Rostam J. Neuwirth, Book Review: Is “Legal Fiction” An Oxymoron?: A Book Review of Kristin Y. Albrecht, Fiktionen Im Recht (Nomos, 2020) @KYAlbrecht @rostam_neuwirth @NomosVerlag
Is “Legal Fiction” an Oxymoron?
A Review of Kristin Y. Albrecht, Fiktionen im Recht (Nomos Verlag, 2020)
Rostam J. Neuwirth
University of Macau
Evidently, the term “legal fiction” connotes a combination of law and fiction. At a first look, the two concepts seem opposed, contradictory and likely impossible to reconcile. The reason is that law, notably when expressed in the rule of law, can be considered a source of certainty and predictability, whereas fiction is attributed more to literature, where it is the general term for invented stories, as told in novels, short stories, or other narrative works. In other words, one may ask whether a “legal fiction” thus constitutes an oxymoron, or contradictio in adiecto to be linguistically more precise?
This may sound like a theoretical question, one more relevant for academia in general or for literary studies more than for legal practice. Yet, legal fictions in particular but, more generally, oxymora and paradoxes, which simply put are both rhetorical devices expressing varying degrees of contradiction, have surprisingly strong implications not just in language but also in our actions. This has been shown for the metaphor, which is not just a “device of the poetic imagination” but also “pervasive in everyday life, not just in language but in thought and action” (Lakoff & Johnson, 1980: 3).
Already in 1995, James N. Rosenau anticipated the major challenges for the 21st century to have “to discern powerful tensions, profound contradictions, and perplexing paradoxes” (Rosenau, 1995: 1). In the same year, Charles Handy completed his book “The Age of Paradox”, in which he warned it to be imperative to be able to make sense of paradoxes and “to use them to shape a better destiny” (Handy, 1995: xi). The book “Law in the Time of Oxymora” published in 2018 also marks an attempt to show that these rhetorical devices equally matter in literature and in law and other sciences as well as in theory and in practice (Neuwirth, 2018). Additionally, it argues that these figures of speech, also referred to as “essentially oxymoronic concepts”, seem capable of bridging the gap opened by dualistic modes of cognitive reasoning as expressed in all kinds of dichotomous pairs, such as law or fiction and truth or lie.
Especially in these rapidly changing times, with serious problems of a global dimension, from climate change, growing inequality to pandemics and sustainable development, combining the brains of hedgehogs with those of foxes, or otherwise said, addressing not only the detailed problems but also asking and trying to solve the big and fundamental questions is needed more than ever. In this world where the boundaries between all kinds of distinctions are increasingly blurred, where oxymora like “alternative facts” and “fake news” threaten to confuse our brains, we are advised to look deeper into the premises that guide our thinking in general and legal thinking in particular, as George P. Fletcher warned (Fletcher, 1985: 1292).
And what better term is there to start exploring the current reality than with the one of fiction? The book entitled “Homo Deus: A Brief History of Tomorrow”, not coincidentally a double oxymoron, states about fictions as follows:
In the twenty-first century fiction might thereby become the most potent force on earth, surpassing even wayward asteroids and natural selection. Hence if we want to understand our future, cracking genomes and crunching numbers is hardly enough. We must also decipher the fictions that give meaning to the world (Harari, 2017).
If fictions have such a powerful role to play in the future, why not also consider and discuss them in combination with the role of law in, paradoxically, both the future and in creating the future as we imagine it?
Truth is that law and fiction have evolved hand in hand since the darkness of time. For anyone interested in their connection and relevance for the big questions, such as what constitutes reality, truth or justice to mention but a few, there exists now a new scientific treatise that balances both detailed and comprehensive aspects of these fundamental questions about the relation between law and fiction. The book in question is entitled “Fictions in Law” and was authored by Kristin Y. Albrecht. It was published in fall 2020 in German language under the original title “Fiktionen im Recht” in the Nomos series of legal philosophy and legal theory.
As a synopsis, this book contains a comprehensive discussion of legal fictions from not only the perspective of law and legal science but it also considers the meaning and use of fiction in philosophy and literary studies. In structural terms, the book contains seven parts, the first of which introduces the concept of legal fictions and lays out the scope of the book. Implying that “legal fiction” can be regarded as an essentially contested concepts across time and places, the author clarifies to focus solely on “fictions in law” and not the question of “law as fiction”, albeit later passages also touch upon the latter question from various philosophical angles. Additionally, it provides a few selected examples of typical categories of legal fictions, such as the one enshrined in the Austrian Civil Code, which grants an unborn child rights similar to those already born, which contradicts the principal rule of the lawmaker that only people already born can be holders of rights. At the same time, it refers to the relevance of fictions for the fundamental questions about life, such as whether there is a free will or an objective reality. Finally, the introductory part also states the primary objectives, which are to analyse, first, the role that fictions play in law, second, how they are defined and, third, whether there is a rational explanation for the use of fictions in law.
