Fuller on legal fictions

KENNETH CAMPBELL

F U L L E R O N L E G A L F I C T I O N S *

ABSTRACT. What are legal fictions? Professor Lon Fuller discussed the matter at some length. One interpretation of his answer is this: they are lies that are not intended to deceive. This solution fails, in the end, to be convinc- ing. But some remarks of Fuller provide the clue to another way of looking at the problem: fictions are means of changing the application of the law by relying on a tension between two classifications of fact.

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Legal fictions are not much discussed nowadays. At any rate, little has been written in recent years about their general nature. Yet fictions have not disappeared from the law. 1 It comes as no great surprise in reading a modern textbook or contemporary judgement to be told, for instance, that it is by a fiction that husband and wife are one person for certain purposes, that a boy under fourteen cannot commit rape, and that twenty-years user gives rise to a presumption of a now lost grant o f an easement. 2 Indeed, at least on this side o f the Atlantic, the creation o f fictions continues. 3

* I am grateful to Professor Paul Jackson and Dr. Joseph Raz for a number of helpful comments on a draft of this article. 1 Here and elsewhere in this article I use "fiction" to mean "legal fiction." 2 Respectively, Midland Bank Trust Co. Ltd. v. Green (No. 3) [1982] Ch. 529; G. Williams, A Textbook o f Criminal Law (London: Stevens, 1978) 1st edn., p. 196; G. C. Cheshire, and E. H. Burn, Modern Law of Real Proper- ty (London: Butterworths, 1982) 13th edn., pp. 516ff. 3 For example, Barnett v. French [1981] 1 W.L.R. 848, in which a Divisional Court of the Queen's Bench held that the Department of the Environment could replace its previous practice of naming for traffic offences committed by its employees an unfortunate official of the Department with that of naming one "John Doe, born about 1657."

Law and Philosophy 2 (1983) 339-370. 0167-5249/83]0023-0339 $03.20. © 1983 by D. Reidel Publishing Company.

340 Legal Fictions

This suggests that fictions are still deserving of our attention. My aim in this article is to accord them some of that attention by considering one of the major studies of the topic.

In 1930 the Illinois Law Review published the first of a series of three articles by Professor Lon Fuller. In 1967 these were collectively published as a book by Stanford University Press. 4 In a new preface the late Professor Fuller said, "Some word of explanation and apology is due from an author who becomes an accomplice in any such act of literary disinterment. ''5 This was too modest. No apology was due for republishing one of the most substantial discussions of fictions in English.

I doubt if anyone who has read Fuller on this topic can fail to have been impressed by at least two aspects of his account. First, the extremely wide range of his legal examples. Topics from con- tract law, tort, family law, probate, property, evidence, and many other areas are handled with complete assurance. Secondly, his knowledge of the continental literature of his period and of the preceding generation is of an order which one would expect nowadays to find in few Anglo-American writers on jurisprudence. In this respect Fuller belonged to the grand tradition of Austin, a tradition which easily encompassed the French and, more especially, the German writings of their times.

For all that, the book these articles became leaves much to be desired. Often potential objections are unconsidered, formulations loose, treatment fragmentary. It is difficult to detect an overall thesis. Like Fuller's more famous jurisprudential production, The Morality of Law, this book has to be treated as presenting not a full-blown theory, but a series of aper~us. Many of these do not bear examination. Some, however, do. In this article I shall expose some of the errors. But my main purpose is constructive. It is to build upon what I believe are some of Fuller's best thoughts and

4 Hereafter in this article all otherwise unidentified page references are to this book. s p. vii.

Kenneth Campbell 341

to show that these can provide the basis of a general theory of fictions.

Fuller sets himself to answer three different questions. (1) What are fictions? (2) Why do fictions arise? (3) Is the existence of fictions inevitable? Naturally the answer to any one of these questions may throw light on the others, and Fuller's discussion, rightly, does not attempt to keep them entirely separate. I shall follow his general tripartite division but I shall concentrate on the first question.

I have already given some specific examples of the kind of things that lawyers call "fictions. ''6 However, a word of warning is in order. My aim is to identify a useful conceptual notion that I take to lie at the heart of what lawyers are referring to when they refer to fictions. It is not my aim to provide a description of lawyers' linguistic practices. One result of this may well be that cases lawyers describe as fictions will, on this account, not be. This is no fault in the analysis if the reallocation derives from sharper conceptual boundaries.

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The most obvious starting point in attempting to understand Fuller's account of the nature of fictions is his definition, which is provided early in the book: "A fiction is either (1) a statement propounded with a complete or partial consciousness of its falsity, or (2) a false statement recognised as having utility. ' '7

The first surprising aspect of this definition is its disjunctive

6 For a description of individual fictions see, for example, J. Smith, 'Surviv- ing Fictions,' Yale Law Journal 27 (1918): 147-66, 317-30; J. W. Jones, Historical Introduction to the Theory of Law (Oxford: Oxford University Press, i940), Chap. 6; A. W. B. Simpson, An Introduction to the History of the Land Law (Oxford: Oxford University Press, 1961) passim; S. F. C. Mitsom, Historical Foundations of the Common Law (London: Butterworths, 1981) 2nd edn., passim. 7 p. 9.

342 Legal Fictions

form. It appears that something can be a fiction if it satisfies one or the other of two quite different criteria, and this, in turn, would seem to indicate that, in Fuller's view, there are two quite different meanings of "fiction." He himself says that, "This definition seems on the face of things to embrace two entirely discordant elements"; but he hints that there is a unifying feature.8 This feature is that the utility of fictions referred to in limb (2) is dependent on consciousness, or at least half-consciousness, of the falsity referred to in limb (1). Before considering the implications of this gloss let us consider each limb.

Limb (1) suffers from two defects. In the first place, the false statement cannot be just any false statement. At the very least it must arise in a legal context, the most obvious of such contexts being proceedings in a court of law. Perhaps, however, this should be taken as implicit. The most important aspect of this limb of the definition is that it appears to entail two propositions: (a) fictions are false statements (this distinguishes them from the truth), (b) fictions are known to be false (this distinguishes them from mere errors). Whose consciousness is involved here ? Is it that of the person relying on the fiction or that of the court allowing it? Taken either way the second inadequacy of the definition is patent. It fails to distinguish pleading on a fiction from leading false evidence where either the party or the court knows or suspects that the evidence is false. In short, either it fails to distinguish fiction from perjury or from rejected testimony. So limb (1) does not state a sufficient condition for something to be a fiction.

