Abstract
The chapter purports to provide an example of realistic conceptual analysis and reconstruction concerning one of the most powerful and baffling tools of judicial reasoning: fiction. It moves from an analysis of a few theories of judicial fiction (by Kelsen, Ross, Gottlieb, Schauer, Del Mar), and uses it as the starting point for rational reconstruction. The explanatory claim is put forth according to which the technique of fiction, in those legal cultures that allow it, is typically resorted to in situations where judges (assume to) face an axiological, switchover, gap, and the “bad rule” cannot be set aside by means of ordinary interpretive techniques.
Quand doit-on recourir à la fiction en droit? Quand […] les catégories et les techniques juridiques reconnues, celles qui font partie de la réalité juridique admise, ne fournissent pas de solution acceptable au problème de droit que l’on doit résoudre
—C. Perelman (1974)
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- 1.
A previous version of this chapter was presented at the International Conference “Legal Fiction”, Maison Française d’Oxford & St. Hilda College, Oxford, March 11, 2015. I wish to thank all the participants for their questions and comments. I am particularly indebted to prof. William Twining and prof. Maksymilian Del Mar for a very fruitful, post-conference, discussion which allowed me to “think like a common lawyer”.
- 2.
- 3.
See, e.g., Fuller (1967).
- 4.
See Del Mar and Twining (2015).
- 5.
Kelsen (1919), § II.
- 6.
According to Vaihinger, a fiction is any claim that (a) is made to a cognitive purpose, (b) stands in contradiction (opposition) to reality in such a way that it can never become true, (c) is always provisional (i.e., likely to be abandoned as soon as a better tool of cognition is found), (d) is openly made (i.e., without any intention to deceive), and (e) is actually useful to the purpose (pragmatic justification). See Kelsen (1919), pp. 4–9; Frank (1949b), pp. 313–314; Del Mar (2015a), p. xii, xx.
- 7.
Kelsen (1919), pp. 12–13, italics added.
- 8.
Kelsen (1919), p. 15. Kelsen provides the following example: “If one wishes to subsume a certain case under a norm, which does not capture this case, then a fiction may seem expedient: to treat the case as if it fell under the legal norm. The law threatens a sanction for the damaging of a public telegraph, but leaves a similar damaging of a public telephone without threat of sanction […] then it is a fiction if the judge applies to someone who damages a public telephone a sanction, which the law had intended only for someone damaging a public telegraph, in that he uses the norm intended to protect the telegraph to protect the telephone; the judge here does not proceed as if the telegraph were a telephone, this is not what the judge claims and wants to claim, but he proceeds as if the law threatened the same sanction to a damaging of a telephone as it does to the damaging of a telegraph. The juridical fiction can only involve a fictitious legal claim, and not a fictitious actual [factual] claim”.
- 9.
Kelsen (1919), p. 15: “His [the judge’s] claim, which stands in opposition to the legal order and not to actual reality, is: the public telephone, too, must not be damaged. Claiming the validity of an—invalid—general norm is the means by which he reaches the correct judgement, at least the one intended by him. It is not the claim that a telephone is a telegraph”.
- 10.
Kelsen (1919), p. 16.
- 11.
Kelsen (1919), p. 14.
- 12.
Ross (1969), pp. 217–234.
- 13.
Ross (1969), p. 220.
- 14.
Ross (1969), p. 220: “The theoretical legal fiction is often conflated with the creative legal fiction, but differs from the latter despite a functional relationship between the two. We have already cited some cases of creative fictions: the “barbarian” being considered a Roman citizen and Bordeaux being supposedly located in Middlesex. Now, the use of such fictions can serve to sustain a further fiction, namely, that the courts do not create law”.
- 15.
Ross (1969), p. 220.
- 16.