The second part of the book traces the historical evolution of legal fictions from ancient times to the present, largely concentrating on Roman law as the basis for the later development of the civil law and the common law legal traditions. One interesting example is the legal fiction from the Institutions of Gaius, by which a peregrinus, a kind of resident alien and not a Roman citizen, can be held liable as if s/he were a Roman citizen and, at the same time, is also granted the right to file an action in court. Another famous example is the Lex Cornelia, which considered a soldier who had died in captivity dead from the moment of his capture. From Roman law, the second part follows the legal trends from the middle Ages to the modern times and later to the 19th and 20th century, by discussing notably the writing of important jurists and other commentators. Too many to mention here, two names that stand out from the discussion are the German philosopher and Kant scholar Hans Vaihinger, author of the book “The Philosophy of ‘As if’” (“Die Philosophie des Als Ob”) (Vaihinger, 1935). His book had left a lasting impact on the discussion of fictions in law, as it is notably shown by virtue of a discussion by Hans Kelsen’s Basic Grundnorm, which he first considered a hypothesis and later a fiction. Subsequently, the discussion moves to the Anglo-American legal family, which also reflects the how contested the use of legal fictions was considered to be. Here the reader learns how William Blackstone considered legal fictions to be “troublesome, but not dangerous”, while Jeremy Bentham wrote that “fiction is a syphilis, which runs in every vein, and carries into every part of the system the principle of rottenness.” Later the discussion moves to the work of Lon L. Fuller, who had a more balanced approach and highlighted the feature of falsity in fictions, when he characterized legal fictions as “either (1) a statement propounded with a complete or partial consciousness of its falsity, or (2) a false statement recognized as having utility.”
In the third part, the basic philosophical foundations of fictions are discussed in a comprehensive manner with a view of defining the concept of legal fictions and delimiting it from related concepts, such as the lie, the imaginary, the assumption, the hypothesis or the legal analogy. To this end, the author uses both a philosophical and a literary approach, which shows that an effort to better understand the phenomenon of fictions must include a transdisciplinary angle if it wants to succeed in being meaningful. Most interesting in this context is the opposition of fiction and truth. In this respect, the book debates the possibilities, whether 1) no fictions in law can be true, 2) some fictions in law can be true, 3) every fiction in law can be true, or 4) fictions in law cannot be considered using the category of truth.
The fourth part is dedicated to the question of how fictions ought to be defined in legal science and legal theory. It is clear that the multitude of legal fictions does not allow for a conclusive definition. Yet, the author provides the following working definition she concludes from this part, which reads as follows:
A legal fiction is an imaginary structure in law, which deviates from a superior rule (which relates to the imaginary structure) in an artificial way in order to fulfil a higher purpose of the law.
This extracts probably one of the most important functions of legal fictions, namely to constantly adapt the law to changes in its context and to also balance the dichotomy of the letter and the spirit of the law. The latter reminds me of a discourse in Talmudic law known by the concept of “lifnim mishurat hadin” or “beyond the letter of the law” (Berman, 1975: 86). Eventually, this part concludes by a useful listing of definitions for 1) fictions, 2) fictions in law, 3) fictions of legal application, 4) legislative fictions, 5) personified legal fictions and 6) fictitious institutions.
Building on the previous parts, the fifth part looks at the different single types of legal fictions with the aim of classifying them systematically. For instance, legal fictions can be classified according to the motives for which they are used or for their field in which they are applied. In a nutshell, the multiple types are best exemplified in the following Table on page 256.
This table successfully illustrates not only the chameleonic nature of fictions but also their wide reach and overall utility. Here it suffices to name the discussion about the “fictitious” or “real” nature of a legal person. In this regard, the author also briefly expands the debate to the example of the granting of legal personality to a river, the Tw Awa Tupua in New Zealand. Without mentioning them in this place, this example marks an important aspect of legal fictions which has already received attention by pondering changes in the legal status of animals, trees and more recently robots and other so-called “artificially intelligent machines”.
The sixth part proceeds by a critical evaluation of the different types of legal fictions and mentions first and foremost the role of fictions for the further development of law. Second, they can be used to test new legal norms or instruments. They may also serve the purpose of taking considerations of justice in the sense of equity in greater account. However, all these potential roles of legal fictions are not undisputed and also bear certain dangers and risks in terms of the rule of law. This part closes with a table listing the various pros and cons related to different types of legal fictions.
Finally, the seventh and last part marks the most difficult task, namely to conclude this fascinating but equally vast, complex and ever faster evolving topic. Here, it is important to mention the timeless and even eternal significance of fictions, both in law and in life. It is also noteworthy that the book align the different discourses about legal fictions in civil law and common law legal traditions as well as in philosophy and literature. In my opinion, this quality clearly shows the need to develop and expand further the study of fictions and legal fictions, especially with a view of theorizing a future global legal order (Halpin and Roeben, 2009).