Does it state a necessary condition? This is more difficult, again partly because it is not clear whether Fuller is referring to consciousness of falsity on the part of the person relying on the fiction or on the part of the court. Let me take it the first way to begin with. Many, probably most, fictions arise within the context of evidence. A party to the cause may plead that a certain event occured or state of affairs obtained, call that which is so pleaded

8p . 9.


"p." May he not rely on the fiction that p , even if it was the case that p and he knew that it was? It may, at first, seem far f rom obvious why any party should wish to rely on a fiction when he can rely on fact. There may, however, be good reasons for doing so. If there is such a fiction then, in general, the court will not apply the usual criteria for proof o f p . So the party relying on the fiction will be absolved f rom the standard requirements of evidence. This could clearly be an attractive possibility f rom his point of view even in cases in which p is true and admits of proof. There will be no need to call witnesses, produce documents , and so on.

On Fuller's definition, taken as referring to the consciousness of the party, this type of case could not be an instance of relying on a fiction, because, by hypothesis, it is the case that p, and the party knows it. Taken as referring to consciousness on the part o f the court, the definit ion as a necessary condit ion is equally open to objection. A court can allow reliance on a fiction even when it thinks that p probably is present, and, indeed, it will of ten be obliged by past authori ty to do so.

Even within the general context of theories of the type Fuller is propounding his test selects the wrong criterion. Necessarily, it makes the test of pleading on, or allowing, a fiction that o f whether p actually is present, not that o f availing oneself of, or allowing, a rule that dictates a finding of p , whether p is present or not. When Fuller later comes to discuss legal presumptions this difficulty comes to the surface. Clearly a party to a case may seek to rely on an irrebuttable legal presumption that p even when p is the case. 9 Fuller wishes to hold that there is a reliance on a presumption in these circumstances, and he believes that at least irrebuttable presumptions are fictions. 1° His own definit ion should lead h im to conclude that this cannot be so. He sees, however, a way to avoid that result. True, he admits, p is the case. But the court in relying on a conclusive presumption that p is ignoring not

9 p. 41. lo p. 41.

344 Legal Fictions

the falsity of p, but the falsity of the inference "whenever q, then conclusive proof that p ." In other words, the falsity is not that of the fact which is relied upon, but of the inference by which it is arrived at.

Fuller, however, fails to see that exactly the same argument can be used with regard to other fictions. He takes the form of the ordinary fiction to be "p obtains" (when it does not). Now it may be true that there are some rules of legal fiction that assert what a court is hold in every case, whether the matter is pleaded or not. I shall say more about such rules later. But most central cases of fictions involve rules in the form of a condition relating to proof. Take one of the classic English legal fictions, quominus, according to which a man could bring a case of debt, owed by a third party, which would otherwise have been outside the jurisdiction of the Exchequer of Pleas before that court by pleading that by virtue of the debt being unpaid he was unable to satisfy the King's taxes and his case was therefore one of the King's causes. In order for it to be found as a fact by the court that he could not for this reason pay his taxes, it was sufficient that he said it was. The rule in such a case was of the form: " I fA asserts that p, then io. ''. This is of the same logical form as Fuller's example about irrebuttable presumptions, and just as invalid as a general inference.

Fuller's view of legal presumptions is to be preferred to his formal definition of fictions. The general line of the definition is less open to obvious objections if one takes the view that a party relies on a fiction not by virtue of stating that which is false but by virtue of relying on a rule that the court knows or suspects is invalid as a rule. 11 These rules will be in conditional form and mostly relate to evidence and they are invalid by reason of asserting an inference that is invalid.

Limb (1) of the definition cannot, therefore, be right. Let us turn to limb (2): "a false statement recognised as having utility." Recognised by whom as having utility for whom? If the answer is,.

il There are, as I shall show in due course, serious objections to this view also.


recognised by the party relying on it as having utility for him, then once again this fails to distinguish afiction from any opportunistic lie. If it means recognised by the court as having utility for the person relying on it, then it does not distinguish it from the case where the court appreciates the opportunism of the lie. Does it mean recognised by the court as having general social utility? But surely there can be fictions courts are bound by authority to continue to recognise even though they have outgrown whatever social utility they may once have possessed? So limb (2) of the definition meets an even swifter death than limb (1).

Fuller's definition must, therefore, be rejected, but some interesting points have emerged from finding its weaknesses. The most important of these is the idea that fictions involve rules which are, in some sense, false or invalid.

This brings us to Fuller's gloss on the definition. He gave no reason for supposing that there are two meanings of "fiction," and it should be rejected as prima facie implausible. After all, the presumption is always in favour of unity, not diversity, of meaning. Fuller gives no arguments to attempt to rebut the presumption, and seems himself to favour the notion of a unifying concept through the feature of a link between the utility of the fiction and the recognition of its falsity.

It is unclear from Fuller's discussion at this point whether he thought that the utility arose from the falsity itself or from conciousness of the falsity, or both. Fictions, he warns us, which are no longer realised to be such become dangerous and lose their utility. 12 Since Fuller believes that they are nevertheless fictions this seems to suggest that consciousness of their character as fictions (and hence, one assumes, of the falsity that entails) is irrelevant to their being fictions. But if fictions not realised to be such lose their utility, how can fictions have as a defining characteristic their utility, and how would this bind together the two limbs of the definition?

12 pp. 9-10.

346 Legal Fictions

These questions admit of no obvious answer and one is forced at this point to make a pretty radical reconstruction of Fuller; let us, within the tradition of this type of theory, say that fictions involve, in a way yet to be fully explained, a falsity. That distinguishes them from the truth. And that they also involve consciousness of that falsity. That distinguishes them from mere error.

The main problem for Fuller's account on this reconstruction is that it fails to distinguish fictions from lies. That, as we have seen, cannot be done through the utility, or even consciousness of the utility, of the falsity. However, though not in the formal definition, Fuller does propose another answer to this. Elsewhere, he tells us that "a fiction is distinguished from a lie by the fact that it is not intended to deceive." 13 He means by this that, though it may be true in some cases that the courts intended to deceive the public into thinking that they had not changed the law when, by means of a fiction, they had done so, nevertheless they never intended, by allowing a fiction, to deceive anyone into thinking that that which was fictitiously pleaded, and accepted by the court, was in fact true. 14 So, a reasonable reconstruction of Fuller's view building on its best elements would be this: fictions are falsities contained in rules permitted by courts, known or suspected by the courts to be falsities, but not intended to deceive. Before I consider the difficulties of this account I shall say something about Fuller's explanation of the motives for fictions.