Ross (1969), p. 222, 223, italics added. Several authors share a similar position, which, by the way, is roughly the same Kelsen upholds while dealing with “fictions in the application of law” (see Sect. 7.2.A above). According to P. Foriers, provided legal fictions are relevant for “the theory of the extension of the legal norm”, “judicial fiction”—“la fiction jurisprudentielle”—consists in a “operative process that makes the law to progress and is used by the judge when he desires to create an evidently inexact assimilation, but necessary to obtain a desired result” (Foriers 1974, p. 8, 23). According to R. Guastini, fiction is “a judicial technique that aims at innovating – without making it apparent – an existing norm, at present perceived as unjust or inadequate, so as to adapt it to the changed social conditions”; the technique employs consciously false statements in order to make possible subsuming “a fact under a norm that – according to common sense […] or […] the on-going interpretation – would not be applicable to that fact”; “The effect of the fiction would be to extend to” a certain category of subjects the same form of legal protection “so far reserved” to a different category of subjects; “Clearly, the technique of legal innovation, that goes under the name of “legal fiction”, does not differ, but perhaps for a nuance, from ordinary analogical application” (Guastini 1992, pp. 158–159). Finally, according to R. Gama, judicial fictions are “operations” by which “a judge extends the application of an existing rule to a situation of fact that cannot be subsumed under that rule, and in so doing he creates a new rule” (Del Mar 2015a, p. xxiii).
- 17.
Gottlieb (1968), pp. 43–44.
- 18.
Gottlieb (1968), p. 44.
- 19.
Gottlieb (1968), p. 44.
- 20.
Gottlieb (1968), p. 44.
- 21.
Schauer (2015), pp. 113–129.
- 22.
Schauer (2015), p. 114.
- 23.
Schauer (2015), p. 114, italics added.
- 24.
Schauer (2015), p. 115: “the re-description of the facts of some event in order to make those facts compatible with the rule while at the same time permitting what appears to be the right result [...] the re-description of an X (or the class of X’s) as a Y in order to avoid an embarrassing outcome”, italics added.
- 25.
- 26.
The judge will decide to consider the presence of an operative fact irrelevant, when she wants to retain the normative consequence that its presence would rule out. She will decide to consider an absent operative fact unnecessary, when she wants to retain the normative consequence that its absence would rule out.
- 27.
Del Mar (2015a), pp. xxii–xxiii.
- 28.
Del Mar (2015b), p. 224, italics added.
- 29.
A propositional account of fictions is detected, e.g., by Fuller (1967, italics added), 9: “To sum up the results of our discussions, and to attempt a definition of the fiction that will at least approximate current usage, we may say: 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”; it is maintained, e.g., by Tuzet (2011), pp. 541–542, and Tuzet (2015), p. 272, 274–275, where he characterizes a “justificatory fiction” as “a consciously false assumption but accepted in order to determine a good legal consequence” (italics added); Lind (2015), p. 100: “legal fictions” are “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 the law)” (italics added).
- 30.
See, e.g., Guastini (1992), quoted above at footnote 13.
- 31.
- 32.
- 33.
- 34.
- 35.
Gottlieb (1968), p. 44.
- 36.
- 37.
On defeasibility, see Chap. 10 below.
- 38.
On this point, see e.g. Searle (1974–1975), p. 65 ff.
- 39.
- 40.
I have reconstructed the opinion as resorting to an individual fictional premise. Judicial fictions, however, may also resort to general fictional premises. In such cases, judicial reasoning would contain a premise like, e.g., “If somebody steals something worth £ 10, he steals something worth up to 39 shillings”.
- 41.
The output of this way of proceeding could have been, for instance, a new rule R2* according to which “If a case arises out of facts that did not occur in the city of London and the facts do not concern people’s liberty rights, the court of King’s Bench shall not hear the case”.
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Chiassoni, P. (2019). Judicial Fictions. In: Interpretation without Truth. Law and Philosophy Library, vol 128. Springer, Cham. https://doi.org/10.1007/978-3-030-15590-2_8
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