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From Coke to Maine: the Formation of Concept of “Legal Fiction” at English Law

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From Coke to Maine: the Formation of Concept of “Legal Fiction” at English Law ISSN 1712-8056[Print] Canadian Social Science ISSN 1923-6697[Online] Vol. 13, No. 6, 2017, pp. 41-46 www.cscanada.net DOI:10.3968/9661 www.cscanada.org From Coke to Maine: The Formation of Concept of “Legal Fiction” at English Law ZHANG Chuanxi[a],* [a]China University of Political Science and Law, Beijing, China. feigning, and the product of that act. In its common sense, *Corresponding author. a fiction is just a “lie” or a “falsehood”. The “legal fiction” Received 10 February 2017; accepted 5 April 2017 in English law has also been expressed as fictio legis or Published online 26 June 2017 fictio iuris, and fictio legis is commonly found in classical Roman literature. In Roman law, a “fictio” always means Abstract inventing or making a fact which is not true. Fictio iuris is rare in classical Roman law, but common in works of From Edward Coke to Henry Maine, the discussions on Medieval scholars on Roman law. The earlier English the “legal fiction” gradually rose from the practical level examples mentioned below suggest that the English legis to the intellectual level, and the discussants themselves fictio or iuris fictio refers to a fiction established in the have changed their positions, from users or makers of judicial process, the validity of which the law recognizes, legal fictions to pure observers, with different view-points. although it is not true. The nature of a fiction is always falsehood according to In England, jurists between the 16th and 19th century its definition, but scholars made different judgments on its often focused upon legal fictions—from St. Germain role in English legal history. William Blackstone praised Christopher to Sir Henry Maine, writers presented legal fictions, but Jeremy Bentham denounced them as numerous works and law reports concerning the topic of tools by which the judges and lawyers stole legislative legal fiction. Those jurists often held different attitudes power. Henry Maine gave his definition of legal fictions to this topic; they have great differences and even open and emphasized their historical role. conflicts upon legal fictions. Since all of their sayings Legal fiction; English jurisprudence; Key words: have the same historical background and material basis, it Intellectual history; Historical role seems that a brief analysis of the intellectual history will be logical and reasonable. After Henry Maine, scholars in Zhang, C. X. (2017). From Coke to Maine: The Formation th of Concept of “Legal Fiction” at English Law. Canadian the common law world in the 20 century—especially in Social Science, 13(6), 41-46. Available from: http:// American jurists, have written numerous works on legal www.cscanada.net/index.php/css/article/view/9661 fictions, specifically or incidentally,2 among which L.L. DOI: http://dx.doi.org/10.3968/9661 Fuller’s long paper with the title “Legal Fictions” is most famous and useful. This paper, based on those authorities, will focus on the materials and scholars’ interpretations to them, then INTRODUCTION try to profile the intellectual history upon this topic. In western legal traditions, the term “legal fiction” seems to have some kind of magic, and the notion behind it is unique in the history of western laws.1 The word “fiction”, 1. LEGAL FICTIONS IN ENGLISH LAWS derived from the Latin verb fingere, refers to the act of Legal fictions have existed in English laws for centuries, 1 Today, “legal fiction” is still an important topic, not only in jurisprudence, but also in those expanded fields of linguistics, 2 We can find a lot of shiny names in the list: Roscoe Pound, psychology and philosophy, where various tools are used in Benjamin Nathan Cardozo, Guido Calabresi, S. F. C. Milsom, J. H. researches. Baker, and so on. 41 Copyright © Canadian Academy of Oriental and Occidental Culture From Coke to Maine: The Formation of Concept of “Legal Fiction” at English Law and persons studying legal knowledge face them at every has changed on the case since the word “law” in English turn. The King’s Bench wanted to extend its jurisdiction law is different from “lex” in Roman law, while the to old personal actions, mainly debt/detinue, which had meaning of “fictions” in materials of English legal been within the jurisdiction of the Common Pleas, and history has always been “falsehood” or “fabrication”. the King’s Bench developed a procedure by the Bill of The medieval Roman law students have pointed out that Middlesex, “the use of violence and weapons” in actions the legal field of the fiction is “falsi pro vero, aequitate of trespass vi et armis, John Doe and Richard Roe in Suadente, facta assumptio”.4 This definition has the key Ejectment, Common Recovery which is similar to iure elements of “falsehood vs. truth” and “fiction vs. equity” cessio at the Roman law, loss and finding goods in Trover, already, which were reserved in writings by authors down and so on. Professor Fuller classified these fictions into to Henry Maine.5 These two factors constitute the clue of “historical fictions” and “non-historical fictions”.3 the following parts. Generally speaking, there are three kinds of fictions 2.1 The Roman-Canon Law Source of the in English law, the first one is fabricating facts which are Concept “Legal Fiction” essential to the causes of actions, and it is closely related St. Germain Christopher’s “Doctor and Student”, to analogy; the second one involves jurisdiction matters published in the early 16th century, has a chapter to such as the criminal charges against the defendant in the discuss the use of “color” (fucus),6 one kind of fictions. bill of Middlesex, and those charges often were made up The Doctor asks that, whether the feigned and untrue with no factual basis. The last one existed in the abuse colors at the common law in various actions stand with of procedures, where the acts or facts were not false, “conscience”? The Student gives an example to answer but were used for other purposes, just as in Common him that if the defendant gave the plaintiff a color of Recovery. action, the judge will not violate his “conscience”, Since most fictions in procedural matters did not because if any default lies, “it is in the tenant, and not directly affect the substantial rights of the litigants, in the in the court”. The Doctor then narrates the nature of the period of general pleading, these fictions might establish “color”, of course using the theological rhetoric and logic. calm and well, and rarely affect the substantial rules. The Accepting medieval theology’s classification of lies, his fictions concerning the essential facts were created by the logic is as follows: People should love neighbors instead litigants, especially by plaintiffs. When special pleading of hurting them. If a lie is of malice and to hurt a neighbor, became common, this kind of fictions often received it is called “mendacium perniciosum”, a deadly sin; if a denials by defendants and by juries of their special lie is only in sport and does not hurt others, it is called verdicts. So these fictions’ validity was concerned with the “mendacium jocosum”, a venial sin; and of a lie is for model of pleading the litigants had chosen, and when the the interests of neighbors and to hurt no one, it is called special pleading model prevailed, the legitimacy of these “mendacium officiosum”, also a venial sin; although it is fictions would be discussed. In common law, this seemed th a slight evil which should be avoided, but the slightest of to begin no later than the first half of the 15 century; the three.7 and the paragraphs of a book generally called “Dialogues Under the subject of “legal fiction”, the importance between a Doctor and a Student” or “Doctor and Student” show that in the early 16th century the rationality of some 4 fictions already has been fully discussed. Quoted in I. Maclean, I. (1992). Interpretation and meaning in the renaissance: The case of law (p.138). Cambridge: Cambridge Most of these three kinds of fictions mentioned above University Press; cf Nancy E. Wright, “Legal Fictions and were originally based upon certain situations which were Interpretation in Attorney General v Pickeringe (1605) and Ben real, but more and more fictitious facts were made up in Jonson’s Masque of Queenes (1609)”, 1 Newcastle L. Rev. 55-72, order to make existing rules applicable to novel cases, and 1995-1996 at 56. 5 These two groups of concepts had kept their importance until this may be called “putting new wine in old bottles”. But Germany jurisprudence changed the definition of “legal ficiton”. The there also were some fictions set up directly by judges, relationship between falsehood and truth is critical to the definition as in cases decided by Sir Edward Coke and his peers. of fiction. It is self-evident that when they have the same value and Contemporary scholars pay more attention to the latter, function, the truth is always higher than falsehood; if applying rules according to the truth could provide enough relief, the fiction is not but most issue points of the “legal fiction” arose out of the allowed to use. It can be seen in a lexicon in the middle of the 19th former. century, under the item of “legal fiction”, as follows: “Fictio cedit veritati. Fictio juris non est ubi veritas.” See J. J. S. Wharton, The Law Lexicon or Dictionary of Jurisprudence, I. G. M’Kinley & J. M. G. Lescure, 1848, p.386. 2. LITERATURE ANALYSIS 6 It is from the Latin verb fucare, the original meaning of which is “to In the term “legal fiction”, the meaning of “law (legal)” paint”, and it may refer to a fiction which gives a litigant “a color of right”, such as the recognition of a non-existent covenant under seal, in order to make the suit go on.
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