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When we talk of a person's motives for performing a certain action, we most often have in mind his conscious reasons. That is, those facts his belief in the obtaining of which lead him to conclude that he should perform that action. Reference to motivations, however, tends to be rather more ambiguous between conscious reasons and

~a p. 6. 14 pp. 6 - 7 .


the unconscious desires and beliefs that lead to performance of that action.

Fuller's discussion of the motives for legal fictions betrays the ambiguity that we more usually associate with the idea of motivations. Part of his discussion is in terms of fictions as a specific legal technique designed, principally by the courts, to achieve certain ends. Part of it, however, is in psychologistic terms, asserting generalisations about unconscious motivat ion and about inherent constraints on intellectual capacity. In this present discussion I shall concentrate on fictions as a specific legal technique. Whatever may be the psychological explanation of why an individual judge planted the seed of a fiction, it is plausible to believe that its cultivation or inhibit ion by subsequent courts depends at least in large measure on its perceived utility or otherwise. Insofar, too, as the recognition of a fiction has its effect upon legal rules that effect can be stated as a formal result even in those cases, if any, in which it has been achieved unwittingly.

Fuller tells us that " the purpose o f any fiction is to reconcile a specific legal result with some premise or postulate. ''15 This is true, but does not in itself take us very far. With regard to any rule o f the form: "if p , then c," a finding of some instance of p is necessary to reconcile the conclusion c with the premise. More promising is the s ta tement that "Generally a fiction is in tended to escape the consequences of an existing, specific rule of law." 16 No doubt this is too narrow. Fictions can be used to attract, as well as to avoid, the consequences of existing rules; but at least this description seems to point in a constructive direction. 17 The problem is that it fails to separate fictions f rom other means o f achieving the same end, the most impor tant of such means being the technique of distinguishing the instant case f rom the precedent

is p. 51. 16 p. 53.

17 It might be argued that to attract the consequences of a rule is simply to avoid the consequences of the existing opposite rule. But this is to overlook gaps in the law.

348 Legal Fictions

laying down the rule. 18 The nearest that Fuller comes to explain- ing the distinctive character o f fictions is in his discussion of the relationship between fiction, presumption, and estoppel. 19 The following is my version of that discussion.

Imagine that we have a rule o f the form

(1)

Where this means that c is a legal consequence which follows if both p and q are present. It is now desired to have the legal result c also in the case where q is absent but r is present, so that the effect o f the rule is:

(2) (p & (q V r)) -~ c.

Where "v" means "or" , i n t h e sense o f either or both. How, asks Fuller, can this be done while preserving the form of

(1)? One answer, the answer o f the legal fiction, is, Fuller tells us, that, when p and r are present, the court allows an allegation that q is present, even though it is known by the court to be absent. 2°

Fuller's account here is defective in two ways. First, it is not necessary that the court should know that q is absent. It is sufficient, even on this general type o f view, that it knows that q may be absent, or even just that it may not be provable. Secondly, it is too weak to say that the court allows the allegation that q is present. Exceptional cases excepted, the mere allegation of any fact, if relevant, is always permit ted. The impor tant point over- looked by Fuller is that, in these cases, the court takes the mere allegation o f q as conclusive p roo f o f q. This entails, first, that the party asserting q is not required to lead any evidence to prove it, and, secondly, the party wishing to deny q is not allowed to lead any evidence to disprove it.

is For the notion of distinguishing being used here, according to which rules are changed, not just avoided, see J. Raz, 'Law and Value in Adjudication', in The Authority of Law (Oxford: Oxford University Press, 1979), pp. 180ff. 19 pp. 72ff. 20 p. 73.


Let me expand the point somewhat . The type of fiction just described is only one type o f fiction, but it is an impor tan t one. It has two main features, the first of which is general to all fictions. First, the court wishes to change the range of application of the existing rule, but to preserve both its form and the meaning of the terms used in it. Secondly, the court achieves this result by the elegantly simple me thod of changing the rules o f evidence relative to the antecedent in the rule, so that the antecedent may be proved by methods which the court itself would standardly regard as inadequate to prove a fact of that type.

Later I shall a t tempt to broaden this to deal with other types of fiction, but two points may be made now. First, this explana- t ion of this type of fiction is compatible with any of the motivations ment ioned by Fuller, as well as with other explanations. A desire to deceive the public into thinking that the law is not being changed, the judge's own emotional or intellectual conser- vatism, a wish based on (believed) convenience not to alter the existing form; all these are possible. 21 So, too, is that, for instance, of the judge believing, whether rightly or wrongly, that he has no power to alter the substantive law, but may alter its effects by changing the adjective law of evidence and procedure. No doubt there are many possible reasons to explain why judges resort to fictions rather than to other methods for changing the application of the law, though it is c o m m o n to them all that the judge either is, or takes himself to be, subject to constraints that inhibit resort to changing the law by more overt means. 22 The second point is that

21 pp. 57ff . 22 Another explanation mentioned by Fuller in his 1967 Introduction (pp. x-xii) is less plausible. This explanation is in terms of a feature inherent in the law. According to this, fictions arise in "those subjects where the urge towards systematic structure is strong and insistent" (p. xi). Fuller says that it is characteristic of the law that it has a commitment to "comprehensive system." He seems to mean by the second of these features that judges must decide cases even where the legal rules are uncertain, and by the first that, partly as a consequence of this, judges must clarify uncertain rules. However, the standard methods of definitively narrowing or extending rules so as either

350 Legal Fictions

such an explanation is not to be faulted by the fact, if it is a fact, that during what one takes to be the main period of the growth of fictions, no clear-out distinction between substantive law and the law of evidence was perceived. An explanation is not wrong by virtue of being in terms o f distinctions that we acknowledge but which other generations did not unless it erroneously attributes knowledge o f those distinctions. This explanation does not commit that error. It says only that this was its effect by our conceptions.

However, it has to be said that even this explanation of fictions is not entirely satisfactory. Throughout Fuller's own account there is a sense o f unease. This lurking tension arises from his failure to tackle some major problems about fictions; a failure which in turn arises from not having clearly articulated them as problems. These are, in essence, difficulties about the three answers to the three stages o f the problem. How are fictions distinguished from (a) the truth, (b) errors, (c) lies? To clarify this unease and at tempt to resolve it I shall deal with each question and answer in turn.

