Vermont Bar Journal, Vol. 40, No. 2 Spring 2015, Vol. 41, No. 1 | Page 8

by Paul S. Gillies, Esq.

RUMINATIONS
Fictions of Law

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), Blackstone 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 æquitas.4
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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 Bre