Ruminations
| Publication year | 2015 |
| Pages | 8 |
Fictions of Law
Paul S. Gillies, Esq.
When I adopted my son, the probate judge had a new birth certificate made out, naming me as the birth father.[1] When I asked why this was done, she explained it was the practice. Having spent my life up to that point in literature, this was the first spark that led me to the law. Anything this odd, I thought, deserves closer attention.
That practice is a legal fiction. Its origins are lost in the mists of time, and it has a counterintuitive quality to it. It is one example of the shortcuts of the law, designed to move things along, close doors, and expedite decisions. Legal fiction bridges the gap in evidence and in logical thinking. So we have the allocation of burdens among litigants, and special privileges, like presumptions, rebuttable and irrebuttable, and inferences, permissive and mandatory. Such tools, looked at closely, in context, occasionally make practical sense, but they challenge any faith in a system of law that is entirely positive and logical in nature. Out of context, they seem simply mysterious.
They have had their partisans and their opponents. Jeremy Bentham loathed legal fictions. A legal fiction, he wrote, is "a willful falsehood, having for its object the stealing of legislative power, by and for hands which durst not, or could not, openly claim it; and, but for the delusion thus produced, could not exercise it."[2] He railed against the "pestilential breath of Fiction," and called it names. He wrote,
In Rome-bred law in general—in the Scottish edition of it in particular—fiction is a wart which here and there deforms the face of justice: in English law, fiction is a syphilis, which runs in every vein and carries into every part of the system the principle of rottenness.[3]
Bentham had attended Blackstone's lectures in 1760, and may have heard the oracle say, "In legal fiction justice ever abides." In his Commentaries (1766-1769), Black-stone wrote,
[F]ictions of law, although they may startle at first, [are] highly beneficial and useful; especially as this maxim is ever invariably observed, that no fiction can extend to work an injury; its proper function 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 sequitas.[4]
While Charles Dickens was writing Bleak House (1852-1853), he consulted with lawyer William Mawdesley Best, who had written a treatise on legal fictions. The relationship influenced the author's portrayal of the Chancery. The firm of Jarndyce and Jarndyce is celebrated in the novel for its nimbleness in repeating over and over again "every difficulty, every contingency, every masterly fiction, every form of procedure."[5] Looking at the court and all its defects, Dickens wrote, "there is not an honorable man among its practitioners who would not give—who does not often give—the warning, 'Suffer any wrong that can be done to you, rather than come here.'"[6] The year the novel was first published the reform act rid the legal system of many of the more extreme legal fictions, but the bite of the criticism of a system that depends on legal fiction has endured to the present.
Sir Henry Maine defined a legal fiction as "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." Although the law has been changed, "the fiction is that it remains what it always was."[7] Lon Fuller, in his Legal Fictions (1967), defined it as "a statement propounded with a complete or partial consciousness of its falsity or a false statement recognized as having utility." He emphasized that it was never intended to deceive and it does not deceive anyone.[8] Brenda Jean Welch writes that legal fictions are "designed to widen the gap between what the law is and what the law ought to be."[9]
The sheer number and variety of legal fictions, and their siblings' presumptions and inferences, is surprising. The risk of creating a comprehensive list is coming to believe everything in the law is a fiction. Bentham suggests in one essay that even rights are legal fictions.[10]
What Are Legal Fictions?
Were this a question on the bar exam, most would start with the corporation, and the law's recognition that a business entity created by the state could be a person.[11] Next most obvious, because it has been the subject of many decisions, is the tenancy by the entirety. Judge Leighton P. Slack described the tenancy by the entirety as a legal fiction, as an estate founded upon the unity of husband and wife, terminated by the death of one spouse or a I divorce, justifying a division of jointly-held property proportionate to the share of a tenant in common.[12] Justice Robert Larrow agreed, in Preston v. Chabot (1980), a case that imposed a constructive trust on the undivided one-half interest in property owned by a husband and wife after he killed her. Preston's claim that as he had a vested right in the property, he did not profit from the killing, was declared frivolous by Larrow, as "his sole and complete ownership was contingent on surviving his wife."[13] A constructive trust, he explained, is an invention of the law designed to adjust the relations of parties along equitable lines.
Justice William Hill criticized the trial court in a 1984 decision for applying "the old common law legal fiction that a husband and wife are one person for most legal purposes" when reversing a judgment that a wife was liable on a promissory note signed only by the husband.[14] A wife might claim as a domicile the residence of a husband who has left the family home, moved to another state, and established a home there, without her, based on the rule that her domicile follows the husband.[15]
The legal fiction that husband and wife are one person was attacked recently, in RBS Citizens, N.A. v. Ouhrabka (2011). There the plaintiff claimed that the concept was "at odds with their equal rights of property ownership" and should be abolished, in light of the legislative removal of the "disabilities of coverture." Dismissing the argument, the Supreme Court explained that coverture and the husband's former right to possess his wife's property were distinct from the idea of marital unity.[16]
Coverture is a legal fiction that remains in the law as a term describing the marriage relationship, without the sexist implications of its history. At common law, "the legal existence of a wife was suspended during the marriage."[17] Chief Judge Nathaniel Chip-man described the idea in a decision from 1814. "A Feme, during her coverture, has no will of her own—no power of consent."[18] In 1824, Chief Judge Richard Skinner explained, "In contemplation of law, by marriage, the existence of the wife is merged in that of the husband. And it is a general principle, that she can, during coverture, make no contracts by which she is bound; or sue or be sued alone."[19] The rights of married women improved, beginning in 1867, with a statute authorizing a married woman to hold personal property acquired during coverture as her own, and another in 1884 recognizing that right to personal property acquired before marriage.[20] A 1880 change recognized the independent rights of married women to enter contracts, and sue and be sued, without the husband's consent.[21] But coverture is a word that still appears in court decisions, and is still used as a legal fiction.
"Deemed consent" is a "legal fiction that explains the lack of a ski area's duty to remove or warn skiers of tree stumps on a trail."[22] Treating the statements of co-conspirators as admissions of a party-opponent rests on "the legal fiction that conspirators are agents of the others and their statements may be attributable to all.[23] That an attorney can be both an advocate and an officer of the court is a legal fiction.[24] Quasi-contracts that arise from an implied promise that creates a duty to act or refrain from acting, independent of intention or any document, as drawn from the facts, are fictions. The duty is a fit substitute for intention. The duty defines the contract.[25]
A dissent by Justice John Holden in 1962 faulted the majority for inventing a legal fiction to reach its chosen result. The Court had read "into the oral contract between the parties, important factors that are not in the record ... It adopts a legal fiction that is not in keeping with the facts."[26]
Mere uncorroborated hearsay does not constitute substantial evidence to support an administrative determination by the parole board. This is known as the Baxter maxim, after Baxter v. Vermont Parole Board (1985). Nevertheless, the Supreme Court there concluded that the failure of the parolee to respond to hearsay charges "supplied the corroboration or substantial evidence needed to support a parole violation." Justice James Morse, in Watker v. Vermont Parole Board (1991), criticized the maxim, saying it is "not based on logic; it is a legal fiction based on a policy disfavoring hearsay evidence."[27] The Court then overruled Baxter, explaining that "resort to mechanical formulae to decide whether substantial evidence is absent or present in a given case is simplistic and evades meaningful analysis."[28] The term "legal fiction" can be an epithet or merely a device the law relies on.
In 1848, Judge Milo Bennett discussed the doctrine of relation.
[W]here there are divers acts concurrent to make a conveyance of an estate, the original act shall be preferred, and to this the other acts...
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