4. HOW ARE FICTIONS DISTINGUISHED FROM THE TRUTH?

The difficulties here are exhibited by a paradox and an uncertainty. Each are aspects o f the same problem.

(A) The Paradox

"A statement must be false before it can be a fiction. ''23 This is one o f Fuller's major tenets, and we have, I believe, an intuitive sense that some version o f this thesis must be correct. After a11, the plain truth is not fiction. Yet this at one yields a paradox.

not to cover or to cover the instant cases are those of distinguishing and of extending by analogy, respectively. Even if it is true that the features mentioned by Fuller are preconditions of the existence of fictions, what makes resort to them, rather than to other techniques, necessary is the existence, or the belief in the existence, of constraints which inhibit free resort to the other techniques. za p. l l .

Kenneth Cam/) bell 3 51

Suppose the recognised fiction is contained in the rule:

(3) I fA asserts that / ) , then (conclusively)p.

This is a rule of law. Rules have no t ruth value, so the rule itself cannot be false. Moreover, the assertion that this is a rule of the legal system in question is, by hypothesis, a true statement. So there appears, on the other hand, to be no falsity involved.

This paradox is inherent in much of Fuller's discussion. He asks whether there can be fictitious legal relations, rights and duties. 24 His answer is less than clear: "it is generally more difficult to say that a given s ta tement is false when it relates purely to legal concepts than when it relates to extra-legal fact. Consequently, it is not common that a s ta tement concerning legal relations is regarded as a fiction." 25 Why is it generally more difficult to say that a purely legal s ta tement is false ? 26 Fuller's answer is that legal concepts are inherently more uncertain and more flexible than nonlegal concepts.

If Fuller means by this that it is more difficult to say of purely legal propositions that they are either true or false then this is hardly plausible. In the first place, the truth-value of many purely legal statements does not even raise the problem of the meaning of legal concepts. "A person is guilty of theft if he dishonestly appropriates property belonging to another with the in tent ion of permanent ly depriving the other of it . . . . " Is this a true or false proposit ion of English law? Without any doubt it is a true one, since it is the definit ion of theft . 27 Whatever doubts commenta- tors may have had about the legal meaning of "dishonest ly," "appropriate ," "proper ty , " and so on, the status o f this s ta tement as a true proposit ion of English law is beyond question. The truth- value of insti tutional normative propositions if in canonic formula-

24 p. 27. 2s p. 28. 26 I am taking a purely legal statement to be one whose truth or falsity is determined solely by the existence or nonexistence of a rule of law. 27 Theft Act 1968, s.1 (1).

3 5 2 Legal Fic tio ns

tion is independent of the meaning of their terms. Secondly, at the very least, extensive empirical proof would be required to show that it is true of any random selection of standard legal terms, such as "offence," "divorce," "lease," "floating charge" and "disposition" that they are more uncertain in meaning than any random selection of nonlegal terms. Indeed it is difficult to believe that such a claim could even begin to be established, given the variety of indefinite extent of both legal and nonlegal terms, without a transcendental argument about the nature of the categories of the two types.

Fuller points to such doubts as whether an unenforceable legal right is a legal right at all, or whether the type of right that a possessor of a trade secret has in his process is a property right or a contractual one. 28 To be sure, the courts are sometimes confronted with such problems of classification. However, they are not more, and, one would have supposed, much less, frequent than such problems as whether a skateboard is a vehicle, a metal comb an offensive weapon, or sexual advances in a public lavatory insulting behaviour. The problems of classification presented by these last cases are often difficult, not just factually, but conceptually. To what extent, for instance, is this last example necessarily purposive? Can one insult if one does not intend to insult? This problem has nothing to do with legal concepts. At the very least, there are just as many problems in the interpretation of rules raised by nonlegal, as by legal, concepts. 29

Was Fuller, however, attempting to make a more sophisticated point, namely, that, though it may be correct that there is no categorial difference between legal and nonlegal statements as regards telling their truth, there is such a difference when it comes to telling their falsity? It is, of course, true that the law generally lays down positive propositions. It says, usually, that such-and-

2s p. 28. 29 Many problems of interpretation raise the additional difficulty of whether the concept is a specialised legal one or a nonlegal one.


such a right exists, not that it does not exist. That such-and-such is an offence; not that is not Offence.

But this creates only an asymmetry between positive and negative legal propositions, not between true and false ones. Take any proposition of law for whose truth there is a legal source and there is a corresponding false proposition, namely the negation of that proposition.

For Fuller's point, interpreted this way, to carry weight it would have to be in terms of a contrast as to provability between negative legal propositions (e.g., there is no tortious remedy for having been caused grief not amounting to mental injury) and negative nonlegal propositions (e.g. there are no tigers in Africa). Fuller has no argument for this. His only argument is the one from vagueness already noted. The argument from vagueness can, however, have no greater plausibility in the case of negative propositions than in that of positive ones. And since it has no plausibility in the latter case, neither does it in the former.

Even if more sophisticated arguments could be adduced to support this last position it has surely to be allowed that at least some positive pure propositions of law admit of being judged false, and that some negative pure propositions of law admit of being judged true. And so the paradox remains. If the law says that a person does have such a right or duty how could it be the case that he could have such a right or duty as a legal fiction, since, on Fuller's account, this entails that he does not have it? Fuller himself at one point seems to agree that this is impossible. "A legal right reaches objectivity through court action; we have no other test of its 'reality'. If it meets this test, it is a real right - whatever may be the protestations of the agency enforcing it. ''3°

From this one might suppose that Fuller believes that pure propositions of law never involve fictions. However, Fuller qualifies this. "A legal relation, accurately described and actually enforced, cannot, with utility, be regarded as a fiction. But a description of

30 p. 29.

354 Legal Fictions

an existing and enforced legal relation can be so inadequate and misleading as to deserve the term fiction. ''31

Fuller gives some examples. (1) "Equity regards that as done which ought to be done." (2) "The law often regards money as land and land as money ." (3) "Husband and wife are one. ''32 Why are these statements inadequate and misleading and, hence, fictions? Fuller's discussion is brief and obscure. His main charge seems to be that they oversimplify. No doubt this is true at least of (1) and (3). Equity does not adhere to maxim (1) in all cases, and husband and wife are not one for all legal purposes. However, this alone cannot lead us to say that these statements are statements of fictions. Overgeneralisations may be false or misleading but they are not on that ground alone fictitious. If they were, the statement "Everyone has the right to vote in parliamentary elections" would be an assertion of a fiction since the rule is in fact subject to some exceptions. And clearly it is not a statement of a fiction. So our paradox remains that, at one level, fictions seem to involve no falsities. Whatever is laid down in a valid legal rule must be (legally) true.

