Fictional Discourse and the Law

Hans J. Lind

• Publisher: Routledge
• Year: 2020
• eBook ISBN: 9780429887611
• Edition: 1
• Topic: Law
• Subtopic: International Law
• Index: Law

Drawing on insights from literary theory and analytical philosophy, this book analyzes the intersection of law and literature from the distinct and unique perspective of fictional discourse.

Pursuing an empirical approach, and using examples that range from Victorian literature to the current judicial treatment of rap music, the volume challenges the prevailing fact–fiction dichotomy in legal theory and practice by providing a better understanding of the peculiarities of legal fictionality, while also contributing further material to fictional theory's endeavor to find a transdisciplinary valid criterion for a definition of fictional discourse. Following the basic presumptions of the early law-as-literature movement, past approaches have mainly focused on textuality and narrativity as the common denominators of law and literature, and have largely ignored the topic of fictionality. This volume provides a much needed analysis of this gap.

The book will be of interest to scholars of legal theory, jurisprudence and legal writing, along with literature scholars and students of literature and the humanities.

Part 1

From narrative to fiction in legal theory and practice

Chapter 1

Theorizing fictional discourse

Toward a reassessment of the fact–fiction dichotomy in legal theory and practice

Hans J. Lind

I. From narrative to fiction in legal theory and practice

II. The basis of the fact–fiction dichotomy

III. Truth and fiction reconsidered

IV. Fictional discourse and fictional theory

V. Speech act approaches to fictionality

VI. Mapping the conceptual network: Family resemblance, prototype theory and the problem of non-hierarchical taxonomies

I From narrative to fiction in legal theory and practice

At a recent workshop at London’s King’s College debating the future of the Law and Literature enterprise, where I was invited to present on translation approaches in legal hermeneutics, I was not surprised that, when the movement’s history was addressed, rhetorical criticism, hermeneutical criticism and narrative criticism of law were the most important phases of the endeavor recounted. It surely cannot be disputed that rhetoricity, textuality and narrativity were key criteria that served in reconciling literary criticism and law as disciplines, and there are certainly some other aspects to be added.¹ It was also generally agreed that there was still significant room for further exploration: law and the image, law and affect, law and media, and law and performance were some of the propositions, mirroring the suggestions of a recent volume on law and literature and its future perspectives.² I regret, however, that an issue dear to me was not mentioned: the question of fictionality within legal discourse. It is well known that there are some obstacles in approaching law from the perspective of its literariness, with literary theory itself – not without reason – having struggled to reach an agreement on the establishment of a sufficient criterion for literature,³ although, regarding legal literariness, some overlap with issues already comprehensively discussed certainly exists, as textuality and narrativity were long held to also be key constituents of literature. The question of fictionality, on the other hand, controversially debated as a criterion of literariness,⁴ seems a more straightforward one when it comes to legal fictionality. Indeed, in the history of legal theory and practice, a substantial number of authors have already addressed the issue. The discussion on legal fictionality, however, usually stays confined within the disciplinary borders, rarely reaching out to involve literary criticism, or the other proponent in nowadays’ debate on fictionality, analytic philosophy. Within its disciplinary confines, there furthermore has been an unfortunate tendency to see fictionality as an issue best eliminated.

It is especially the practice of the so-called “legal fictions”, dating back to Roman law, which has been subject to a harsh criticism throughout the ages. “[T]hat a son killed in battle is supposed to live forever for the benefit of his parents; and that […] captives, when freed from bondage, were held to have never been prisoners, and such as died in captivity were supposed to have died in their own country” are Blackstone’s examples of fictions already “adopted and encouraged in Roman law”.⁵ That “[f]ictions permeate archaic procedure” can be further demonstrated by a number of examples: a foreigner could sue under the fiction of citizenship, the purchaser of an insolvent estate could sue on a fiction that he was heir,⁶ and a fictitious sale could not only be used to substitute a will, but could also serve in the emancipation of a son in potestas, as well as “to enable a woman to get rid of a guardian”.⁷ And it is the practice of procedural fictions to which our present vocabulary stills owes the names of “John Doe” and “Richard Roe”.⁸

In his 1910 publication The Nature and Sources of the Law, John Gray does not fail to mention two “absurd” examples:

The most grotesque of these fictions was that by which, for the purpose of giving a remedy in England for a wrong done in the Mediterranean, it was alleged that the Island of Minorca was at London, in the parish of St. Mary Le Bow in the Ward of Cheap; and yet, perhaps, the palm must be given to that fiction of the United States Federal Courts that all the stockholders in a corporation are citizens of the State which incorporates it.⁹

“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, the ill-suited means to promote a just result”, a scholarly essay recently stated,¹⁰ mirroring Hans Kelsen’s 1919 dictum that “in the realm of science […] a fiction can be nothing but an impermissible, fully useless, and solely harmful lapse”.¹¹ In Jurisprudence, Roscoe Pound characterized legal fictions as rudiments of legal past, which were proper at the time, and should even be considered as “the first agency through which the traditional element of a legal system is enabled to grow”, but which shall be overcome in a mature system of law.¹² John Gray, while assuming that some types of fictions do serve a legitimate purpose,¹³ follows Henry Maine in the conviction that fictions can quickly exhaust their purpose: ¹⁴

Fictions are scaffolding, – useful, almost necessary, in construction, – but, after the building is erected, serving only to obscure it.¹⁵

While Ernst Zitelmann compares legal fictions to the veil of Isis, which was only required for those eyes not yet strong enough to gaze at the truth,¹⁶ in his 1865 treatise on law, Rudolf von Jhering characterized legal fictions as “white lies” and “crutches”¹⁷ that, at a certain stage of the evolution of law, need to be overcome:

Every fiction should serve the [legal] science as a reminder to rid itself from it, since with every fiction, it admits to an imperfect solution of a problem.¹⁸

Drawing on Bouvier’s understanding of legal fictionality as denial of “plain matters of fact”, a scholar in the 1910 Michigan Law Review explains:

In the age of fact, fancy is at a discount. Consequently legal fictions, which required the play of some fancy in their beginning, have fallen not only into disuse but also into disfavor.¹⁹

Similar attitudes are threaded throughout the history of the discipline, with Jeremy Bentham having arguably formulated the harshest criticism of the “pestilential breath of fiction”,²⁰ an “opiate”²¹ and “syphilis” which “runs in every vein, and carries into every part of the system” of English Law.²² It is not counterfactuality per se, but the stain of weakness and illegitimacy that Bentham denounces in this context:

A fiction of law may be defined a willful falsehood, having for its object the stealing legislative power by and for hands which could not, or durst not, openly claim it.²³

Within the long history of legal fictionality, Bentham’s harsh criticism belongs to the “newer” voices, however, since in Philippe de Renusson’s treatise on law, published in 1733, attacks on legal fictionality were already considered to be commonplace.²⁴

In light of the above criticism, it must be surprising that legal fictions nevertheless have been and still are ubiquitous, and the reason for this for sure is their well-proven expediency. Blackstone already noted that legal fictions, “though at first […] may startle the student”, will inevitably be found “highly beneficial and useful”,²⁵ Jhering listed legal fictions as effective “means of legal economy”,²⁶ and Kuntze even called them the “nourishment” that fueled the constantly growing “organism” of law.²⁷ For Henry Maine,²⁸ legal fictions were “invaluable expedients for overcoming the rigidity of law,” which do not only aim at securing that rules are “judicially administrable”, but furthermore ensure the “acceptability of a decision” within a general public.²⁹ Maine’s contemporary Oskar Bülow has also commented on legal fictions, now as a “psychological technique” that enhances the vividness of intellectual conception and facilitated the intellectual permeation of abstract messages,³⁰ and Lon Fuller later lists the function of “keeping the law persuasive”.³¹ But not only functionalist considerations seem to lie at the root of legal fictionality as a long institutionalized practice. Despite being a critic of contemporary legal fictionality, Jhering refers to legal fictions as “law’s rococo style”,³² and in 1840, a writer muses:

[I]t is always a matter of extreme delight and refreshment to turn to those exquisite fictions which both adorn and simplify our law – mingling utility with sweetness, and tending to the noblest end to which poetry can devote itself […].³³

The theoretical...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Acknowledgements
• List of contributors
• PART 1: From narrative to fiction in legal theory and practice
• PART 2: The ubiquity of fictional discourse in legal theory and practice
• PART 3: A matter of evidence? Fact and fiction in the courtroom
• PART 4: Fictional discourse as law’s mirror and cradle: Metafictional qualities of law in literature
• PART 5: Fictional discourse and the law: A theoretical perspective
• Index