To summarize briefly, the present work “Fictions in Law” by Kristin Y. Albrecht is a rich and comprehensive treatise on fictions in law. It will offer every reader, regardless of the interest or professional background many useful insights. These insights are particularly valuable for the legal community, from students to scholars and practitioners, as they offer a toolbox for the efficient and creative solutions to many serious present practical problems and challenges from the future.
As for the future, Nicholas Rescher once wrote that “[T]he future matters to everyone because that is where we are all going to spend the rest of our lives” (Rescher, 1998: 1). Thus, for anyone interested in the future, fictions matter as well, because they do not automatically remain fictitious or always stay in opposition to reality and truth. To the contrary, they have proven to be almost “surreal” in the sense of being more real than reality. Often, they have allowed to repair flaws caused by the law lagging behind societal developments.
The book also dissolves further apparent contradictions, such as that it is possible to draw the big picture of law and legal fictions while at the same time also discussing a large number of concrete examples in detail and depth. By doing so, it highlights not only the importance of a discussion of legal fictions, which must be continued and expanded, to – for instance – other legal traditions of the world. Equally, it must also inspire other scientific disciplines to join or at least link their debate to the one of their peers by breaking disciplinary boundaries and engaging more actively in transdisciplinary research and cooperation.
So coming back to the initial question, the term “legal fiction” must not be an oxymoron, a contradiction in terms, or only to the extent that oxymora denote contradictions, which can also be possible. Fictions remind us that law is more “magic” than it appears, as law shares many important features with the latter (Corcos, 2010). Hence, for the future, it is realistic to assume that not only humans, companies, states or rivers are vested with legal personality but also animals, trees, and even machines. More so, it offers a chance and a tool to imagine and achieve even greater things. Already Ludwig Wittgenstein wrote that “what is thinkable is also possible” (Wittgenstein, 1960: 43 (3.02)). This is where fictions in law have, in my view, the greatest role to play in the future, namely in designing the future itself. This would be an expression of law as a science fiction, i.e. a scientific method to bring about change in a desired way, as lawyers, too, can act in a way similar to that of science fiction authors, “given that they can help in translating fiction into legal fact or turning dreams into reality” (Neuwirth, 2020: 86).
Testing this hypothesis now may be opportune, because we now live in truly interesting times, sometimes called the Anthropocene, where – aided by a seeming acceleration of the passing of time – it seems we have increased our cognitive ability to not only formulate imaginary concepts but to also enhance the chances of their realization. This is in particular a reminder for everyone around the world but especially for lawmakers and political leaders and decision makers to step up their ambition in formulating new visions for a future in which international peace, equality, prosperity, sustainable development and other important objectives constitute not mere fictions akin to expressions of wishful thinking but, over time and thru law, become realities of their own.
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Rostam J. Neuwirth is Professor of Law and Head of the Department of Global Legal Studies at the University of Macau (China).
References:
Berman, Saul J., “Lifnim Mishurat Hadin (II)” (1975) 26(1–2) Journal of Jewish Studies 86.
Corcos, Christine A., Law and Magic: A Collection of Essays (Durham: Carolina Academic Press, 2010).
Fletcher, George P., “Paradoxes in Legal Thought” (1985) 85(6) Columbia Law Review 1263.
Halpin, Andrew and Roeben, Volker (eds), Theorising the Global Legal Order (Oxford: Hart, 2009).
Handy, Charles The Age of Paradox (Boston: Harvard University Press, 1995).
Harari, Yuval Noah, Homo Deus: A Brief History of Tomorrow (Harper, New York, 2017).
Lakoff, George and Johnson, Mark, Metaphors We Live By (The University of Chicago Press, Chicago, 1980).
Neuwirth, Rostam J., “GAIA 2048 – A ‘Glocal Agency in Anthropocene’: Cognitive and Institutional Change as ‘Legal Science Fiction’”, in Meredith Kolsky Lewis, Junji Nakagawa, Rostam J. Neuwirth, Colin B. Picker and Peter-Tobias Stoll, (eds.), A Post-WTO International Legal Order: Utopian, Dystopian and Other Scenarios, 71-92. Cham: Springer.
Neuwirth, Rostam J., Law in the Time of Oxymora: A Synaesthesia of Language, Logic and Law (Routledge, London, 2018).
Rescher, Nicholas, Predicting the Future: An Introduction to the Theory of Forecasting (Albany: State University of New York Press, 1998).
Rosenau, James N., “Governance in the 21st Century”, (1995) 1 Global Governance 1-13.
Vaihinger, Hans, The Philosophy of ‘As If’: A System of the Theoretical, Practical and Religious Fictions of Mankind, 2nd ed. (London: Kegan, 1935).
Wittgenstein, Ludwig, Tractatus Logico-Philosophicus (London: Routledge, 1960).