At one point Fuller starts on what seems to be a more promising line. These last examples were of legal propositions in the semantic fo rm:

(4) q is p.

But consider what happens if the law says

(5) q shall be treated as if it were p.

Fuller remarks that in cases of type (5) our initial inclination is to say that there can be no fiction since the court has stated nothing contrary to the fact. 33 This, if true, suggests that there might be something worth exploring in the difference between (4) and (5). Fuller, however, promptly denies this. "When we are

a l p . 33. Emphasis in the original. a2 pp. 33-35. 33 p. 37.


dealing with statements that are known to be false, it is a matter of indifference whether the author adopts a grammatical construction that concedes this falsity, or makes his statement in the form of a statement of fact." 34

It is difficult to know what to make of this. What would be a statement whose grammatical construction concedes its own falsity? Not the inclusion of negation. That just makes it a negative statement. Not a counterfactual conditional ("If I were rich I should be happy"), which is just true or false depending on the relation between antecedent and consequent. It is not a statement made ironically, for then its falsity would be revealed by its delivery or context, not by its grammatical construction. There appear to be no candidates for this class other than patently self-contradictory propositions. But there is nothing self-contradictory about the general form "q shall be treated as if it were p". Arguably, it says only that q is to be treated in the same way as p.

Fuller was, I believe, wrong to think that there is nothing to be revealed by considering the differences between (4) and (5). I shall take this point up later.

(B) The Uncertainty "When a surety pays the debt of the principal, equity considers the debt 'unpaid' in order that the surety may be subrogated to the rights of the creditor. Is this a fiction? Is it a fiction to say, in cases under the 'family automobile doctrine' that the son, or other member of the family, is the 'agent' of the owner of the car?"35

Fuller does not set out to answer these questions individually, and he is surely right not to attempt to do so. Insofar as a theory of the nature of fictions explains them, it does so only at the level of principle. Often answers will be difficult in individual cases because of the complexity of the legal doctrines involved. Yet it is hard to avoid the feeling that some perplexing cases would still remain perplexing even if one had intimate knowledge of the

34 p. 37. as p. 31. Footnote omitted. Fuller gives several other examples.

356 Legal Fictions

relevant law. The role of any theory is not to resolve all the uncertainties of classification but to explain why they exist.

Fuller does, however, deal with one specific example. We suppose that X gives Y actual authority to sell his horse, but not for less than $100, that he also tells Z that Y has authority to sell, but does not mention the condition, and that Y sells it to Z for $50. X is bound by Y's act on the well-known doctrine of apparent authority. Is the authority of Y a fiction? Fuller's answer is that if the law pretends that X did not state the condition as to price then there is a fiction. 36 But if all that is meant is that Y has in the circumstances legal power to bind X then there is no fiction.

This is one of the major insights of the book. Unfortunately, Fuller treats this just as an incidental characteristic of one type of fiction. It is, however, a key to understanding all legal fictions. It dissolves the paradox and explains the uncertainty. Any assertion is an assertion of a legal fiction only if and insofar as it is an assertion of that which the law itself classifies as a question of fact. Before I expand upon this it is necessary to say something about questions of law and questions of fact.

It is often assumed, not least by courts, that the classification of questions into those of law and of fact is a classification by natural categories. Certainly no court would doubt that "detinue is abolished" is a proposition of English law, not one of fact. 37 But it is also a fact that detinue has been abolished in English law. To be sure such facts are "institutional" facts, i.e., facts whose character of truth depends upon the rules and practices of insti- tutions. But we refer to such facts all the time. It is a fact that, at the time of writing, the government of the U.K. is Conservative, and it is a fact that Italy won the 1982 World Football Cup. Only those intent on advocating a radically parsimonious ontology have ever sought to deny this.

36 p. 31. This is a modification of Fuller and all that is necessary; not the stronger hypothesis actually used by him, namely that X stated that there was no condition as to price. 37 Torts (Interference with Goods) Act 1977, s.2 (1).


There are, however, some notorious types of problem. Is it a question of law or fact whether certain behaviour is "insult ing," whether someone exercised "reasonable care," whether flats with a shared ba th room are two separate "dwelling houses," or whether some individual is an "occupier" for the purpose o f the Rent Acts or o f the Occupier 's Liability Act? These questions deal not with pure, but with applied, legal propositions, that is, the law as it applies to the particular case. Nearly every case that comes before a court involves a problem about applied legal proposit ions and, thus, most questions before courts are about the application of law to fact. 3s

The law has the capacity to recognise three categories: questions o f law, of fact, and of mixed law and fact. But the impor tan t point to bear in mind is that the law is its own determiner o f what falls into which category. This power is a necessary corollary o f another feature, namely that in many cases the law itself lays down that every question has ult imately to belong to one or other of only two classes. It has to be either law or fact. To be sure, some questions may be held to contain a number o f sub-questions, some of which belong to one category, some to the other. But often there is no third irreducible category of law-and-fact. Remember that the law is its own determiner, not just of what is law, what fact; it determines also whether any question is an irreducible one or not. An informed layman would probably say that whether any person had exercised reasonable care is a mixed question of law and fact. In English law it is an irreducible question, and that question is one o f fact.

Very of ten courts do not have to say whether a quest ion before them is one o f law or o f fact. Sometimes, however, the question

as Some courts in some jurisdictions have power to entertain questions of the meaning of propositions of law without knowing the facts; but even here there will usually be hypothetical facts. However, although nearly every case is an application of law to fact, not every link in a court's chain of reasoning is one of law and fact since some questions, for instance the ranking of sources, can be answered whatever the facts.

358 Legal Fictions

does have to be answered. There are three principal areas in which it arises and in which there are often only two categories: appeal, precedent, and evidence.

Not infrequently appeal is available on a question of law, but not on a question of fact. Or it may be that both are available but go to different courts or require a different appeal procedure. In order to determine its jurisdiction to entertain the case the appeal court must decide whether the question is one of law o r f ac t . 39

It may break the question down into sub-questions and hold that some are law, some fact. But every question regarded as irreducible has to be one or the other.

In precedent the issue arises in this way: if the question is one of law its determination is a precedent and can be cited before future courts, and may be binding on some. This often leads courts

.to decide that the question before them is one of fact, and fact only. One of the best known of these examples, and one I have already mentioned, is the issue of "reasonable care" in negligence. Courts have repeatedly held that this raises one irreducible question and that question is one of fact. Thus, past cases on reasonable care cannot be cited as precedents o f what amounts to reasonable care and courts retain a discretion untrammelled by a plethora of past authorities.

