From SSRN H/T Legal Theory Blog, a really interesting article about legal fictions and why society accepts them. Here is the abstract:

The classic legal fiction is a curious artifice of legal reasoning. In a discipline primarily concerned with issues of fact and responsibility, the notion of a legal fiction should seem an anathema or, at the very least, an ill-suited means to promote a just result. However, the deployment of a patently false statement as a necessary component of a legal rule is a widely practiced and accepted mode of legal analysis. In rem forfeiture proceedings rest on the fiction that the inanimate object was bad. Attractive nuisance re-imagines the child trespasser as an invitee. A host of doctrines bearing the term “constructive” in their titles adopt an “as if” rationalization that deems something to have occurred despite the fact that it did not (e.g., constructive notice, constructive eviction, and constructive discharge).

Legal commentators writing in the diverse fields of law and literature, tax policy, and empirical legal studies have taken a renewed interest in legal fictions, including Fuller’s influential work from the 1930s. They have applied the label “legal fiction” to an eclectic group of legal rules, including slavery, the doctrine of discovery, the tax code, and empirically erroneous legal presumptions (i.e., discredited legal regimes, complex statutory schemes, and empirical legal errors). These newly identified legal fictions do not satisfy Fuller’s classic definition of a legal fiction because they are neither acknowledged to be false nor demonstrably false. The enduring conundrum presented by the classic legal fiction is that it retains its utility despite its falsity, similar to false statements used in science and mathematics in order to advance a proof or hypothesis.

Any discussion of fiction necessarily invokes a concept of reality against which the fiction can be measured. Thus, before we can speak intelligibly of fictions, we must first be able to identify truth. Does it make any sense to refer to slavery as a fiction when it was, in fact, a legal system that brutalized millions? Is the choice of a tax base “false” simply because it is statutorily prescribed? Certain legal rules, such as those governing eye witness testimony, explicitly incorporate statements of fact that are readily verifiable by reference to real world events. Slavery and the doctrine of discovery encompass abstract concepts, such as liberty, autonomy and sovereignty that are not provable in any conventional sense of the term. They stand as juristic truths independent from questions of empirical proof.

Fuller cautioned that a legal fiction becomes dangerous when it is believed for then the fiction can approximate a lie, but there is also danger when the force of its constitutive power is ignored. When this occurs, the label of fiction works a denial and removes from memory important lessons regarding the law and the fragility of the human experience

While in law school, the doctrine of legal fictions always perplexed me. The strongest legal fiction seems to be is Ex Parte Young. The Supreme Court with Young sidestepped the 11th amendment, and allowed a citizen to sue a state official for injunctive relief, even though the citizen could not sue the state itself. The entire 11th amendment jurisprudence never made sense to me from an originalist perspective, and I am somewhat sympathetic to Justice Souter’s position in Seminole Tribe and Alden v. Maine. But, having the ability to sue the state for injunctive relief is an essential element of federal litigation.

In the context of First Amendment rights, Professor Volokh wrote:

“The corporation-as-person is a valuable legal fiction, and it’s built on the same sort of metaphor we often use with regard to groups (e.g., “the Catholic Church teaches,” “the ACLU argues,” and the like).”

But, Volokh cautions lawyers not to fall into the trap of actually believing that our legal fictions and our metaphors are real.

I have been batting around a paper on legal fictions, though I haven’t made much progress beyond the title: “Legal Fictions. Why is it good to be false?

This article probably touches a lot of ground I was thinking about, but I’ll keep pondering this dilemma. Why do we accept legal fictions? If we suspend our disbelief, and accept the basic premises of the fiction, are the positive results worth it?

On a related note, perhaps one of the greatest legal fictions is our modern incorporation doctrine.  Even Professor Balkin in Abortion and Original Meaning concedes that incorporation through the due process clause doesn’t really make sense from a textual perspective. I am inclined to agree. I am currently developing this topic in an article co-authored with Ilya Shapiro, discussing incorporation through the privileges or immunities clause. More details shortly.

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