Legal Fictions before the Age of Reform

Abstract

Before the era of reform, the common law was replete with fictions. The procedure by which litigation commenced in the common law courts was premised on fictions, while litigants also used fictions to enable themselves to avail themselves of convenient remedies. In allowing litigants to make false statements of facts, the courts allowed the law to develop in new directions, while disguising the fact that it was changing. However, there were also other kinds of fictions, which operated more like rules of law. They included ‘metaphysical’ fictions (as where something which no longer existed was deemed still to be in existence) as well as ‘fictions’ which were in effect metaphors or analogies. This chapter explores the operation of these fictions, as well as the criticisms and defences made of fictions before their nineteenth century reform.

Conclusion

For jurists like Maine, and perhaps also Austin, fictions were a passing phase in the history of legal development, a method used by lawyers who wanted to reform the law, without offending those who wished to see the old law preserved. ¹⁰³ For men like them, the reforms effected in the first half of the nineteenth century, which transformed civil procedure and ultimately abolished the forms of action, seemed to have consigned the very notion of fiction to a bygone age of jurisprudence. Courts of course continued to apply the ‘metaphysical’ doctrines such as relation, but now tended to speak of them as the creatures of law, rather than of fiction. ¹⁰⁴ The fictions which had so exercised the mind of jurists in the eighteenth century and before now seemed to have been consigned to history.

Nevertheless, jurists at the end of the century, and into the twentieth century, continued to argue that the common law was still replete with fictions, and that new ones were regularly being invented. Frederick Pollock challenged Maine’s view that the rise of legislation had left no room for fictions, pointing to the mid-century development of ‘[o]ne of the most brilliant and successful fictions of the Common Law,’ the implied warranty of authority which attached to the acts of a professed agent, ¹⁰⁵ which was introduced in the case of Collen v. Wright. ¹⁰⁶ Other jurists identified a large range of fictions found in the substantive law. Discussing ‘surviving fictions’ in 1917, for instance, Jeremiah Smith included in his list of fictions not only conclusive presumptions (such as ‘malice’ in criminal law), but also ‘constructive’ trusts or fraud . Lon Fuller later gave other illustrations where legal doctrines rested on fictions: they included ‘constructive notice’, vicarious liability, the doctrine that children lured by ‘attractive nuisances’ had been ‘invited’ onto the land by occupiers, or the notion that implied conditions in contracts rested on the agreement of the parties.

It may be noted that such ‘fictions’—what J.C. Gray, following Jhering, dubbed ‘dogmatic’ fictions ¹⁰⁷—were not identified as such by writers before the age of reform. In some instances, which were familiar to the pre-reform legal mind, the ‘fictions’ were described simply as presumptions , which reflected obligations imposed by law on parties in the defendant’s position. For instance, where a party was said to have ‘constructive’ notice, it was clear that he did not have actual notice; but the law held him accountable as if he had, because he was in a position in which he should have been aware of the facts in question, and was somehow at fault if he was not. Rather than being a fiction, the doctrine of constructive notice rested on a presumption of evidence of notice that was so strong that the party was not allowed to rebut it. ¹⁰⁸ Similarly, the notion that an occupier of land had ‘invited’ children to play on his dangerous land was a means of explaining why an occupier who was aware of dangers which might foreseeably harm children should be liable if they were harmed: that is, because he should have been aware that children would be attracted onto the land, he was presumed to have permitted them to enter. ¹⁰⁹ In other instances, where doctrines were newly evolving, the fiction was an intellectual device created by jurists to attempt to explain or justify a rule which did not require or rest on a fiction. Jurists discussing the doctrine of vicarious liability might have been troubled by the notion that a servant’s negligent acts were to be taken to be the negligent acts of the master, or by the presumption that a master who had chosen a negligent servant had somehow been negligent himself when making the choice; but the maxim qui facit per alium facit per se could equally be explained on simpler policy grounds. ¹¹⁰ It was the jurists’ desire to conceptualise liability in tort in terms of personal fault which created these conundrums. Equally, the notion that the implied terms in a contract were somehow the product of the parties’ wills was the product of an attempt to explain contractual obligations in terms of the meeting of the minds.

Such ‘fictions’ were products of the theory used to make sense of the law. It is little surprising that they often proved troubling and constraining. Thus, the notion that the parties had implicitly agreed on what was to be done if the subject matter of the contract were destroyed may have been a useful tool in helping the evolving doctrine of frustration to emerge; but it ultimately proved a constraining explanatory ‘fiction’. More striking still was the early twentieth view that ‘quasi-contractual’ remedies could only be used when the parties could have made a real contract, where an explanatory model based on a fiction hindered the development of better models . Theoretical fictions which might be vehicles with which to explain doctrinal developments could easily turn into roadblocks.