In evidence the question arises whenever there is the additional question of whether something has to be proved as a fact in evidence or, alternatively, argued as a matter of law. This may well raise points not just about courtroom procedure but about the form of pleadings. Often, however, questions o f classification are never raised. So long as it is relevant it is left fluid as to whether an argument is one of the meaning of a proposition of law, its application to the present facts, or a secondary factual inference from primary facts.

So the question as to whether any question is one of law or

39 The same problem of the jurisdiction of the appeal court can, of course, arise for the inferior court if, for example, leave for appeal is required from the inferior court.

Kenneth Campbell 3 59

fact, for the purposes of the law, is itself a question of law. In short, the law governs its own classifications into law and fact.

It might be objected to this that pure proposit ions of law cannot but be questions of law, and therefore whatever may be true about the law's au tonomy in classifying mixed questions of law and fact, the status of questions of this type as questions of law is not itself legally determined. This, however, would be to overlook foreign law. In most jurisdictions even pure proposit ions of foreign law are legally classified as questions of fact and have to be proved in evidence. 40 The converse of this is the inherent power of the courts to convert what would naturally be regarded as questions of fact into questions o f law by holding that terms in statutes or precedents are terms of legal art. That this is entirely a mat ter of legal p ronouncement is demonst ra ted by pointing out that , in England, the determinat ion of the point of birth according to law is laid down by purely legal criteria, but , at least on one view of the law, death is, by law, a question of clinical judgment . 41

This enables us to dissolve the paradox about fictions. Fictions are created by rules o f law, but the relevant rules govern matters which the law itself regards as questions of fact. The fiction arises f rom the content of the rule being false when regarded as a ques- t ion of fact according to non-legal classification. Take the fiction, once again,

(3) i fA asserts that p , t h e n p .

As a legal rule this is neither true or false, since rules have no

40 See, by contrast, the European Communities Act 1972, s.3 (1) which provides that E.E.C. Law is to be a matter of law in British courts; considered by the House of Lords in R. v. Goldstein [1983] 1 W.L.R. 151. For an example in revenue law of the House having to rule as to whether a question was one of law or fact see Edwards v. Bairstow [1956] A.C. 14. 41 cf. J. C. Smith, and B. Hogan,CriminalLaw (London: Butterworths, 1978) 4th edn., pp. 268-69 and G. Williams, op cit., pp. 233-37,249-50. The fact that there can be differences in legal opinion on how the matter of death is to be classified highlights, rather than detracts from, the point that whether the question is one of law or fact is itself a question of law.

360 Legal Fictions

truth-value. However, it governs what the law regards as a question of fact, namely the evidential relationship between A's assertion that p and p 's being the case. The law therefore regards the statement that A's assertion of p is conclusive proof of p as a true statement not just o f the content of a legal rule but of a question of fact. Viewed, however, as a question of fact by non-legal classification the statement is false. In short, fictions cannot be explained in terms simply of a contrast between rules and facts. They require for their explanation a contrast between two different classifications of fact.

This also explains the uncertainty. Does the doctrine of apparent authority involve a fiction? Or that of the unity of husband and wife? Or that boys under fourteen cannot commit rape? We are uncertain how to answer these questions because we do not know whether that which is governed by such rules is a matter which the law regards as a question of law or of fact. If the law takes the view that it is a question only of law that boys under fourteen cannot commit rape, then there is no fiction. It is simply a rule about legal capacity to commit this crime and that can be refor- mulated as a question about the conditions under which this is a crime. If, however, the law takes the view that it is a question of fact that boys under fourteen are incapable of the physical acts necessary for rape then this involves a fiction, since the content o f the rule is (presumably) false when regarded as a fact by natural classification.

In general the legal result will be the same whether the law classifies it as law or fact; that is, boys under fourteen cannot be convicted of rape. So usually the law will take no view as to whether this is a result of law or fact. It will be obliged to do so only in the event that some other aspect, such as procedure, jurisdiction or appeal turns on the point. And at least the last of these can hardly ever be raised on this point since the rule is conclusive whichever way it is classified. 42

4~ Hereafter I shall use "factg" to mean a fact by legal classification and "factN" to mean a fact by natural classification. The subscript is used anal-


5. HOW ARE FICTIONS DISTINGUISHED FROM ERRORS?

Fuller's account does not recognise any distinction between two categories o f fact. It fails, therefore, to deal with the problem that, viewed in one way, fictions cannot be said to be false. Theories of this type are forced also to try to deal with the difference between flctions and errors by resort to the idea of consciousness o f falsity. Fuller's explanation, as has already been pointed out, is somewhat opaque on this point because it is unclear whether we are supposed to be considering consciousness o f falsity on the part o f courts or litigants.

We are, I think, now better placed to see why that is wrong whichever way it is taken. If the consciousness o f falsity is that of the litigant then it means that a person cannot be said to be relying on a fiction if he believes that that which he is contending is true. This, however, is to place far too much weight on individual beliefs. It can hardly be doubted that a person is relying on a fiction if he avails himself o f a legal procedure that allows him to rely on a proposition o f factL which is false as factN no matter what his own mental atti tude to its truth or falsity happens to be. If, on the other hand, the consciousness o f falsity is that o f the court then this means, in effect, that nothing can be a fiction until it is recognised by the court to be such. Imagine once again a proposition o f factL which is false as factN. On Fuller's type of view we are forced to hold that it is only when a court realises the discrepancy that the fiction comes into existence. But this is surely quite wrong. When the court realises the discrepancy i t realises

ogously for particular facts. Since the fact that a law exists is also a fact (albeit institutional) by natural classification it follows that a distinction can equally be drawn between lawL and lawN. Not being much concerned with this contrast, however, I shall use "law" to mean "lawL" , i.e. a question of law by the law's own classification. Discrepancies between legal and natural meanings of terms are, similarly, indicated thus, e.g. "deliveryL" vs. "deliv- eryy."

362 Legal Fictions

that it has been allowing a fiction. The fiction can perfectly well exist before the realisation that it is such.

