will find upon further consideration to be highly beneficial and useful; especially as this maxim is ever invariably observed, that no fiction shall extend to work an injury; its proper operation being to prevent a mischief or remedy an inconvenience that might result from the general rule of law. So true it is that in fictione juris semper subsistit aequitas.” Austin, on the other hand, while correctly assigning as the cause of many fictions the desire to combine the necessary reform with some show of respect for the abrogated law, makes the following harsh criticism as to others:—“Why the plain meanings which I have now stated should be obscured by the fictions to which I have just adverted I cannot conjecture. A wish on the part of the authors of the fictions to render the law as uncognoscible as may be is probably the cause which Mr Bentham would assign. I judge not, I confess, so uncharitably; I rather impute such fictions to the sheer imbecility (or, if you will, to the active and sportive fancies) of their grave and venerable authors, than to any deliberate design, good or evil.” Bentham, of course, saw in fictions the instrument by which the great object of his abhorrence, judiciary law, was produced. It was the means by which judges usurped the functions of legislators. “A fiction of law.” he says, “may be defined as a wilful falsehood, having for its object the stealing legislative powers by and for hands which could not or durst not openly claim it, and but for the delusion thus produced could not exercise it.” A partnership, he says, was formed between the kings and the judges against the interests of the people. “Monarchs found force, lawyers fraud; thus was the capital found” (Historical Preface to the second edition of the Fragment on Government).1

Sir H. Maine (Ancient Law) supplies the historical element which is always lacking in the explanations of Austin and Bentham. Fictions form one of the agencies by which, in progressive societies, positive law is brought into harmony with public opinion. The others are equity and statutes. Fictions in this sense include, not merely the obvious falsities of the English and Roman systems, but any assumption which conceals a change of law by retaining the old formula after the change has been made. It thus includes both the case law of the English and the Responsa Prudentum of the Romans. “At a particular stage of social progress they are invaluable expedients for overcoming the rigidity of law; and, indeed, without one of them, the fiction of adoption, which permits the family tie to be artificially created, it is difficult to understand how society would ever have escaped from its swaddling clothes, and taken its first steps towards civilization.”

The bolder remedial fictions of English law have been to a large extent removed by legislation, and one great obstacle to any reconstruction of the legal system has thus been partially removed. Where the real remedy stood in glaring contrast to the nominal rule, it has been openly ratified by statute. In ejectment cases the mysterious sham litigants have disappeared. The bond of entail can be broken without having recourse to the collusive proceedings of fine and recovery. Fictions have been almost entirely banished from the procedure of the courts. The action for damages on account of seduction, which is still nominally an action by the father for loss of his daughter’s services, is perhaps the only fictitious action now remaining.

Fictions which appear in the form of principles are not so easily dealt with by legislation. To expel them formally from the system would require the re-enactment of vast portions of law. A change in legal modes of speech and thought would be more effective. The legal mind instinctively seizes upon concrete aids to abstract reasoning. Many hard and revolting fictions must have begun their career as metaphors. In some cases the history of the change may still almost be traced. The conception that a man-of-war is a floating island, or that an ambassador’s house is beyond the territorial limits of the country in which he resides, was originally a figure of speech designed to set a rule of law in a striking light. It is then gravely accepted as true in fact, and other rules of law are deduced from it. Its beginning is to be compared with such phrases as “an Englishman’s house is his castle,” which have had no legal offshoots and still remain mere figures of speech.

Constitutional law is of course honeycombed with fictions. Here there is hardly ever anything like direct legislative change, and yet real change is incessant. The rules defining the sovereign power and fixing the authority of its various members are in most points the same as they were at the last revolution,—in many points they have been the same since the beginning of parliamentary government. But they have long ceased to be true in fact; and it would hardly be too much to say that the entire series of formal propositions called the constitution is merely a series of fictions. The legal attributes of the king, and even of the House of Lords, are fictions. If we could suppose that the effects of the Reform Acts had been brought about, not by legislation, but by the decisions of law courts and the practice of House of Commons committees—by such assumptions as that freeholder includes lease-holder and that ten means twenty—we should have in the legal constitution of the House of Commons the same kind of fictions that we find in the legal statement of the attributes of the crown and the House of Lords. Here, too, fictions have been largely resorted to for the purpose of supporting particular theories,—popular or monarchical,—and such have flourished even more vigorously than purely legal fictions.

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1 In the same essay Bentham notices the comparative rarity of fictions in Scots law. As to fiction in particular, compared with the work done by it in English law, the use made of it by the Scottish lawyers is next to nothing. No need have they had of any such clumsy instrument. They have two others “of their own making, by which things of the same sort have been done with much less trouble. Nobile officium gives them the creative power of legislation; this and the word desuetude together the annihilative.” And he notices aptly enough that, while the English lawyers declared that James II. had abdicated the throne (which everybody knew to be false), the Scottish lawyers boldly said he had forfeited it.

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