The distinction between questions of factL, factN, and law accounts, too, for "dead" fictions. One of the most impressive parts of FuUer's book is that in which he discusses the change which occurs when a fiction shifts f rom being a live one to being a dead one, that is, no fiction at all. This, he says, happens "when a compensatory change takes place in the meaning of the words or phrases involved. ''43 In short, the word or phrase acquires a special meaning. Fuller interestingly points out that legal language often gives an indication that the process of demise has commenced. Take the case of delivery of a deed. The law may wish to extend the effect of the existing rule as to the consequences of delivery to cases in which there has not been delivery. One technique is simply to hold as a factL that, in certain circumstances, there has been delivery whether this is a factN or not. At this stage there is resort to a fiction. The law may then relax this in one direction but tighten it in another. The rule is changed to one which requires "constructive" or "symbolic" delivery. At this stage it may be unclear whether there is a fiction or not. The primary factsL may be coextensive with the primary factsN, but it may be arguable as a factN whether those factsN are constructive or symbolic of deliveryN. That is, whether the factual inference is coextensive. Finally, the law may alter the meaning of "delivery" so that the rule now extends to the cases it wishes to cover even when factsL, both primary and inferential, are entirely coextensive with factN. The fiction is now dead.

We start with "deliveryL" equivalent to "deliveryN", but factL not equivalent to factN and end up with factL equivalent to factN, but "delivery L" not equivalent to "deliveryN ".

Here again Fuller's actual account of this operation is obscure. He discusses it specifically in the context of the maxim "quifacit per aliurn facit per se", and explains that "probably it was origi- nally a fiction because it was understood as an invitation to the

43 p. 14. There are, of course, other ways in which fictions can be eliminated.


reader to pretend that the act in question had been actually done by the principal in question. But the statement has been so often repeated that it now conveys its meaning ... directly; the pretense that formerly intervened between the statement and this meaning has been dropped out as a superfluous and wasteful intellectual operation. The death of a fiction may indeed be characterised as a resuh of the operation of the law of economy of effort in the field of mental processes." 44

This is doubly obscure. First because this example is not in fact a case in which the meaning of any word has changed to acquire a technical meaning. If the fiction has been eliminated it is because the maxim is one which is no longer regarded as governing a question of fact, only of legal consequences. In other words, the change is that from saying that as a factL someone who has an agent act on his behalf performs his agent's act himself, to that of saying that the legal consequences of having an agent act on one's behalf are the same as those which would follow if one performed the agent's acts oneself. Secondly, the account is obscure because it wavers between the conceptual and the psychologistic. It can hardly be claimed to be an intuitive truth that regarding some factL as differing from its counterpart N is psychologically more difficult or time-consuming than regarding some term as having a meaning L different from its meaning N. Even if it were true it would still fail to explain what conceptual change had occasioned this change in psychological experience for those who think about it. The change is explained, however, at the conceptual level as the replacement of a discrepancy between two categories of fact with a discrepancy between two meanings of a term.

6. HOW A R E F I C T I O N S D I S T I N G U I S H E D F R O M L I E S ?

Fuller's account, in reconstruction, attempts to distinguish fictions from lies by maintaining that fictions, unlike lies, are not intended

44 p. 19. Emphasis in the original.

364 Legal Fictions

to deceive. This, however, places a burden on motivation which it is incapable o f bearing.

A lie is not necessarily intended to deceive everyone whom it is foreseen or even intended will be appraised o f the statement which it contains. X may make a false s tatement to Y intending that it should be heard also by Z, intending to deceive only Z, not Y. Once this is pointed out the distinction between lies and fictions offered by Fuller's account collapses. It can hardly be claimed as an analytical truth that no court can ever create a fiction with the intention o f deceiving someone into believing that that which it lays down as a mat ter o f fact L is also true as a matter o f factN. After all, Fuller himself admits this. He tells as that a fiction may sometimes be created with the intention of deceiving the public into thinking that the law is not being changed. But, he says, " the fiction, as such, was not intended to deceive and did not deceive anyone. No one believed [for example] that the chattel [in an action of trover] had been found by the defendant simply because the pleadings said so; the fact was known to be otherwise. ''4s i:ulier, however, does not explain how the court could intend, by a fiction, to deceive someone into thinking that the law was not being changed if it knew that he could not be deceived by the fiction itself. To be deceived by a false premise into reaching a false conclusion one has to be deceived by the premise. 46

Could it, however, be claimed that there is a particular class o f persons with respect to which it is an analytical truth that they cannot be intended to be misled by a fiction? It might be said that lawyers, at any rate, are not deceived. It may be true, for all

4s p. 6. (Emphasis in the original.) 46 Fuller's account is not without its difficulties of interpretation. At. pp. 6--7 he appears mostly to be discussing the pretense that the law was not being changed. But at one point he says that "more accurately stated ... the deceit consisted in the representation than the expansion of the action of trover under this pretense was legitimate." This, of course, is not a more accurate a statement of his main point; but a completely different point, and one about which it is difficult to say anything without knowing Fuller's view on what powers the court took itself not to have.


I know, that no lawyer has ever been deceived by a fiction. Even that, however, if admit ted, is not sufficient for the account. It has to show not that no lawyer has ever been deceived, but that no court has even in tended to try to deceive any lawyer by a fiction. Fur thermore, it has to show, that this is not just a contingent, bu t an analytic, t ruth. To the best o f my knowledge, no proponent o f this type of account has ever even begun to establish such a claim.

7. WHY DO FICTIONS ARISE?

This question forms the title of the second main part o f Fuller's essay. My own discussion will be much briefer than this. Eschewing excursions into psychology I shall comment only briefly on the formal considerations.

The reason for the existence o f fictions follows directly f rom their nature. As a specific legal technique they are used to give any rule of law a wider, or narrower, ambit than it would have if applied non-fictitiously, while at the same t ime preserving the rule's original form and the meaning of its terms. The change occurs by creating a supplementary rule in which factr , which is an antecedent in the principal rule, is not equivalent to factN. It is the discrepancy between the two classifications which not only explains what fictions are, but why they are so useful in con- straining circumstances. The tension between the two classifications o f fact is the pre-condition of the range of application of the rule being altered. Fictions are necessarily about changes in the application of the law. 47 Most of these changes will be over time. The rule has a range of application at one t ime which is desired at

47 Another famous, if laconic, definition was that of Henry Maine, namely "to signify any assumption which conceals, or affects to conceal, the fact that a rule of law has undergone alteration, its letter remaining unchanged, its operation being modified." Ancient Law (1861; World Classics edn., Oxford: Oxford University Press, 1931), pp. 21-22. Taken in one way, this does not exclude changes in the meaning of words; and these are not instances of the use of fiction. But if "assumption" means "factual assumption", then on the present account, Maine's view is not wrong, just underdeveloped.

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some later time' to alter. Fuller, however, has brought to our attention the important point that, conceptually, the change need not always be diachronic. Rules may, from their very inception, have had attached a rule creating a fiction. This might occur when the law-creator wishes to give the impression that the rule has a range of application different from that which, as a result of the fiction, it will have. 48

As a matter of historical fact, it is probably true that most fictions have been created by courts. This is hardly surprising, since the need for fictions arises only when the law-creating source is, or takes itself to be, subject to severe constraints in ways of altering the range of application of rules. Courts which are not supreme sources of law and which have jurisdictional limitations are likely to be, or feel, more narrowly hedged around by inhibit- ing factors than supreme legislators. However, supreme lesgislators too can be, or take themselves to be, subject to constraints, either constitutional or political. And so there no reason to suppose that they too may not rely upon a fiction in order to change the range of application of some other rule.

8. THE FORM OF RULES CREATING FICTIONS

Any rule creating a fiction is necessarily parasitic on another rule, since a fiction has a purpose and effect only if there is another rule whose range of application will be changed by the fiction's existence. Take any rule of the form

(6) p ~ c .

The range of application of this rule may be extended by creating the following rule of factL (not equivalent to factN )

(7) q~p.

4s pp. 83-84. Fuller is, however, being too restrictive in suggesting that the law creator is acting in such cases in a mood either of apology or mercifulness. He may be motivated by nothing other than political prudence.


The joint effect of these two rules is

(8) (p v q) - , c.

Similarly, if the initial rule is

(1) (p & q) c

then this may be extended by adding as rules of factL (not equivalent to factN ) either

(9) p -~ q, or

(7) q-~ p

and, if both, the joint effect is, once again, (8). Contrariwise the range of application of a rule may be narrowed

by a fiction. Suppose again one has as the principal rule (6). One then adds as a rule of factL (not equivalent to factN )

(10) q--~p

So that the joint effect is, for practical purposes,

(11) (e&

which has a narrower range of application since the absence of q has positively to be shown, q being a defeater on p.

These are merely illustrations. It would serve no present purpose, if it is even possible at all, to describe all types of rule which create fictions. They are as many and various as the types of rule the law may have governing question of fact and which, together with another rule, alter the range of application of the other rule while leaving its form and meaning of its terms intact.

Since rules creating fictions govern questions of factL, they will generally govern the principal way in which courts are appraised of facts, namely evidence. But they need not always do so. Facts which the law regards as being ones of common knowledge are taken to be within judicial notice and require no proof in evidence. Consider the maxim "the King can do no wrong." It is possible to take this in two ways. Taken one way it does not create a fiction.

368 Legal Fictions

It say s merely that the King is exempt from the rules of the criminal law. Taken in another way it asserts as a matter of factL that the King is physically incapable of performing a criminal act. If it is taken in the latter way it creates a fiction, but the facts in question are not ones which require proof in evidence. The fiction is one relating to facts within judicial notice.

In terms of semantic formulation, too, the law makes use of a great many forms of expression when attempting to alter the range of application of a rule. Suppose, once again, one has rule (6) and it is desired to increase its range of application: the law may resort to rules, inter alia, in the following semantic forms:

(12) "q shall be treated as if it were p,"

(13) "q is deemed to be p,"

(14) "p's include q's,"

(15) "a finding of q is conclusive o fp . "

I think it would generally be agreed that (12) usually creates no fiction. It is merely a stylistic variant on (121) "the rule which applies to p shall be extended to q." Conversely, (15) would usually be regarded as creating a fiction if it is not true as a factN that the presence of q is conclusive of the presence of p, since the rule could hardly be regarded as governing anything other than fact.

(13) and (14) however, are difficult, without further knowledge of their precise legal working, to classify as rules creating fictions or not. The account I am offering leaves the question open. It leaves it open, however, in the right way. We are uncertain whether they purport to create rules governing questions of facte or of law. There is no conceptual uncertainty on this account. It is just that there is insufficient knowledge in many cases to determine what the law's own attitude is.

There is probably no particular semantic formulation which, by itself, compels a court to an interpretation which either entails or defiles a fiction. Whether or not a fiction is created turns only on


whether the court classifies the rule as one governing fact or not. So the interpretation of any rule with regard to this point is just as much or as little governed by its semantic formulation as on any other point of interpretation.

It may be added, too, that on the present account most legal presumptions require no separate treatment. 49 Presumptions are generally taken to be in the realm of questions of factL and the rules which govern them, therefore, create fictions insofar, and just insofar, as the presumption of factL diverges from the corresponding presumtion of factN. Often, of course, there will be uncertainty as to whether a fiction has been created because of uncertainty as to what is, or what weight is to be assigned to, the presumption as factN. It seems safe to conclude, however, that there will be few, if any, conclusive presumptions of fact which do not involve fictions if that which is presumed does not follow analytically from the antecedent or as a conclusion from it together with a law of nature.

9. ARE FICTIONS INEVITABLE?

My answer to Fuller's last question will be considerably briefer than his. Leaving aside, as throughout this article, the psychological aspects, one can say that the existence of fictions is necessary only in the sense that if an end is desired and there is only one means of achieving it, then resort to that means is necessary. If courts wish to alter the range of application of rules but cannot alter their form or change the meaning of the terms in them, then there is little ahernative but to create sub-rules altering the conditions under which the factual antecedents in the rule are held to be present.

There is no conceptual bar to any institutionalised system resorting to this device providing that it is not only fact-finding

49 I exclude those "pseudo-presumptions" which are merely statements of the burden of proof. For discussion of presumptions see R. Cross, EvidenCe, (London: Butterworths, 1979) 5th edn., Chap. 6.

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and rule-determining but also has the power to say which function is which. However, it is probably true that only the law has ever resorted to the device on such a scale, or with such comparative s u c c e s s .

Success by such a means can never be more than comparative. Every gain in altering the range of application of the rule has, of necessity, to be offset by the loss of clarity, and perhaps even of credibility, in the law, as that which it regards as factL is prised from our normal conceptions. It was this aspect on which Bentham concentrated in his famous attack on fictions, and par- ticularly fictions in English law. However, perhaps such critics were wrong not to give thought to the proposal that whenever it is true that courts have nowhere else to turn, they may be justified in resorting to fictions, even when judged by the standards of utility.

Dept. of Law University of Reading Reading, RG6 2AH England

Fuller on legal fictions

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